Enforcement

NOAA Administrator Dr. Jane Lubchenco has called for a National Enforcement Summit as one component of her response to the Inspector General's Report of January 2010. The Summit will convene a broad array of invited stakeholders and experts to assist NOAA’s leadership in improving compliance with regulations and developing forward-looking strategies to advance its enforcement programs to protect and sustain the nation's marine resources.

NOAA's objectives for this one-day summit are to elicit ideas and recommendations for:

       • working with constituents and state and federal partners to improve compliance and enhance the effectiveness of our marine-related enforcement activities;
       • NOAA's draft plan for setting national and regional enforcement priorities (plan will be released and posted to the website on July 23).
       • improving our communications with regulated communities and other stakeholders; and
       • establishing approaches for consistency and transparency that contribute to public confidence in our enforcement program.

Through the U.S. Institute for Environmental Conflict Resolution, NOAA has retained a neutral third party, Susan Podziba & Associates, to assist in the design and facilitation of the Summit. Susan Podziba is a senior public policy mediator who assists organizations and individuals to construct innovative processes for addressing contentious policy debates and differences. For more information on the U.S. Institute, please click on this link to the USIECR website: www.ecr.gov.

Process

This is a one-day, working Summit with approximately 80 invited participants. Participants were selected based upon their expertise in the issue and experience with natural resource management and regulation at the federal, state, and local levels. In addition, participants will represent a wide cross-section of people from regulated communities and non-governmental organizations.

To develop the Summit design, NOAA solicited advice and input from experienced public and private sector parties who interact with NOAA’s enforcement program as members of regulated communities and stakeholders as well as those who have broad experience with state and federal enforcement programs. Through the U.S. Institute for Environmental Conflict Resolution, NOAA retained Susan Podziba, Public Policy Mediator at Susan Podziba & Associates, to assist in the design and facilitation of the Summit. An overview of the assessment interviews can be found here: Overview of Assessment Interviews

To ensure input is received from those interested in this issue/event, an online survey has been developed. The responses to this survey will be summarized to help guide the summit discussion. In addition, the event will be webcast live and videotaped for later reference.

See this story from NOAA.

 

 

 

 

 

Northeast commercial fishermen paid $642,287 in federal fines to NOAA in 2009, and $899,591 in 2008, according to data released by the agency.  Before 2009, when the number of investigations declined, northeastern fishermen paid between $800,000 to $1 million annually in fines.

by Jonathan Hemmerdinger
Special to Saving Seafood

WASHINGTON – July 20, 2010 – Northeast commercial fishermen paid $642,287 in federal fines to the National Oceanic and Atmospheric Administration in 2009, and $899,591 in 2008, according to data released by the agency.

The money contributed, at least in part, to NOAA’s so-called asset forfeiture fund, which houses commercial fishing penalties and forfeitures of property, which can include seized fish or fishing vessels. The fund also includes money from criminal case settlements prosecuted by the U.S. Department of Justice.

NOAA has been under fire since early July, when the Commerce Department’s Office of Inspector General released a report saying NOAA lacks transparency and accountability in the administration of the fund.

The report also found that NOAA’s enforcement and prosecution divisions are funded heavily–even primarily–with forfeiture funds.

Under law, NOAA may use forfeiture funds to pay expenses "directly related" to investigations, including equipment purchases. But the report found the agency used the funds for seemingly unrelated and unauthorized expenses.

Forfeiture funds were used to purchase some 200 vehicles at a cost of $4.6 million, and enforcement boats, including a $300,000 undercover vessel, the report said.

The agency also spent some $580,000 of forfeiture funds on international travel to 40 destinations, including $109,000 on a fisheries enforcement training workshop in Norway in 2008.

In addition, the report found that NOAA’s Office of General Counsel for Enforcement and Litigation “assumes that virtually all (approximately 99 percent) of its operating costs” are reimbursable by forfeited funds. The division’s other funding source, appropriations, contribute less than $1,000 to GCEL’s operating budget, excluding salaries.

GCEL is the NOAA division tasked with prosecuting “civil penalty cases, permit sanctions and administrative forfeitures,” according to the agency’s website.

