2010-24446. NOAA Proposed Policy on Prohibited and Authorized Uses of the Asset Forfeiture Fund

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; request for comments.

SUMMARY:

The Magnuson-Stevens Fishery Conservation and Management Act authorizes the Secretary of Commerce through NOAA to pay certain enforcement related costs from sums received as fines, penalties, and forfeitures of property for violations of any marine resource law enforced by the Secretary. Fines, penalties, and forfeitures of property received by NOAA are deposited in an enforcement asset forfeiture fund. The Secretary is proposing a new policy to clearly articulate prohibited and authorized uses of these funds to ensure no conflict of interest- either real or perceived - associated with its use while continuing to promote a sound enforcement program dedicated to conserving and protecting our nation's marine resources. The Secretary requests comments from the public on listed prohibited and authorized uses of the funding and, in particular, expenditures for activities that would promote compliance with regulations promulgated by NOAA.

DATES:

Written comments must be received on or before 5 p.m., EST, on November 29, 2010.

ADDRESSES:

Written comments may be sent by any of the following methods:

• E-mail to the following address: [e-mail]. Please note on your correspondence and in the subject line of e-mail comments the following identifier: “Draft Asset Forfeiture Fund Policy Comments.”;
• Mail or hand deliver to Mr. Mark Paterni, Assistant Director, Office of Law Enforcement, National Oceanic and Atmospheric Administration, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910. Mark the outside of the envelope “Draft Asset Forfeiture Fund Policy Comments”; or
• Fax to 301-427-2055 noting “Draft Asset Forfeiture Fund Policy Comments.”

FOR FURTHER INFORMATION CONTACT:

Mr. Mark Paterni, Assistant Director, Office of Law Enforcement, National Oceanic and Atmospheric Administration, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910, (telephone [phone]).

SUPPLEMENTARY INFORMATION:

I. Proposed Policy on Prohibited and Authorized Uses of the Asset Forfeiture Fund

Strong management and oversight of the Asset Forfeiture Fund (AFF) is essential to restoring the public's trust in the National Oceanic and Atmospheric Administration's (NOAA) Enforcement Program. It is the goal of the Department of Commerce and NOAA to establish a stringent policy for effective oversight of the AFF that will ensure no conflict of interest — real or perceived - associated with its use while continuing to promote a sound enforcement program dedicated to conserving and protecting our nation's marine resources. This policy statement provides clear guidance on the approved uses of the AFF that are consistent with applicable legal authority and that will help assure those regulated that all fines and penalties are fairly and equitably assessed based solely on the severity of the violation. This policy statement also prohibits funding for specific activities. In addition, the Department will expand the use of AFF funding to include compliance assistance to better serve the needs of our stakeholders and improve the way NOAA engages and interacts with its regulated community.

Monies within the AFF are derived from fines, penalties, and property forfeitures associated with violations of marine resource laws (Magnuson-Stevens Act, Endangered Species Act, Marine Mammal Protection Act, and Lacey Act, among others). The Department believes, as did the Congress in establishing the AFF and specifying the allowable uses, that it is appropriate to use the proceeds of NOAA's enforcement program to offset in part the costs of administering that program. Those who violate these laws should help offset the cost of protecting our marine resources in lieu of those costs being borne by taxpayers. Further, the availability of these funds for enforcement reduces the requirement for additional appropriations and expands NOAA's ability to respond to violations of the laws it is charged with enforcing. NOAA's Office of Law Enforcement's (OLE) National Enforcement Operations Manual and the Office of the General Counsel for Enforcement and Litigation's (GCEL) Operating Procedures Manual will include the new policy, along with detailed guidance.

To ensure accountability and transparency in AFF accounting, NOAA will take a number of actions. The Agency will clearly identify and track AFF monies received and expended, and centralize the AFF approval processes for expenditures. Starting with the FY 2012 budget submission, NOAA will identify and account for the AFF in its annual budget. Beginning in FY2011, an annual operating budget will be developed for the AFF based upon the policy, and proposed modifications to that budget must be approved by the NOAA Chief Financial Officer.

Separately, NOAA will establish appropriate uses of other enforcement proceeds retained by the Secretary but not part of the AFF. In particular, NOAA will examine the use of fines and penalties collected for violations of the Northeast Multispecies Fishery Management Plan, which under section 311(f) of the Magnuson-Stevens Act must be used to enforce the Plan.

Prohibited Uses

The policy prohibits the use of the AFF for the following activities:

• Funding for any NOAA employee labor, benefits, or awards;
• Funding for any vehicle purchases or leases, including patrol vehicles, undercover vehicles, all terrain vehicles, vehicles assigned to agents to carry out their enforcement duties, or associated equipment, upgrades, modification, or maintenance of current vehicles;
• Funding for any vessel purchases or leases, including patrol vessels, undercover vessels, or associated equipment upgrades, modification, or maintenance of current vessels;
• Funding for any domestic or foreign travel that is not related to specific investigations, enforcement proceedings, or required training, such as attendance at general conferences or seminars except as specifically authorized below;
• Funding for any training that is not specifically required by policy as an integral part of an employee's job as detailed below; and
• Funding for the purchase of any equipment that is not directly related to a specific investigation or enforcement proceeding, including weapons and ammunition, uniforms, copiers or facsimile machines, desktop or laptop computers, Blackberries or other PDAs, cell phones or radios, video or audio recording equipment; or office furniture.

