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55-220 PDF 2010

SETTING THE BAR FOR 

ACCOUNTABILITY: IMPROVING 

NOAA FISHERIES LAW 

ENFORCEMENT PROGRAMS 

AND OPERATIONS 

OVERSIGHT HEARING 

BEFORE THE

SUBCOMMITTEE ON INSULAR AFFAIRS, 

OCEANS AND WILDLIFE 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

Wednesday, March 3, 2010 

Serial No. 111-45 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html 

or 

Committee address: http://resourcescommittee.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

NICK J. RAHALL, II, West Virginia, Chairman 

DOC HASTINGS, Washington, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Frank Pallone, Jr., New Jersey 

Grace F. Napolitano, California 

Rush D. Holt, New Jersey 

Rau ́l M. Grijalva, Arizona 

Madeleine Z. Bordallo, Guam 

Jim Costa, California 

Dan Boren, Oklahoma 

Gregorio Sablan, Northern Marianas 

Martin T. Heinrich, New Mexico 

George Miller, California 

Edward J. Markey, Massachusetts 

Peter A. DeFazio, Oregon 

Maurice D. Hinchey, New York 

Donna M. Christensen, Virgin Islands 

Diana DeGette, Colorado 

Ron Kind, Wisconsin 

Lois Capps, California 

Jay Inslee, Washington 

Joe Baca, California 

Stephanie Herseth Sandlin, South Dakota 

John P. Sarbanes, Maryland 

Carol Shea-Porter, New Hampshire 

Niki Tsongas, Massachusetts 

Frank Kratovil, Jr., Maryland 

Pedro R. Pierluisi, Puerto Rico 

Vacancy 

Don Young, Alaska 

Elton Gallegly, California 

John J. Duncan, Jr., Tennessee 

Jeff Flake, Arizona 

Henry E. Brown, Jr., South Carolina 

Cathy McMorris Rodgers, Washington 

Louie Gohmert, Texas 

Rob Bishop, Utah 

Bill Shuster, Pennsylvania 

Doug Lamborn, Colorado 

Adrian Smith, Nebraska 

Robert J. Wittman, Virginia 

Paul C. Broun, Georgia 

John Fleming, Louisiana 

Mike Coffman, Colorado 

Jason Chaffetz, Utah 

Cynthia M. Lummis, Wyoming 

Tom McClintock, California 

Bill Cassidy, Louisiana 

James H. Zoia, Chief of Staff 

Rick Healy, Chief Counsel 

Todd Young, Republican Chief of Staff 

Lisa Pittman, Republican Chief Counsel 

SUBCOMMITTEE ON INSULAR AFFAIRS, OCEANS AND WILDLIFE 

MADELEINE Z. BORDALLO, Guam, Chairwoman 

HENRY E. BROWN, JR., South Carolina, Ranking Republican Member 

Dale E. Kildee, Michigan 

Eni F.H. Faleomavaega, American Samoa 

Frank Pallone, Jr., New Jersey 

Gregorio Sablan, Northern Marianas 

Donna M. Christensen, Virgin Islands 

Diana DeGette, Colorado 

Ron Kind, Wisconsin 

Lois Capps, California 

Carol Shea-Porter, New Hampshire 

Frank Kratovil, Jr., Maryland 

Pedro R. Pierluisi, Puerto Rico 

Nick J. Rahall, II, West Virginia, ex officio 

Vacancy 

Don Young, Alaska 

Jeff Flake, Arizona 

Doug Lamborn, Colorado 

Robert J. Wittman, Virginia 

John Fleming, Louisiana 

Jason Chaffetz, Utah 

Bill Cassidy, Louisiana 

Doc Hastings, Washington, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Wednesday, March 3, 2010 ......................................................... 1 

Statement of Members: 

Bordallo, Hon. Madeleine Z., a Delegate in Congress from Guam ............... 1 

Prepared statement of ............................................................................... 2 

Cassidy, Hon. Bill, a Representative in Congress from the State of 

Louisiana ....................................................................................................... 3 

Statement of Witnesses: 

Buckson, Lt. Colonel Bruce, Deputy Director, Division of Law 

Enforcement, Florida Fish and Wildlife Conservation Commission ......... 41 

Prepared statement of ............................................................................... 43 

Response to questions submitted for the record ..................................... 46 

Letter from the Gulf States Marine Fisheries Commission ................... 49 

Frank, Hon. Barney, a Representative in Congress from the State of 

Massachusetts ............................................................................................... 33 

Jones, Hon. Walter B., a Representative in Congress from the State 

of North Carolina .......................................................................................... 28 

Prepared statement of ............................................................................... 32 

Lubchenco, Dr. Jane, Under Secretary for Oceans and Atmosphere, and 

Administrator, National Oceanic and Atmospheric Administration, U.S. 

