Since its release, National Marine Fisheries Service officials have been appropriately cautious in their comments on the report of the Inspector General on fisheries enforcement. However, on February 24, 2010, at a meeting of the Marine Fisheries Advisory Committee held at the Sheraton Waikiki in Honolulu, Mr. Samuel D. Rauch, Deputy Assistant Administrator for Regulatory Programs was asked to brief meeting attendees on the report and "the current status of the issues associated with it."
M. Rauch reports directly to National Marine Fisheries Service director Eric Schwaab, and oversees all of the regional offices, as well as Sustainable Fisheries, Protected Resources, Habitat Conservation, and Aquaculture Programs.
See NMFS senior staff biographies
The following is an excerpt from the official meeting transcript:
I'm Sam Rauch. I don't actually oversee the enforcement branch of the Fisheries Service. That is done through the other Deputy John Oliver. Nor do I oversee the enforcement attorneys. They all report directly. But I am familiar with both, and so I will give you the report, the background and synopsis of that.
So this is the background, and I apologize for the typo in enforcement. In June of last year Dr. Lubchenco asked the Commerce Inspector General to conduct a comprehensive nationwide review of policies. There had been some pressure in the northeast, particularly some defendants have claimed that they had been unfairly singled out, which is actually quite common with any law enforcement effort where potential defendants try to in order to defray the focus on them, try to make public announcements. But they were particularly successful given all the things that are going in the northeast. Dr. Lubchenco decided, though, that it wasn't useful to just look at the northeast in isolation, but to ask the IG to do a nationwide review of all the policies that were going on. The Inspector General talked to a lot of people, and I'll talk about some of those things in a minute. And I will outline both the findings of the IG report and what actions Dr. Lubchenco has taken in response to that, in an immediate response to that report.
So as I said, the IG went and interviewed a lot of various people they called the complainants. They did not make an effort to verify the individual complaints. They did list a whole bunch of them. And the report is on the website. So if you would like to see what everybody was saying?
And you will see from the results most of the things that the industry raised, the IG did not find it meritorious to address. But these are the kinds of things, mainly that the regulations were complicated, unclear and confusing. And for those of you who sat through the catch shares discussions of our existing catch share programs you’ll understand. That is true.
I don't know whether they're unduly complicated, but they are complicated, unclear and confusing. And it is difficult for a well meaning fisherman at all the times to keep track of all the changes and where they’re supposed to be, what they can catch and all that. The Council process creates a lot of that. Because we're trying to balance out the need for clear mandates, we have the flexibility to try — economic benefit. So that’s as far as it's true.
They were concerned that the regulatory processes were, in their view, arbitrary and lacked transparency. Particularly they were concerned by what they thought was the power given to the NOAA GCEL attorneys. GCEL is General Counsel for Enforcement and Litigation.
And the process for those of you aren’t familiar is our Office of Law Enforcement is the investigative branch. They're basically the policemen. They will go out, often times in conjunction with state enforcement agents, prepare a case, refer the case then to General Counsel for enforcement litigation. General Counsel would ultimately decide whether to bring charges or whether to set the penalty.
So once the police officers OLE is done, it's up to GCEL to decide what to do with it. That's very similar to any prosecutor’s office where you've got the policemen doing the investigation and then the prosecutors decide. You've seen Law and Order, that's exactly what happens.
And then so they also complained that because of the broad powers that the Fisheries’ enforcement posture is aggressive and intrusive.
So the IG looked at all of that and made three basic findings, three basic results. One was that the senior leadership in headquarters elements needed to exercise Rigor [sic] management and oversight of the regional enforcement situations. The basic for this was they had all these allegations and they came asked CG and OLE well what do you have to say about that? And they provided explanations, but they weren't able to back it up. Because each enforcement case is different. But there was no overarching reviewing of these documents. The individual enforcement attorneys did not have to seek approval for their actions. They were concerned that NOAA as a whole was not engaging in oversight. Were we spending our enforcement resources in the right place as opposed to the initiative of the individual enforcement agent? And while I think we had responses to that, we weren't able to document it in a comprehensive way. Because we lacked a management review system that was effective. We couldn't gather the information on fines and penalties that they wanted. Within that you'll see if you read the report, they found that the fines in the northeast were excessive compared or were not in proportion to fines in other places in the country. And our enforcement people indicated well there's a reason for that. But since we didn't have a good database, they weren't able to articulate how that was. And you can read through the IG report and there's great frustration with the fact that we couldn't provide them useful data in a useful manner. The second one –
MR. SIMPSON: Now we're talking northeast?
MR. RAUCH: This is across the country. This is a national one. They did find in the northeast that the amount of penalties issued, that the settlement amounts were different from those ratios elsewhere in the country.
MR. SIMPSON: Right. But the management tracking and so —
MR. RAUCH: Management tracking is all national. The faults they found were national faults. They talked to people around the country and these were national faults.
Number two deals with the guidance and internal controls. They found that GCEL did not have an internal operations manual. That there wasn't as I indicated an approval process for individual charging decisions, and a number of other internal controls were lacking. They did not necessarily find that it was arbitrary, but it said that the lack of their ability to comprehensively look at what we were doing and to say that there were supervisory controls led to a perception that it was arbitrary and unfair. They didn't have enough information to determine on their own whether it was arbitrary or unfair, and I think that comes out through the report.
The last one that they found is that they looked at the fact that percent of the OLE, which is the police officers basically, were criminal investigators. Ten percent were uniform patrolmen, regulatory officers. And they were mindful of some of the complaints that said this led to a criminal mentality on the part of the fishermen. That there is an important distinction that other agencies make between criminal investigative work and regulatory investigative work. And some tools that are available on the criminal side are not available on the regulatory side. And other agencies make a strong effort to separate the two processes and we don't.
They did not necessarily say that the composition was wrong. They did recognize that we have much less enforcement agents than some of these other agencies that they’ve looked at. But they said we need to reassess whether that's the right composition. And they did find that the blurring of the line between criminal and regulatory missions and then the fact that we have those criminal investigator have at least led to the perception that we have overly aggressive criminals. And once again, they didn't have the data to actually say this was wrong, but they just suggested that we needed to reassess the workforce composition.
So here's the recommendations. They have five of them.
Read the complete transcript on the NOAA website