Authorized Uses

The policy authorizes funding for certain specific enforcement-related activities:

• Compliance assistance as discussed further below;
• Costs directly related to the proper storage of seized fish, vessels, or other property during a civil or criminal proceeding;
• Rewards for information related to enforcement actions;
• Valid liens, mortgages, and claims against, or interest in, seized or forfeited property;
• Reimbursement to other Federal or State agencies for enforcement related services provided pursuant to an agreement entered into with the Secretary;
• Expenditures related directly to specific investigations and enforcement proceedings; such as interviewing expert witnesses, witness participation at trials, hearings or depositions, expert witness fees, case support contracts, or required forensic or evidence handling supplies;
• Attendance at international bi- or multi-lateral meetings and negotiations to discuss enforcement specific agenda items;
• Training and associated travel required by policy for all enforcement personnel, mandatory courses at the Federal Law Enforcement Training Center and required field training assignments;
• Mandatory annual in-service or national training for OLE and GCEL employees;
• Training for Federal and state partners regarding Federal statutes and regulations under NOAA's authorities;
• Enforcement unique information technology infrastructure, including hardware, software and maintenance, required specifically for NOAA's enforcement and legal systems and databases;
• Annual interagency agreement and contract costs for the administrative adjudication process, including Administrative Law Judges; and,
• Efforts to combat international unregulated and unreported fishing through annual funding to the International Monitoring, Control, and Surveillance Network.

Compliance Assistance

The Department will implement activities to better serve the needs of our stakeholders and improve the way NOAA engages and interacts with its regulated community. This new component will be aimed at improving and expanding NOAA's compliance assistance, collaboration, and outreach activities. The Department will work with the Marine Fisheries Advisory Committee (additional information at: http://www.nmfs.noaa.gov/​ocs/​mafac/​) to develop proposals for activities or program enhancements that will improve compliance with all marine resource statutes. Activities may include, but are not limited to:

• Placing a full or part-time Compliance Assistance Liaison in NMFS Regional Offices as needed, beginning with New England;
• Expanding the use of regional enforcement workshops and training sessions to bring together and educate stakeholders on regulations and other requirements associated with fishery management plans, National Marine Sanctuaries, and activities related to the protection of endangered species and marine mammals;
• Educating and involving fishermen in the development of potential solutions to regional and national enforcement-related issues; and
• Improving communication with regulated communities and the general public relative to enforcement issues through increased OLE and GCEL participation in Regional Fishery Management Council meetings or Sanctuary Advisory Committee meetings, improved websites, easy to understand compliance guides, and timely electronic or other notifications of changes in regulations.

These compliance assistance activities would likely be funded by the AFF through agreements with federal and state partners, or in the case of efforts addressing NE Multispecies, through enforcement proceeds available to the Secretary under section 311(f) of the Magnuson-Stevens Act.

II. Additional Information

Ensuring a Strong Enforcement Program

NOAA and other federal agencies with similar authorities must maintain adequate funding for enforcement. At the National Enforcement Summit held in early August, participants stressed the need for effective and fair enforcement around the country. They offered suggestions that NOAA should focus more on compliance and outreach to better balance its deterrence efforts.

The need for a strong enforcement program is widely recognized and supported as a key component of supporting legal fishers and the American public through barring illegal imports, ending illegal domestic harvests, and ensuring safe and wholesome seafood products. As NOAA completes the broad set of activities aimed at improving its enforcement programs, including a corrective action plan for the AFF, NOAA must ensure an adequate funding level is maintained. Otherwise, the many benefits of a strong enforcement program would be at risk.

Legislative Authorities

The specific statutory authority for use of the fund for certain enforcement related purposes is found in section 311(e)(1) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861). Section 311(e)(1) authorizes six types of expenditures: (A) the reasonable and necessary costs incurred in providing temporary storage, care, and maintenance of seized fish or other property pending disposition of any civil or criminal proceeding alleging a violation of any provision of this Act or any other marine resource law enforced by the Secretary with respect to that fish or other property; (B) a reward of not less than 20 percent of the penalty collected or $20,000, whichever is the lesser amount, to any person who furnishes information which leads to an arrest, conviction, civil penalty assessment, or forfeiture of property for any violation of any provision of this Act or any other fishery resource law enforced by the Secretary; (C) any expenses directly related to investigations and civil or criminal enforcement proceedings, including any necessary expenses for equipment, training, travel, witnesses, and contracting services directly related to such investigations or proceedings; (D) any valid liens or mortgages against any property that has been forfeited; (E) claims of parties in interest to property disposed of under section 612(b) of the Tariff Act of 1930 (19 U.S.C. 1612(b)), as made applicable by section 310(c) of this Act or by any other marine resource law enforced by the Secretary, to seizures made by the Secretary, in amounts determined by the Secretary to be applicable to such claims at the time of seizure; and (F) reimbursement to any Federal or State agency, including the Coast Guard, for services performed, or personnel, equipment, or facilities utilized, under any agreement with the Secretary entered into pursuant to subsection (a), or any similar agreement authorized by law.Though not part of the AFF, section 311(f) provides that fines and penalties collected for violations of the Northeast Multispecies Fishery Management Plan shall be used for purposes of enforcing the Plan.

Authority: 16 U.S.C. 1801 et seq.

Dated: September 24, 2010.

Eric C. Schwaab,

Assistant Administrator For Fisheries, National Marine Fisheries Service.