Department of Commerce ............................................................................. 16 

Prepared statement of ............................................................................... 18 

Response to questions submitted for the record ..................................... 21 

Tierney, Hon. John F., a Representative in Congress from the State 

of Massachusetts ........................................................................................... 4 

Walsh, James P., Partner, Davis Wright Tremaine LLP .............................. 50 

Prepared statement of ............................................................................... 54 

Response to questions submitted for the record ..................................... 59 

Zinser, Hon. Todd J., Inspector General, U.S. Department of Commerce ... 6 

Prepared statement of ............................................................................... 8 

Response to questions submitted for the record ..................................... 13 

Additional materials supplied: 

Flanigan, Patrick, Law Offices of Patrick Flanigan, Swarthmore, 

Pennsylvania, Letter submitted for the record ........................................... 63 

McKeon, Sean, President, North Carolina Fisheries Association, 

Statement submitted for the record ............................................................ 30 

(1) 

OVERSIGHT HEARING ON ‘‘SETTING THE BAR 

FOR ACCOUNTABILITY: IMPROVING NOAA 

FISHERIES LAW ENFORCEMENT PROGRAMS 

AND OPERATIONS.’’ 

Wednesday, March 3, 2010 

U.S. House of Representatives 

Subcommittee on Insular Affairs, Oceans and Wildlife 

Committee on Natural Resources 

Washington, D.C. 

The Subcommittee met, pursuant to call, at 2:37 p.m. in Room 

1324, Longworth House Office Building, Hon. Madeleine Z. 

Bordallo [Chairwoman of the Subcommittee] presiding. 

Present: Representatives Bordallo, Christensen, Shea-Porter, 

Young, and Cassidy. 

Ms. BORDALLO. Good afternoon everyone. The Oversight Hearing 

by the Subcommittee on Insular Affairs, Oceans and Wildlife will 

come to order. Today we will hear testimony on ‘‘Setting the Bar 

for Accountability: Improving NOAA Fisheries Law Enforcement 

Programs and Operations.’’ 

STATEMENT OF HON. MADELEINE Z. BORDALLO, A DELEGATE 

IN CONGRESS FROM THE TERRITORY OF GUAM 

Ms. BORDALLO. Today’s hearing is the direct result of a serious 

report issued in January of this year by the Department of 

Commerce, Office of Inspector General, regarding the activities and 

policies of the National Oceanic and Atmospheric Administration’s 

fisheries law enforcement operations and programs. 

This is not the first report we have received from the IG regarding these matters, but I sincerely hope that this Administration 

will take the steps necessary to ensure that it is the last. Regrettably, in many regions of the country, the dysfunctional relationship between NOAA and the fishing industry has reached a breaking point. If not remedied, this will have long-lasting, detrimental 

effects—not only on our fishing communities, but on the very 

resources the agency is charged with managing and protecting. 

In June of 2009, at the urging of several Members of Congress, 

NOAA Administrator Lubchenco asked the IG to review the operations of the NOAA Office of Law Enforcement within the National 

Marine Fisheries Service and the Office of General Counsel for Enforcement and Litigation. The review identified systemic nationwide issues in a highly charged regulatory climate contributing to 

the dysfunctional relationship between NOAA and the fishing 

industry. 

Such issues include a nine-to-one ratio of criminal to civil investigators on staff, despite the fact that more than 90 percent of their 

caseload is non-criminal, regulatory violations, a record of nonuniform prosecutions, an utterly opaque penalty process, and 

chronic deficiencies in NOAA’s enforcement data system. The review made several recommendations to improve this situation of 

2 

mismanagement and distrust, which I am sure Inspector General 

Zinser will elaborate on in his testimony. 

Two weeks later, NOAA issued a 10-point plan to address these 

issues that is in the process of being implemented. I commend 

Administrator Lubchenco for the steps she has taken thus far to 

address a very serious situation that was largely inherited, and I 

trust that she is committed to making it right. Still, many 

questions remain, and it is not yet clear that everyone involved 

shares her commitment. 

Last week, we were informed by the IG’s office that the Director 

of the Office of Law Enforcement, Mr. Dale Jones, authorized the 

destruction of documents at the NOAA law enforcement headquarters in Silver Spring in November, while his office was already 

under investigation by the IG. The office-wide document disposal 

effort was not approved by the IG’s office or by Mr. Jones’ superiors 

at NOAA. 

While it is certainly possible that the timing of such a housecleaning could be coincidental, and that no documents of importance were destroyed, how will we ever know? And how is it 

possible that Mr. Jones, an investigator himself, thought that 

document shredding was appropriate at the same time that his 

office was under investigation? On its face, it does not seem possible, and it certainly does not give the appearance of an office that 

is committed to a fair and open investigation or a resolution of the 

ongoing distrust that exists within the fishing industry. 

The current reality is that while individual investigators may be 

doing their best job possible, the management of the fisheries law 

enforcement system is flawed, and there is much more in the way 

of reform that will be needed. The question is whether the current 

director of the Office of Law Enforcement has the credibility to initiate those reforms. 

So I look forward today to hearing from our witnesses, and I 

hope that, with input from Congressional colleagues, this hearing 

will be a step toward a better fisheries enforcement system that 

serves both our fishing communities and our fisheries. At this time, 

I recognize the gentleman from Louisiana, Mr. Cassidy, the Ranking Republican Member of the Subcommittee, for any statement 

that he may have. 

[The prepared statement of Chairwoman Bordallo follows:] 

Statement of The Honorable Madeleine Z. Bordallo, Chairwoman, 

Subcommittee on Insular Affairs, Oceans and Wildlife 

Today’s hearing is the direct result of a very serious report from the Department 

of Commerce Office of Inspector General (IG) regarding the activities and policies 

of National Oceanic and Atmospheric Administration’s (NOAA) Fisheries law enforcement operations and programs that was issued in January of this year. 

