Topics of the findings include fines, cases of predisposition, untimely enforcement actions and OLE agents lack of necessary guidance.
The Inspector General 's Findings:
– GCEL's Northeast Division fine assessments and number of charged violations (counts) appear excessive and intended to force respondents into settlement.
e.g. A senior GCEL enforcement attorney in the Northeast Region explained the strategy for settlement to us as follows:
"A 50% monetary settlement, absent an inability to pay or other mitigating factors, is a common practice. This gives the respondent an incentive to settle pre-hearing, but – as long as the initial assessment is high enough – ensures that the goals of punishment and deterrence are reached." [emphasis added]
Congressional testimony in March 2010 given by an attorney representing fishermen in the Northeast, included the following on this issue:
"Although defending an enforcement action is costly, most fishermen, having little faith in the administrative process and judges paid by NOAA, decide to seek a settlement because of the threat in the NOVA that by challenging it the fine can rise to $140,000, and the mental stress from having to deal with the concept of heavy fines hanging over them for months to years."
Additionally, the attorney informed us that in discussing one particular case, the same senior GCEL attorney in the Northeast told him the fine could increase to $140,000 if challenged at hearing;
· -The words, and reported words, of a GCEL senior enforcement attorney in the Northeast foster a perception of predisposition against certain fishermen and their counsel. Such a perception contributes to a loss of confidence in the ALJ system.
e.g. In a September 2007 email to another Northeast GCEL enforcement attorney, the senior GCEL attorney stated, "I'm definitely interested in whacking him civilly (with a kid glove?) too." On a copy of a respondent's letter to NOAA's Northeast Regional Administrator in September 2002, the senior GCEL attorney wrote "Bad move" in explicit reference to the fisherman's statement that he had consulted with a particular attorney. In a court filing, counsel for a fish dealer identified a fisherman who reported witnessing the senior GCEL attorney characterize the dealer as a "lying piece of s***. The senior GCEL attorney acknowledged to us that he has used words to the effect of the former term on occasion. When asked about his annotations in the case file notes, the senior GCEL attorney's reaction was telling us he had assumed nobody would ever see them.
· While GCEL guidance provides for prior violations as an aggravating factor justifying increased penalties, it does not conversely identify first-time violations as a mitigating factor.
· Although fishing regulations promulgated by the Fisheries Management Councils are complex and can change significantly, NOAA appears overly rigid in its interpretation and application of provisions of the regulations. This contributes to industry's negative belief that NOAA only exercises its regulatory discretion to its own benefit.
· Untimely enforcement actions impair both deterrence and the ability of respondents to defend themselves.
· OLE agents lack necessary guidance to ensure that warrantless inspections are conducted properly.
The Inspector General's Recommendations:
· The 19 complaints we have classified as "Appropriate for Further Review" should, in our view, involve one or more of the following actions by NOAA and/or the Department:
(a) create an independent process for equitable relief or resolution of past enforcement cases meeting appropriate eligibility criteria;
(b) effect appropriate changes to regulations, policies, procedures, or practices; and/or
(c) timely address and remedy employee performance or conduct matters.
· As previously recommended in our January 2010 report, NOAA must seriously consider establishing an ombudsman position for the fishing community that reports independently to the Under Secretary.
· Additionally, or as an alternative to an ombudsman, NOAA's enforcement program would benefit from the establishment of an independent office empowered to advocate or advise the regulated community on violation avoidance, compliance assistance, and defense and settlement advocacy. NOAA should consider this given the overall results of our reviews; persistent complaints about the complexity of the regulations; and the fact that the penalty assessment and defense process can put members of the fishing industry-predominantly small business owners-out of business without recourse.
· That NOAA review its regulations and internal guidance concerning warrantless inspections and provide detailed direction to OLE agents.
· That GCEL guidance explicitly identify first-time violations as a mandatory mitigating factor.
Other highlights of the report:
The Secretary has decided to put in place a process to assess whether to take action to modify or remit the penalties in cases that have come to our attention during our review using his authority under Section 308(e) of the Magnuson-Stevens Fishery Conservation and Management Act. Under such a process, the Secretary will retain ultimate authority to decide what actions to take in the cases reviewed.
As the critical findings included in this report are driven by the activities and actions of some NOAA GCEL and OLE personnel in the Northeast, it would be unfair to discredit the reputation of all GCEL attorneys and OLE agents based on these findings.
NOAA is at a critical juncture and, in our view, must take affirmative, equitable action to restore the reputation and soundness of its enforcement program in the Northeast and ensure that corrective actions to address systemic issues are applied nationwide.
The Inspector General will be initiating a formal review of NOAA's progress in implementing the corrective action plans to which you have committed in response to their findings and recommendations with respect to:
(a) their January 21, 2010 report (http://www.oig.doc.gov/oig/reports/2010/OIG-19887.pdf);
(b) their report in April 2010 concerning the destruction of OLE documents during our review;
(c) their July 1, 2010 report on NOAA's Asset Forfeiture Fund (AFF) (http://www.oig.doc.gov/oig/reports/correspondence/2010.07.01_IG_to_NOAA.pdf); and
(d) actions planned in response to the recommendations included in this report.
Many of the individual complaints we examined are credible, have merit, and we consider appropriate for further review.
As we heard in March 2010 during testimony before the Domestic Policy Subcommittee of the Committee on Oversight and Government Reform, counsel for members of the fishing community in the Northeast Region have been petitioning NOAA and Congress for more equitable treatment by NOAA in its enforcement of fishing regulations since at least 2001. The primary result of our review of these cases is to confirm that the types of issues, first raised to NOAA as far back as 2001, pertaining to the Northeast Region, continued through the decade.
While the reforms you have committed to will arrest those issues if effectively implemented, there is a compelling basis to look back at NOAA's enforcement cases to determine whether there are individual complaints and cases that require action to correct unfair enforcement.
The actions planned by the Secretary to establish such a process are significant and would address this finding. In addition, we are prepared to share our investigative results, as appropriate, in support of the process established by the Secretary.
Separate and apart of any independent process that may be established to look back, looking forward NOAA needs to establish some means of continual, direct interface with the fishing community to improve communications and reduce the adversarial nature of the relationship, particularly in the Northeast.
As we recommended in our January 2010 report, and reinforced by our findings here, many of the complaints we heard are more suitable for resolution by an ombudsman reporting independently to the Undersecretary, and not an OIG investigation. While NOAA has concurred with and taken or announced steps to implement most recommendations we have made to date to improve its fisheries enforcement programs and operations, it has not yet acted in response to this recommendation. We recommend that this be seriously considered.
Additionally, or as an alternative to an ombudsman, NOAA's enforcement program would benefit from the establishment of an independent office empowered to advocate or advise the regulated community on violation avoidance, compliance assistance, and defense and settlement advocacy. We recommend that this also be seriously considered.
Read the complete report (PDF)