[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Notices]
[Pages 16386-16387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6869]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XZ29


NOAA Policy on Prohibited and Approved Uses of the Asset 
Forfeiture Fund

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

ACTION: Notice.

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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. NOAA finalized its policy on March 16, 2011, to 
clearly articulate prohibited and approved 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.

SUPPLEMENTARY INFORMATION:

I. NOAA Policy on Prohibited and Approved Uses of the Asset Forfeiture 
Fund

    Strong management and oversight of the Asset Forfeiture Fund (AFF) 
is essential to ensuring the public's trust in the National Oceanic and 
Atmospheric Administration's (NOAA) Enforcement Program. While the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) provides broad statutory authority for use of the AFF,\1\ 
the Department of Commerce and NOAA are implementing this policy 
limiting approved uses as a means of ensuring no conflict of interest--
real or perceived--is associated with the use of the AFF while 
continuing to promote a sound enforcement program dedicated to 
conserving and protecting our Nation's marine resources. To this end, 
the policy provides guidance on the prohibited and approved uses of the 
AFF that are consistent with but narrower than that authorized under 
applicable legal authorities. The AFF will also be used for compliance 
assistance activities, consistent with legal authorities, to better 
serve the needs of our stakeholders and improve the way NOAA engages 
and interacts with its regulated community.
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    \1\ Memorandum from Cameron F. Kerry, Commerce Department 
General Counsel, and Lois Schiffer, NOAA General Counsel, Legal 
Opinion Regarding Collection and Use of Fines, Penalties, and 
Forfeiture Proceeds Pursuant to Section 311(e)(1) of the Magnuson-
Stevens, Fishery Conservation and Management Act (Feb. 28, 2011).
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    The Department believes, as did Congress in establishing the AFF 
and specifying the authorized 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.
    To ensure accountability and transparency in AFF accounting, NOAA 
has taken a number of actions to improve oversight, management, and 
tracking of the AFF in addition to this policy. NOAA has identified and 
is tracking AFF monies received and expended, and has centralized the 
AFF approval processes for expenditures. In the FY 2012 budget 
submission, NOAA will identify and account for the AFF in its annual 
budget. For FY 2011, an annual operating budget has been developed for 
the AFF based upon this policy, and modifications to that budget must 
be approved by the NOAA Chief Financial Officer.

[[Page 16387]]

    This policy specifically applies only to funding 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) and expended 
by NOAA's enforcement program (OLE and GCEL) under section 
311(e)(1)(A)-(F) and 311(f)(4) of the Magnuson-Stevens Act.\2\ NOAA has 
established detailed accounting measures to track receipts and control 
expenditures under these authorities.
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    \2\ This policy does not address certain proceeds collected and 
disbursed pursuant to 16 U.S.C. 973o (South Pacific Tuna Act), 16 
U.S.C. 1437(f)(1)(C) (National Marine Sanctuaries Act), and 16 
U.S.C. 1824(e)(8) (governing the Western Pacific Insular Areas). 
Those proceeds are segregated from the AFF and subject to the 
specific uses detailed in those statutory provisions.
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    In particular, NOAA has established separate budget codes to 
segregate fines and penalties collected under section 311(f)(4) (for 
violations of the Northeast Multispecies Fishery Management Plan) 
within the larger AFF to ensure those funds are expended in New England 
and subject to the provisions of this policy.
    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 and any additional guidance.

Prohibited Uses

    The policy prohibits the use of the AFF for the following 
activities:
    <bullet> Funding for any NOAA employee labor, benefits, or awards;
    <bullet> 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;
    <bullet> Funding for any vessel purchases or leases, including 
patrol vessels, undercover vessels, or associated equipment upgrades, 
modification, or maintenance of current vessels;
    <bullet> 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;
    <bullet> Funding for any training that is not specifically required 
by policy as an integral part of an employee's job as detailed below; 
and
    <bullet> 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.

Approved Uses

    The policy approves the use of the AFF for certain specific 
enforcement-related activities:
    <bullet> Compliance assistance as discussed further below;
    <bullet> Costs directly related to the proper storage of seized 
fish, vessels, or other property during a civil or criminal proceeding;
    <bullet> Rewards of not less than 20 percent of the penalty 
collected or $20,000, whichever is the lesser amount, for information 
related to enforcement actions;
    <bullet> Valid liens, mortgages, and claims against, or interest 
in, seized or forfeited property;
    <bullet> Reimbursement to other Federal or State agencies for 
enforcement related services provided pursuant to an agreement entered 
into with NOAA;
    <bullet> Expenditures directly related to specific investigations 
and enforcement proceedings; such as travel specific to an individual 
investigation or individual case or enforcement proceeding, 
interviewing expert witnesses, witness participation at trials, 
hearings or depositions, expert witness fees, case support contracts, 
forensic examinations, or required forensic or evidence handling 
supplies;
    <bullet> Attendance at international and domestic bi- or multi-
lateral meetings and negotiations to discuss enforcement specific 
agenda items;
    <bullet> 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;
    <bullet> Annual in-service or national training for OLE and GCEL 
employees;
    <bullet> Training for Federal and State partners regarding Federal 
statutes and regulations under NOAA's authorities;
    <bullet> Enforcement unique information technology infrastructure, 
including hardware, software and maintenance, required specifically for 
NOAA's enforcement and legal systems and databases;
    <bullet> Interagency agreement and contract costs for the 
administrative adjudication process, including Administrative Law 
Judges;
    <bullet> Costs associated with review of past enforcement actions 
in the aggregate (e.g. hiring a third party to review past 
investigations and enforcement proceedings conducted by NOAA);
    <bullet> Efforts to combat international unregulated and unreported 
fishing through annual funding to the International Monitoring, 
Control, and Surveillance Network ; and,
    <bullet> Costs related to independent audits of the fund to ensure 
proper collection and use of fines, penalties, and forfeiture proceeds.

Compliance Assistance

    The Department is implementing activities to better serve the needs 
of its stakeholders and improve the way NOAA engages and interacts with 
its regulated community. This new component is aimed at improving and 
expanding NOAA's compliance assistance, collaboration, and outreach 
activities. Activities funded from the AFF may include, but are not 
limited to:
    <bullet> 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;
    <bullet> Educating and involving fishermen in the development of 
potential solutions to regional and national enforcement-related 
issues; and
    <bullet> 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.
    Consistent with section 311(e)(1)(F) of the Magnuson-Stevens Act, 
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 Northeast Multispecies specifically, through 
enforcement proceeds available to the Secretary under section 311(f)(4) 
of the Magnuson-Stevens Act.

    Dated: March 17, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2011-6869 Filed 3-18-11; 4:15 pm]
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