This is not the first report we have received from the IG regarding these matters, 

but I sincerely hope that this Administration will take the steps necessary to ensure 

that it is the last. Regrettably, in many regions of the country the dysfunctional relationship between NOAA and the fishing industry has reached a breaking point. 

If not remedied, this will have long-lasting, detrimental effects not only on our fishing communities, but on the very resources the Agency is charged with managing 

and protecting. 

In June 2009, at the urging of several Members of Congress, NOAA Administrator 

Lubchenco asked the IG to review the operations of the NOAA Office of Law Enforcement within the National Marine Fisheries Service and the Office of General 

Counsel for Enforcement and Litigation. The Review identified ‘‘systemic, nationVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
3 

wide’’ issues and a ‘‘highly charged regulatory climate’’ contributing to the dysfunctional relationship between NOAA and the fishing industry. Such issues include a 

9 to 1 ratio of criminal to civil investigators on staff, despite the fact that more than 

90 percent of their caseload is non-criminal, regulatory violations; a record of nonuniform prosecutions; an utterly opaque penalty assignment process; and chronic deficiencies in NOAA’s enforcement data system. 

The Review made several recommendations to improve this situation of mismanagement and distrust which I am sure Inspector General Zinser will elaborate 

on in his testimony. Two weeks later, NOAA issued a ten point plan to address 

these issues that is in the process of being implemented. I commend Administrator 

Lubchenco for the steps she has taken thus far to address a serious situation that 

was largely inherited, and I trust that she is committed to making it right. Still, 

many questions remain, and it is not yet clear that everyone involved shares her 

commitment. 

Last week, we were informed by the IG’s office that the Director of the Office of 

Law Enforcement, Dale Jones, authorized the destruction of documents at the 

NOAA law enforcement headquarters in Silver Spring, in November while his office 

was already under investigation by the IG. The office-wide document disposal effort 

was not approved by the IG’s office or by Mr. Jones’ superiors at NOAA. 

While it’s certainly possible that timing of such a housecleaning could be coincidental, and that no documents of importance were destroyed, how will we ever 

know? And how is it possible that Mr. Jones, an investigator himself, thought that 

document shredding was appropriate at the same time that his office was under investigation? On its face, it does not seem possible, and it certainly does not give the 

appearance of an office that is committed to a fair and open investigation or a resolution of the ongoing distrust that exists within the fishing industry. 

The current reality is that while individual investigators may be doing their best 

job possible, the management of the fisheries law enforcement system is flawed and 

there is much more in the way of reform that will be needed. The question is, 

whether the current Director of the office of law enforcement has the credibility to 

initiate those reforms. 

I look forward to hearing from our witnesses today, and hope that with input from 

my congressional colleagues, this hearing will be a step toward a better fisheries 

enforcement system that serves both our fishing communities and our fisheries. 

STATEMENT OF HON. BILL CASSIDY, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF LOUISIANA 

Mr. CASSIDY. Thank you, Madame Chair. This hearing was 

scheduled to examine disturbing findings about the NOAA fisheries 

enforcement programs, as reported by the Department of Commerce Inspector General. Clearly, fisheries laws need to be enforced, and those that cheat affect the livelihoods of those who play 

by the rules. But according to the IG’s report, in at least one region 

of the country, fisheries enforcement has been considered arbitrary, 

and enforcement officers have lost the respect of the fishing community. 

In order for fisheries management to be effective, rules and regulations need to be clear, and enforcement needs to be consistent 

and fair. As the report notes, there needs to be a level of trust 

among fishery managers, law enforcement, and the regulated community—trust that the rules are being enforced fairly and evenly. 

The report argues that in at least one region the system has 

broken down. The IG’s report has made a few things clear, including the fact that fisheries rules and regulations are complicated. In 

addition, the report shows that there needs to be oversight at a 

higher level within NOAA, and the report clearly states that NOAA 

needs to listen to fishermen’s concern. 

Now speaking to my law enforcement folks back home, they point 

at when they review the report, that it makes little mention of the 

role that state law enforcement plays through Cooperative EnforceVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6602 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
4 

ment Agreements with NOAA. I am interested to know how enforcement by state agencies was taken into account by the IG who 

performed the investigation and prepared the findings. I would also 

like to hear the panelists’ recommendations for the future 

enforcement role of the states. 

I look forward to hearing the testimony today and hearing what 

NOAA will do to address the serious issues raised by this report. 

Thank you. 

Ms. BORDALLO. I thank the gentleman from Louisiana, Mr. 

Cassidy, for his opening remarks. Now I would like to recognize the 

first panel. It will be three of my colleagues. And right now Mr. 

Tierney, from the Sixth District of Massachusetts, is here with us. 

If you would begin, Mr. Tierney. 

STATEMENT OF HON. JOHN TIERNEY, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF MASSACHUSETTS 

Mr. TIERNEY. Thank you very much, Madame Chairwoman and 

Ranking Member Cassidy and the members of the Committee. I appreciate the opportunity to join you today, and I am very happy to 

join Walter Jones and Barney Frank, my colleagues, to talk about 

this important subject, important not just to those like the three 

of us who represent coastal areas, but to anybody who has an interest in areas where fishing takes place and the fishing industry in 

the neighboring communities, but also just the dietary factor of the 

importance that seafood plays in all of our healthy eating habits. 