Likewise, the report said NOAA’s Office of Law Enforcement “does not have a formal budget for its use of” forfeiture funds. OLE divisions, which recieve only a portion of operating costs from appropriations, “plan for wide use of AFF monies,” said the report.

Pamela Lafreniere, a New Bedford, Mass., attorney who represents commercial fishermen from Maine to Florida, said the inspector general report brings a “certain amount of vindication” to many of her clients.

“They knew they were right all along. Penalties were excessive and unjustified in most instances. [We] have been saying this for years,” she said.

Lafreniere said NOAA’s fines have been inconsistent, ever for similar offenses. First-time fines for gear violations, for instance, range from $5,000 to $80,000, according to NOAA’s penalty of schedules.

Penalty cases are prosecuted by the Office of General Counsel for Enforcement and Litigation–the division that “assumes” nearly all it’s costs are reimburseable with forfeiture funds, according to the report.

Below are total fines paid by Northeast fishermen, and the number of investigations by NOAA’s Office of Law Enforcement, Northeast Division, in recent years.

2009
* 5,426 federally-permitted fishing vessels made 107,334 trips.
*  NOAA’s Office of Law Enforcement, Northeast Enforcement Division, opened 364
investigations in 2009.
* NOAA Northeast General Counsel for Enforcement and Litigation issued 90 NOVAs* to
1.65% of the total fleet.
* 2009 NOVAs* paid totaled $642,287, less than 1 percent of the $841,738,341 annual
landed value.

2008
* 5,400 federally-permitted fishing vessels made 128,266 trips.
* NOAA’s Office of Law Enforcement, Northeast Enforcement Division, opened 498
investigations in 2008.
* NOAA’s Northeast General Counsel for Enforcement and Litigation issued 111 NOVAs* to
2.04% of the total fleet.
* 2008 NOVAs* paid totaled $899,591, less than 1 percent of the $713,474,060 annual
landed value.

2007
* 5,739 federally-permitted fishing vessels made 157,033 trips.
* NOAA’s Office of Law Enforcement, Northeast Enforcement Division, opened 523
investigations.
*  NOAA’s Northeast General Counsel for Enforcement and Litigation issued 120 NOVAs* to
2.09% of the total fleet.
* 2007 NOVAs* paid totaled $823,800, less than 1 percent of the $696,854,004 annual
landed value.

2006
* 5,940 federally-permitted fishing vessels made 162,376 trips.
* NOAA’s Office of Law Enforcement, Northeast Enforcement Division, opened 672
investigations.
* NOAA’s Northeast General Counsel for Enforcement and Litigation issued 114 NOVAs* to
1.9 percent of the total fleet.
* 2006 NOVAs* paid totaled $1,006,969, less than 1 percent of the $723,277,376
annual landed value.

* NOVA: Notice of Violation and Assessment

 

 

 

 

GLOUCESTER, Mass. – July 15, 2010 – According to documents obtained by the Gloucester Times, a carefully screened and selected corps of 25 advisors provided taped interviews of recommendations on how to proceed to the public policy mediator hired to organize the conference, planned for Aug. 3 in Washington, D.C.

But the inner circle was heavy with past and present associates of NOAA's high command and representatives of environmental groups — the core constituency of NOAA chief administrator Jane Lubchenco, who came to the government as former board vice chairwoman with the Environmental Defense Fund, and built her organization with people who traveled in the same circles.

Government law enforcement officials are also a well-represented sector in the advisory group.

But missing are any representatives of the Gloucester or New Bedford groundfishing fleet, where the protest emanated against the capricious actions launched from NOAA regional headquarters here.

Not only were active fishermen from the two hub ports left off the advisory panel, but only one industry lawyer, Eldon Greenberg, was named.

Although he is a respected figure, Greenberg has practiced in Washington since leaving NOAA where he had been general counsel, and has not been involved in the bitter legal combat that centered around the Gloucester Seafood Display Auction, sparking calls for the inspector general's intervention early last year.

Neither Stephen Ouellette, Paul Muniz, nor Pamela Lafreniere — attorneys who together represent the bulk of fishermen and industry businesses that have long chafed under the legal battering of NOAA's police force and litigators — were asked to advise the agency how to fix its law enforcement system.