We had a hearing yesterday, as you know, in our Subcommittee 

on Oversight up in Gloucester, Massachusetts, in my district. I 

want to thank Dr. Lubchenco for coming there. I know that it 

wasn’t her first choice of places to be yesterday, but I do know that 

she took the trouble to come early, three hours before the meeting 

took place, and had an opportunity to meet with some of our fishing people and folks in the community. I trust that she got a good 

earful of what troubles people there, as well as at the hearing 

where our second panel, in fact, were people from the fishing community as well. 

There is a serious problem. Mr. Zinser is to be congratulated for 

a good job on his Inspector General’s report. It is a good start. He 

has promised to look into some of the particular cases as we go forward because there are many, many individual instances where 

heavy-handed enforcement, arbitrary decisions, capricious fines, 

and an attitude by the Federal agents that is almost unbelievable 

when we as elected officials listen to the way that people are being 

treated. 

Part of that is contributed to by the fact that 98 percent of the 

offenses and things that are being enforced by the statute are civil 

in nature, yet 90 percent of the enforcement staff are criminal. Mr. 

Jones’ own background—he is in charge of the Office of Law Enforcement—is, of course, a criminal background. If you heard the 

instances of the fishing families talking about the way that they 

are approached, the derogatory language, the disdainful attitude 

toward them, the repetitive fines—in our area of the Northeast, 

$5.5 million in a five-year period. It is two and a half times greater 

than the next largest region of the six regions, and five times 

greater or more than the other four regions. 

5 

Clearly, something is wrong. The Inspector General points out 

very evenly, I think, that one problem is that there is really no centralization of this, no overriding policy or set of principles and 

standards by which fines are assessed. Consequently, it is almost 

left up to the individual agent to go out there and decide what is 

going to happen. The database isn’t working efficiently. People 

can’t look at past practices and past offenses and determine how 

that is going to play out on a penalty going forward. 

There also seems to be very little consideration for mitigating 

factors. We heard story after story of people having a minor discrepancy, a paper error, if you might, or having a piece of paper 

that has been properly documented but not with them at the moment, but at their home; data that they relied on from NOAA to 

establish their compliance, and NOAA not able to give them that 

information, but then when they act in what they thought was reliance on proper verbal information from NOAA, only to find out 

that the information turned out to be inaccurate, and they were penalized. 

These are not small penalties. These are penalties enough to 

cripple somebody and drive them out of business. And if I think 

there is one overriding point, it is that this particular law, the 

Magnuson-Stevens Act, is not about pitting conservationists 

against the fishing industry and fishing families. They are not mutually exclusive. Fishermen are obviously conservationists by their 

own right. As my colleague Barney Frank says very eloquently, no 

fisherman in a fishing family for generations wants to be the last 

member of that family to collect fish. They want it to continue on 

from family to family, and you can see that from listening to what 

goes on in these regions. 

There has been a history in the Office of Law Enforcement and 

in the assessment of fines as well of a lack of mission, as the Inspector General says, a lack of oversight, a need for NOAA to gain 

control over that process again. The wrenching personal stories just 

lay out how there has been arbitrary decisions made and how we 

need to get control of that situation again. Regulation is not something that the fishing community rejects. They expect regulation. 

They understand that it has a purpose. They want it to be fair. 

They want it to be clear. They want it to be transparent. They 

want it to be even-handed. That has not at all been the case. 

Given that all of this is laid out over a decade or more, most of 

which Mr. Jones has been the head of the Office of Law Enforcement, my question to him is why he didn’t just resign. And my 

question to Dr. Lubchenco, when she has had a chance to digest 

all of this and look at the Inspector General’s report—and then the 

particular cases that he is going to look into will be for her—don’t 

we need a rearrangement of that entire department, starting with 

Mr. Jones working on down? 

Mr. Cassidy, you raised the point of the state cooperation with 

agencies. That has not been the problem in our area. It has not 

been the state enforcement people that have been the problem. It 

has been the Federal enforcement people who come in and treat 

these fishermen like common criminals. They came in, in one instance, and raided a fishing auction without a warrant in the midVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
6 

dle of the night. If our police departments hadn’t been there to document it, I guess nobody would have been the wiser on that. 

But it has just been an abhorrent way of operating on this, and 

it has to come to an end. I am very pleased that you are taking 

an interest in this. I think together we can impress upon Dr. 

Lubchenco, who as you noted, Madame Chairwoman, is new. This 

is a wonderful opportunity for her to look at this with fresh eyes. 

It is good that she asked for an independent review by Mr. Zinser, 

and we are getting that. We hope to work with her as well on rectifying first the statute, which needs more flexibility. 

We definitely need to have it not be so rigid so that people can 

earn a living where the fish are there. It is not going to be enough 

to give our fishermen loans or to retrain them for another job when 

by NOAA’s own data, it shows millions and millions of dollars of 

fish out there and ready to be fished. We have to find a way for 

people to be able to go out and earn their living. That is what they 

want to do. 

So with your help on that, we look forward to moving in the right 

direction on this, and thank you again for your time and your attention on this issue. 

Ms. BORDALLO. I thank the gentleman from Massachusetts, Mr. 

Tierney. We are going to be awaiting the other two of our colleagues. But before that, I would like to ask the gentlemen standing in the back, you can take seats around the table here if you 

wish to. It may be a long hearing. 

So we would like to call on the second panel then. Thank you, 

Representative Tierney. I would now like to recognize our panel of 

witnesses, the second panel. Our witnesses include The Honorable 

Todd J. Zinser, the Inspector General, the U.S. Department of 

Commerce, and Dr. Jane Lubchenco, the Under Secretary for 

Oceans and Atmosphere and Administrator, National Oceanic and 

Atmospheric Administration. You can begin. 

I just want to remind you that we do have a timing system here 

of five minutes. The red light will go on. We would appreciate your 

cooperation with the time limits. Be assured, though, that your full 

written statement will be entered into the record. Mr. Zinser, you 

can begin your testimony. 

STATEMENT OF HON. TODD J. ZINSER, INSPECTOR GENERAL, 

U.S. DEPARTMENT OF COMMERCE 

Mr. ZINSER. Thank you, Chairwoman Bordallo, Congressman 

Cassidy, Congressman Young. We appreciate the invitation to testify on our most recent report concerning the fisheries enforcement 

programs and operations of NOAA. My testimony today will briefly 

summarize our report. 

We undertook our review at the request of Under Secretary 

Lubchenco. The Under Secretary’s request was in response to congressional inquiries asking for a review of the policies and practices 

of the Office for Law Enforcement within NOAA’s National Marine 

Fisheries Service and NOAA’s Office of General Counsel for Enforcement and Litigation. 

The Under Secretary could have chosen to undertake this review 

using an internal NOAA team, but instead she chose to ask for our 

independent review. It was my view then and it is still my view 

7 

that the Under Secretary wants to know what the problems are 

with her enforcement operations and wants to try to fix them. Our 

review included speaking with over 225 individuals in various 

parts of the country, including fishermen, boat captains, industry 

association representatives, conservation officials, fishery management council members, and current and former NOAA personnel. 

We reviewed enforcement records and examined NOAA’s management information systems. We reviewed Department of Justice policy and guidelines and analyzed comparable Federal regulatory enforcement agencies. 

Our report details our three principle findings. First, NOAA’s 

senior leadership and headquarters elements need to exercise substantially greater management and oversight of the agency’s regional enforcement operations to include setting enforcement priorities. Second, NOAA needs to strengthen policy guidance, procedures, and internal controls in its enforcement operations to address a common industry perception that its civil penalty assessment process is arbitrary and unfair. We found the process used for 

determining civil penalty assessments include significant discretion 

on the part of individual enforcement attorneys with minimal guidance on how to exercise that discretion. As such, we found it difficult to argue with the view that the process is arbitrary and in 

need of reform. 

Third, NOAA needs to reassess its enforcement workforce composition, which is presently 90 percent criminal investigators, to 

determine if this criminal enforcement oriented structure is the 

most effective for accomplishing its primarily regulatory mission. 

Based on NOAA’s own data for its enforcement results, over the 

last two and a half years, about 98 percent of their work was noncriminal. 

While we recognize NOAA’s need to maintain criminal investigative capacity, its caseload reflects that its current staffing is disproportionate to agency function and operational need, particularly 

compared with other agencies with similar mission profiles and enforcement responsibilities such as EPA and Interior’s Fish and 

Wildlife Service. Those agencies separate the regulatory and criminal enforcement functions with inspectors who handle regulatory 

enforcement and criminal investigators who handle criminal investigations. 

Our report presents specific recommendations for NOAA to 

strengthen its enforcement programs and operations. These include, one, NOAA’s leadership regularly addressing and providing 

input to enforcement priorities and strategies with regional management; two, instituting a robust ombudsman program specifically 

for fisheries enforcement issues to provide an effective interface 

with the commercial fishing industry; three, determining whether 

NOAA has an appropriate balance and alignment of uniformed enforcement officers and criminal investigators based on mission 

need; four, ensuring that there is an operating procedures manual 

for enforcement attorneys and that the operations manual for its 

special agents is current and provides sufficient policy guidance on 

its authorities and procedures for civil and criminal enforcement 

activities; five, ensuring follow-through on the process improvement 

initiatives outlined by the General Counsel for Enforcement and 

8 

1 National Oceanic and Atmospheric Administration: Review of NOAA Fisheries Enforcement 

Programs and Operations, Final Report No. OIG-19887, January 21, 2010. OIG reports are 

available at our Web site: www.oig.doc.gov. 

Litigation in December; six, instituting a mechanism for higher 

level review of civil penalty assessments; and seven, develop and 

implement integrated case management information systems for its 

enforcement mission. 

We note that the Under Secretary has directed a series of actions, some immediate and others in the near future, that are responsive to our findings and recommendations. We have asked for 

a specific response for our recommendations and will assess 

NOAA’s progress by reviewing and reporting on the status of these 

and other agency actions. 

That concludes my summary, Madame Chairwoman. I would be 

happy to answer any questions you or other Members may have. 