Read this story in the Gloucester Times

 

 

The following is one of the e-mails referenced in this story:

—–Original Message—–
From: Susan Podziba [mailto:susan@podziba.com]
Sent: Monday, June 07, 2010 2:15 PM
To: kurt.blanchard@dem.ri.gov; philip.anderson@dfw.wa.gov;
daniel.e.schaeffer@uscg.mil; john.webb@usdoj.gov;
Dwight.Holton@usdoj.gov; mccabe.catherine@epa.gov;
Eileen_Sobeck@ios.doi.gov; mgosliner@mmc.gov; sal_amato@fws.gov;
maggieraymond@comcast.net; Eldon Greenberg; sean@pop-hawaii.com;
jschratwieser@igfa.org; jtmartin@purefishing.com; ripc@comcast.net;
abednarek@pewtrusts.org; sroady@earthjustice.org; jsimon@oceana.org;
voshea@asmfc.org; lsimpson@gsmfc.org; rlydecker@boatus.com;
Craig.R.O'Connor@noaa.gov; sean.morton@noaa.gov; Paul.Raymond@noaa.gov
Cc: LHolzer@oceana.org; Zubin Bamji; Andrew Cohen; Suzanne Orenstein;
Susan Podziba
Subject: NOAA Enforcement Summit: Scheduling Interview

Dear NOAA Summit Interviewees,

Recently, you received an email from Andrew Winer, Director of External
Affairs at NOAA, regarding the National Enforcement Summit. NOAA is
convening the Summit to elicit ideas and recommendations to advance its
enforcement programs to protect and sustain the nation's marine
resources.

As explained in the email, I am contacting you to arrange an interview
to discuss your ideas, interests, and concerns relative to the Summit.

I am planning to conduct telephone/skype-video interviews on June 9, 10,
14, 17, and 18, and for those located in the Washington, DC area,
in-person interviews on June 21 and 22.

Please send me three possible times for us to speak, and I will confirm
one.
In addition, please send me the phone number or skype name I should use
to contact you or the address of our meeting location. If none of the
above dates works for you, please offer some alternatives. I expect each
interview to last approximately 60 minutes.

If you have any questions prior to the interview, please email or call
me at 617-738-5320. Thank you in advance for your willingness to make
time to speak with me.

Sincerely,

Susan Podziba

—
Susan Podziba
Public Policy Mediator
Susan Podziba & Associates
Brookline, MA 02445
tel:617-738-5320
fax:617-738-6911
http://www.podziba.com

 

 

 

 

 

Inspector General Todd Zinser has released his office's report on the NOAA Fisheries Enforcement Asset Forfeiture Fund.  According to the report:

The Inspector General  (IG) determined that despite the Office of Law Enforcement (OLE) reporting a balance of $8.4 million as of December 31,2009, OLE officials could not provide evidence that the AFF had ever been audited.  Accordingly, the IG commissioned a major public accounting and auditing firm, KPMG, to conduct a forensic review of the collection of fines and penalties into, and expenditures from, the Asset Forfeiture Fund (AFF).

Using a broad interpretation of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), OLE has extensively used the AFF to pay for materials and services such as vehicles, vessels, travel, and training, while Office of General Counsel for Enforcement and Litigation (GCEL) uses the AFF to fund over 99 percent of its non-salary operating expenses.

KPMG was unable to discern the current balance of the AFF because it found that NOAA did not have a consistent definition of the AFF, and indicated the AFF was more of an abstract concept than a tangible entity within NOAA. 

KPMG determined that no unit or individual within NOAA has a clear understanding of the AFF and how it functions from start to finish.

KPMG was unable to verify the $8.4 million balance provided by OLE and NOAA’s Office of Finance, as cited in our January 2010 report.

KPMG found that during the period of its forensic review (January 1, 2005, through June 30, 2009), the AFF received approximately $96 million (including interest on prior balances), while expending about $49 million through over 82,000 transactions.

KPMG’s review showed a history of inattention within NOAA to a substantial and highly sensitive monetary function of the agency.

KPMG’s findings show that NOAA has administered the AFF in a manner that is neither transparent nor conducive to accountability.