[The prepared statement of Mr. Zinser follows:] 

Statement of The Honorable Todd J. Zinser, Inspector General, 

U.S. Department of Commerce 

Chairwoman Bordallo, Ranking Member Brown, and Members of the Subcommittee: 

We appreciate the invitation to be here today to discuss our recent report on the 

fisheries enforcement programs and operations of the National Oceanic and Atmospheric Administration (NOAA). 1 My testimony today will briefly summarize our report, and we request that our entire report be made part of the record. 

We undertook our review at the request of Dr. Jane Lubchenco, the Under Secretary of Commerce for Oceans and Atmosphere, who also serves as the Administrator of NOAA. She had been contacted by the Massachusetts congressional delegation and state elected officials, as well as by both U.S. Senators and multiple Representatives from North Carolina, recounting complaints of excessive penalties and 

retaliatory actions by NOAA fisheries enforcement officials. Our review, then, evaluated the policies and practices of the Office for Law Enforcement (OLE) within 

NOAA’s National Marine Fisheries Service (NMFS) and NOAA’s Office of General 

Counsel for Enforcement and Litigation (GCEL). 

We examined their overall conduct of enforcement actions; how they prioritize actions and set penalty assessments; and their use of resources, including funds obtained through imposed penalties. 

We faced two conditions that limited our ability to fully meet our objectives. First, 

inadequate management information systems were a significant detriment. For instance, while NOAA’s data shows regional disparity in aggregate civil penalty assessments, fostering a perception that such assessments in the Northeast have been 

arbitrary, NOAA’s lack of effective case management systems and useful data made 

more in-depth analysis impossible. As we further explain below, if NOAA is to succeed in bringing a greater level of management attention to its enforcement programs, it will need substantially improved data systems. 

Second, we were constrained in our ability to meet our objective to examine the 

use and management of what NOAA calls the asset forfeiture fund. We found that 

despite a balance of $8.4 million as of December 31, 2009, OLE officials were not 

aware of the fund’s having ever been audited, and internal controls over the fund 

had not been tested. As a result, we have commissioned a forensic review of the 

fund as a follow-up action, and that review is underway. 

Our review included speaking with over 225 individuals in various parts of the 

country, including the Northeast—fishermen, boat captains, industry association 

representatives, conservation officials, Fishery Management Council members, and 

current and former NOAA personnel. We also established a dedicated e-mail address for interested parties to use to provide potentially relevant information. Further, we reviewed numerous OLE and GCEL enforcement records and related documents, and examined OLE’s and GCEL’s case management information systems. Finally, we reviewed Department of Justice policy and guidelines regarding enforcement techniques, and analyzed comparable federal regulatory enforcement agencies, 

including the Environmental Protection Agency (EPA) and the Department of the 

Interior’s Fish and Wildlife Service. 

9 

SUMMARY OF RESULTS 

Our report details our three principal findings: 

1. NOAA senior leadership and headquarters elements need to exercise substantially greater management and oversight of the agency’s regional enforcement 

operations, to include setting enforcement priorities based on integration and 

coordination with headquarters fisheries management and science center elements; implementing effective management information systems; and utilizing 

data to inform its management decisions and enforcement activities. 

2. NOAA needs to strengthen policy guidance, procedures, and internal controls 

in its enforcement operations to address a common industry perception that its 

civil penalty assessment process is arbitrary and unfair. 

3. NOAA needs to reassess its OLE workforce composition (presently 90 percent 

criminal investigators), to determine if this criminal enforcement-oriented 

structure is the most effective for accomplishing its primarily regulatory mission. 

An important backdrop framing the issues we examined and the results we further discuss below, is recognizing that regulation of the fishing industry is highly 

complex and dynamic—presenting NOAA with a particularly difficult mission. This 

backdrop underscores a continual need for NOAA to understand industry perspectives and changing conditions within its fisheries and the industry; establish and 

follow enforcement priorities that are well-grounded and involve integration with 

the agency’s science elements; ensure well-managed programs and operations carried out by a workforce structured solely according to operational needs; and maintain effective communication with the industry. Essential to NOAA’s overall program effectiveness is ample involvement and oversight by NOAA leadership, to include ensuring that there are adequate checks and balances for enforcement operations. 

Our report presents specific recommendations for NOAA to strengthen its enforcement programs and operations, in the interest of promoting greater transparency, 

consistency, and oversight. These include: 

• NOAA leadership’s regularly addressing and providing input to enforcement priorities and strategies with regional management, to include integration and coordination with headquarters fisheries management and science center elements. 

• Instituting a robust ombudsman program to provide an effective interface with 

the commercial fishing industry. 

• Determining whether NOAA should continue to approach enforcement from a 

criminal-investigative standpoint, and determining whether the agency has an 

appropriate balance and alignment of uniformed enforcement officers and criminal investigators, based on mission need. 

• Ensuring that GCEL implements and follows an operating procedures manual 

that includes processes, methods, and justification for determining civil penalty 

assessments and fine settlement amounts; and that OLE’s enforcement operations manual is current and provides sufficient policy guidance on its authorities and procedures for civil and criminal enforcement activities. 

• Ensuring follow-through on GCEL process improvement initiatives outlined in 

its memorandum of December 1, 2009. 

• Instituting a mechanism for higher-level review of civil penalty assessment determinations by GCEL attorneys in advance (e.g., by a panel established within 

NOAA headquarters). 

• Ensuring that GCEL and OLE develop, implement, and effectively utilize reliable, integrated case management information systems. 

We note that the Under Secretary has directed a series of actions, some immediate and others in the near future, that are responsive to our findings and recommendations. We have asked for a specific response to our recommendations and 

will assess NOAA’s progress by reviewing and reporting on the status of these and 

other agency actions. 

FINDINGS 

NOAA is entrusted with broad statutory enforcement powers to promote compliance and deter violations within the commercial fishing industry. This calls for the 

highest degree of oversight by NOAA leadership to ensure fairness and consistency 

in enforcement activities and sanctions, promote program integrity and accountability, and avoid even the appearance of abuse of authority. The agency’s enforcement operations have not garnered a great deal of attention from senior management within the large, science-based organization. Yet these offices have great potential to affect the fishing industry, the livelihood of individual fishermen, and the 

10 

public’s confidence in NOAA and the Department of Commerce. Our three primary 

findings are as follows: 

1. NOAA senior leadership and headquarters elements need to exercise 

substantially greater management and oversight of the agency’s 

regional enforcement operations. 

Given the complexities of NOAA’s mission and organization, the industry, and the 

current enforcement climate, its establishment of enforcement priorities is essential. 

This should involve integration and coordination with its headquarters fisheries 

management and science center elements, including the Assistant Administrator for 

NMFS, to whom OLE reports. Such linkage, with corresponding use of both science 

and enforcement-related data, would better enable NOAA to establish priorities and 

target its enforcement operations to those areas warranting such focused attention. 

We concluded that a lack of management attention, direction, and oversight led 

to regional enforcement elements operating autonomously. As shown in the table 

below, this contributed to aggregate fine assessments in the Northeast Region that 

are inconsistent with those in the other regions. Moreover, the substantial difference 

between initially assessed and settled fines in the Northeast fosters the appearance 

that fine assessments in that region are arbitrary. 

The table shows that the Northeast Region’s initial fine assessments totaled nearly $5.5 million—an amount two-and-a-half times greater than the second highest region, and about five times or more greater than the other regions. Of further significance, the data show the Northeast as the region with the greatest percentage reduction from assessed to settled fine amounts (approximately $5.5 million assessed 

to approximately $1.6 million settled—a nearly 70-percent reduction). 

GCEL’s explanation for this inconsistency is that initial assessment amounts involve complex factors, which are considered on a case-by-case basis, using NOAA’s 

Civil Administrative Penalty Schedule and accompanying internal guidelines. However, no formal process exists for sufficiently documenting decisions regarding fine 

assessments and settlement amounts, making GCEL’s explanations for regional differences unauditable and thus unverifiable. Further, information contained in the 

table required substantial data manipulation, time, and effort for OLE to produce. 

NOAA also collects funds from asset forfeitures (e.g., fish seizures); such information 

is not included in the table. Inclusion of those figures would require a similarly 

labor-intensive manual effort. 

We also found that NOAA leadership has had minimal involvement in setting enforcement priorities, linking enforcement to its fishery management goals, or evaluating enforcement program effectiveness. Similarly, regionally-established enforcement priorities, even if documented, have not typically been disseminated to headquarters. 

2. NOAA needs to strengthen policy guidance, procedures, and internal 

controls in its enforcement operations to address a common industry 


55220.001.eps
11 

2These efforts are detailed in a December 1, 2009, memorandum from the Assistant General 

Counsel for GCEL to NOAA’s Deputy General Counsel. 3The Act is codified, as amended, at 16 U.S.C. § 1801 et seq. For more information on the 

Act, see our January 21, 2010, report. 4See 16 U.S.C. § 1859. 

perception that its civil penalty assessment process is arbitrary and 

unfair. 

GCEL’s process for determining civil penalty assessments includes significant discretion on the part of individual enforcement attorneys, with minimal guidance on 

how to exercise that discretion. As such, it is difficult to argue with the view that 

the process is arbitrary and in need of reform. One reform that NOAA should consider is instituting a process that includes higher-level review of civil penalty assessment determinations by GCEL attorneys in advance. NOAA should also revise 

applicable procedural regulations and penalty schedules in order to provide greater 

consistency and clarity, and reduce confusion among affected industry parties. 

Additionally, NOAA’s data for fines are inherently unreliable because of weaknesses in GCEL’s and OLE’s current case management information systems—in 

particular, data that are missing, entered into the systems inconsistently, or vague. 

For example, based on our comparison of ‘‘closed’’ case data between OLE and 

GCEL data systems, out of 2,726 unique case numbers in OLE’s system, only about 

5 percent match GCEL’s system for cases closed from July 2007 through June 2009. 

To its credit, in response to the results of our review, GCEL has recently initiated 

several steps to promote transparency, help ensure fairness, and open lines of communication with the fishing industry. They include initiatives to (1) revise procedural regulations and penalty schedules; (2) develop an internal operating procedures manual; and (3) implement a new case-tracking database, linking to OLE’s 

case management system. 2

3. NOAA must reassess its OLE workforce composition, which is now 90 

percent criminal investigators, to determine if such an emphasis on 

criminal enforcement is the most effective for accomplishing a primarily regulatory mission. 