While OLE and GCEL use the AFF for wide-ranging purposes, NOAA has no legal opinion on the applicable language in the MSA regarding authorized uses of the AFF. 

The statutory language “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.” 16 U.S.C. § 1861(e)(1)(C) would appear to restrict AFF expenditures to specific enforcement investigations or proceedings. NOAA, however, has interpreted this statutory passage to allow for use of the AFF to cover a variety of expenses which do not appear to be “…directly related to investigations and civil or criminal enforcement proceedings…” Specific examples of these types of expenditures, such as travel associated with international enforcement conferences, are contained in the report.

Clear from KPMG’s findings is that the AFF has not functioned as a coherent program, despite being a substantial source of agency operational funding―outside and supplemental to annual appropriations―drawn solely from the proceeds of NOAA enforcement actions against industry.

The complete report may be read at the website of the Office of the Inspector General.

 

 

 

 

It's 4:15 in the morning and a dense fog blankets the South Terminal on New Bedford's waterfront. A lost Canadian trucker with a load of lobsters flags down Sgt. Pat Moran, a 26-year veteran of the Environmental Police. Moran guides the stranger to his destination, the Tichon plant, and continues a waterfront patrol that began at 2 a.m.

"I'm down here every day, at every fish house," says Moran, a Mattapoisett resident. Fisheries enforcement on the New Bedford waterfront became his full-time beat around 18 months ago after the Environmental Police contracted with the National Marine Fisheries Service to monitor commercial fisheries in New Bedford.

Enforcement is a delicate subject on the waterfront, with many fishermen resentful of what they consider the overly harsh treatment meted out by state and federal enforcers in the past and not only in New Bedford.

"We've worked hard to develop a relationship with these guys," Moran says. "They see us every single day. It has taken a long time to cultivate it but we understand their struggles. We're not here to hurt anybody."

"These fishermen work very hard in one of the most dangerous jobs out there," Cullen says.

Moran says consistency is the key to earning respect from the waterfront community. "I can write someone a warning two fish houses down for, say, oversized lobsters and come here and they already know about it. If I try to take someone else to court for oversize lobsters, that's not going to fly."

A number of fish house owners agreed that the officers working the waterfront have established a good working relationship with fishermen.

"The law enforcement presence we have now with the Environmental Police is light years better than the Gestapo-like agents that were here in the early '80s," said Eric Orman, owner of Tempest Fisheries. "And the National Marine Fisheries people tended to be from outside the area and outside the job description. These guys are more helpful and have more experience."

Every morning at 6, Moran makes it a point to visit the seafood auction.

Upstairs at the auction, there is plenty of banter between fishermen and police. Moran says he recently asked Carlos Rafael for his autograph after a picture of the fishing magnate appeared in The Standard-Times. "But I told him he had to sign it 'The Codfather,'" Moran jokes.

A knot of men study the wide-screen TV as the auction commences, among them Rafael. "Pat gave me a $50 ticket last week for taking some fluke out before 6 a.m. I was pissed, but what am I going to do? I was wrong," Rafael says. "These guys have a job to do. If they were just sitting in their truck, we'd complain they were wasting the taxpayers money."

Read the full story in SouthCoastToday.com

 

 

With eyes focused Wednesday on our congressional lawmakers' push for higher fishermen's catch allocations, it's important to remember that an even more blatant case of NOAA wrongdoing cannot go unchallenged.

That, once again, is the ludicrous stand by Lois Schiffer, the National Oceanic and Atmospheric Administration's national chief counsel, not to revisit past cases of fishermen and fishing businesses who have clearly paid excessive fines and penalties, and to simply "go forward."

And it's good to hear that U.S. Sens. John Kerry and Scott Brown and Congressman John Tierney have that issue in their sights as they continue to challenge more and more arms of a rogue, wayward agency that continues to show nothing but contempt for the industry, for Congress and, really, the American people.

Read the Gloucester Daily Times editorial in full

 

 

 

The new acting federal chief of the federal government's ocean police force paid a closed-door visit to Gloucester, Massachusetts Mayor Carolyn Kirk and representatives of the fishing industry Monday.

Mayor Kirk told Saving Seafood ""Our meeting was an opportunity to orient new OLE Acting Director Alan Risenhoover and his colleague Chaz Greene from the Office of the General Counsel about the serious concerns we have about enforcement in this region.  It was a good first step towards regaining confidence in NOAA's approach to ensuring industry compliance in an extraordinarily complex regulatory environment."

And despite getting an earful, Alan Risenhoover judged the meeting "a good first step" in the effort to heal open wounds caused by documented abuse of authority on the part of law enforcement agents with the National Oceanic and Atmospheric Administration.

Risenhoover and an entourage headed by Charles Greene — a deputy general counsel for enforcement and litigation — were here for a series of private meetings.

The meeting with Kirk, state Sen. Bruce Tarr, attorneys Stephen Ouellette, Paul Muniz and Pamela LaFreniere of New Bedford was organized in place of a public law enforcement meeting at NMFS' regional offices.

Risenhoover and his party are also scheduled to meet with the Ciulla family, owners and operators of the Gloucester Seafood Display Auction, whose bitter legal struggle against three enforcement actions sparked the national uprising against excessive and improperly motivated federal fisheries police.

Read the complete story at The Gloucester Daily Times.

 

 

 

 

 

The special agent who oversees all Florida officers, Harold Robbins, is facing scrutiny from congressional investigators after being hired in 2004 with apparently no fisheries or natural resources law enforcement experience.

Robbins’ qualifications are being questioned by members of Congress as part of an ongoing investigation into complaints from fishermen who say fisheries agents harassed them and fined them unfairly for years under the leadership of Dale Jones, director of NOAA’s Office of Law Enforcement since 1999. Jones was removed from that post in early April.

Bill Kelley, acting executive director of the Florida Keys Commercial Fishing Association, said NOAA enforcement agents are mostly fair in their treatment of Keys fishermen and are quick to address their concerns, particularly when it comes to trying to catch spiny lobster poachers.

“Our relationship with National Marine Fisheries Service law enforcement is one we’re pretty proud of,” Kelly said.

Rep. Dennis Kucinich, D-Ohio, and Rep. John Tierney, R-Mass. want to know if Robbins, along with at least two other top agents, were hired because of their relationship with Jones. All the men were at one time high-ranking police officers with various agencies in Maryland. Kucinich and Tierney, chairman and member respectively of the Oversight and Government Reform Committee’s domestic policy subcommittee, questioned Jones in a March 4 letter about whether Robbins and the other agents were qualified for their jobs when they were hired.

“Is it true that none of those individuals had fisheries or other natural resources law enforcement experience at the time of their hiring? Is it true that none of those individuals had federal law enforcement training at the time of their hiring?” the congressmen asked in a letter to Jones before his removal.

Neither Robbins nor an Office of Law Enforcement spokeswoman returned e-mailed requests for comment. A request for Robbins’ professional biography was also unanswered.

Read the complete story at Keys Net.

 

 

 

 

 

 

Facing a potential fishermen's boycott organized by Mayor Carolyn Kirk, the National Oceanic and Atmospheric Administration today canceled a law enforcement forum scheduled for next Monday that was to have featured the same Gloucester-based federal police agent and attorney whose tactics against the industry sparked protest and a federal investigation that toppled NOAA's national police chief.

NOAA issued an e-mail in mid-afternoon indicating that the event, part of a broad effort to win over the alienated fishing industry, had been canceled "after consultation" with the mayor.

Last Friday, on learning of the plans, Kirk suggested the community might "boycott" the event unless Andrew Cohen, the agent in charge of the northeast region, and Charles Juliand, head of the regional office of general counsel, were deleted from the program.

[read the Gloucester Daily Times story in full]

 

 

 

NEW BEDFORD — Amid threats of an industry boycott, NOAA Administrator Jane Lubchenco on Wednesday postponed for at least 60 days a forum on fisheries law enforcement in the Northeast.

The move was applauded by Mayor Scott W. Lang, who had joined with Gloucester Mayor Carolyn Kirk in objecting to the participation of some National Oceanic and Atmospheric Administration officials directly implicated by the Commerce Department's inspector general of misconduct in their enforcement.

"Reform the system and then let's have a meeting to discuss it," Lang said.

[read the full story in SouthCoastToday]