Based on OLE’s own data, its caseload from January 1, 2007 through June 30, 

2009, was about 98 percent noncriminal. Ten years ago, NOAA increased its already 

predominantly criminal investigator workforce (then 75 percent) to today’s 90 percent. There are indications in the record that this workforce composition was driven 

by considerations of the better pay and benefits that apply to federal criminal investigators, rather than by strict mission requirements. 

OLE’s fundamental mission is to assist in the protection of fisheries by enforcing 

resource protection and fisheries management laws. OLE caseload data for 

January 1, 2007 through June 30, 2009, illustrate that its mission has principally 

involved enforcement of the Magnuson-Stevens Fishery Conservation and Management Act 3 (65 percent of cases). The criminal provisions of the Act are narrowlyfocused and nearly all are misdemeanors. Yet because the office is staffed largely 

with criminal investigators, OLE’s orientation is to conduct criminal investigations. 

This despite the fact that the only felony provisions involve the use of a dangerous 

weapon during the commission of an act prohibited by Magnuson-Stevens and the 

assault of observers and officers authorized to enforce the Act. 4 According to OLE, 

violations of the Act typically do not result in criminal charges; most violations 

(such as exceeding catch limits) result in administrative penalties alone. 

While we recognize OLE’s need to maintain a criminal investigative capacity, its 

caseload reflects that its current staffing is disproportionate to agency function and 

operational need, particularly compared with other agencies with similar mission 

profiles and enforcement responsibilities. For instance, agencies such as EPA and 

Interior’s Fish and Wildlife Service separate their regulatory and criminal enforcement functions, with inspectors who handle regulatory enforcement and criminal investigators who handle criminal investigations. 

NOAA ACTIONS IN RESPONSE TO OIG FINDINGS AND 

RECOMMENDATIONS 

In a memorandum dated February 3, 2010, Under Secretary Lubchenco announced a two-pronged approach to addressing our findings and implementing our 

recommendations. This approach, which the Under Secretary characterized as initial steps, entails a series of immediate actions and other actions to be completed 

by March 21, 2010, summarized as follows: 

A. Immediate actions: 

1. Subject to compliance with applicable labor relations requirements, 

NOAA General Counsel shall immediately institute higher level reviews 

12 

5 16 U.S.C. § 1861(e)(1)(C). 

of proposed charging decisions, including proposed penalties and permit 

sanctions, and proposed settlements to ensure consistency and predictability. 

2. An immediate freeze on the hiring of criminal investigators until NMFS 

completes an internal work force analysis to address the appropriate mix 

of enforcement personnel and it is approved by the Under Secretary. 

3. An immediate shift in oversight of the NMFS Civil Monetary Penalties 

Fund (also known as the Asset Forfeiture Fund) from NMFS to NOAA’s 

Comptroller. 

4. NMFS, in consultation with NOAA’s Office of Communications, will direct resources to improve communications on enforcement issues, particularly in the Northeast. 

5. NOAA’s General Counsel, NMFS, and NOAA’s Director of External Affairs will develop specific objectives and detailed plans for a summit on 

law enforcement practices to be held no later than June 30, 2010. 

B. Actions to be completed by March 21, 2010: 

1. NMFS’ Office of Law Enforcement and NOAA’S General Counsel, in cooperation with NOAA’s Chief Information Officer, will develop a strategy 

and schedule to improve management information systems, including 

recommendations on actions to take advantage of the internet to increase transparency. 

2. The Assistant Administrator for Fisheries, with input from NOAA’s leadership, will develop a plan and schedule to implement standardized procedures for setting enforcement priorities. 

3. NOAA’s General Counsel for Enforcement and Litigation will develop a 

plan and schedule to strengthen its operating procedures, prosecution of 

charged cases, and settlement actions. 

4. The Assistant Administrator for Fisheries, in collaboration with the 

NOAA Communications Office and General Counsel for Enforcement and 

Litigation, will develop an outreach strategy to improve engagement 

with the local fisheries community and the public. 

5. The Assistant Administrator for Fisheries, in consultation with the Director of the Workforce Management Office, will formulate a plan to review the NMFS Office of Law Enforcement’s staffing and procedures. 

This plan will explicitly address both civil and criminal requirements, 

with specific focus on ensuring that criminal procedures are not applied 

to civil offenses. Development of the plan should include appropriate 

independent review. 

OFFICE OF INSPECTOR GENERAL FOLLOW-UP 

We have identified three areas for additional review stemming from our results: 

1. NOAA’s Retention of Civil Penalties and its Asset Forfeiture Fund. Fishermen and other industry sources expressed concern to us that NOAA’s 

fines are excessive, constituting a form of bounty, because the agency is 

able to retain the proceeds from its enforcement cases. This is not an uncommon charge against law enforcement agencies granted authority to 

seize assets. The most effective way to counter such charges is for the 

agency to demonstrate in a transparent way how the proceeds of its enforcement actions are used. NOAA has the statutory authority to retain 

proceeds from the civil penalties it imposes and collects, and pursuant 

to asset forfeitures (such as the sale of seized fish, vessels, etc.) for Magnuson-Stevens Act violations to pay for expenses directly related to investigations and civil or criminal enforcement proceedings. 5

We determined that NOAA has an asset forfeiture fund comprising such 

proceeds, the balance of which the agency reported as $8.4 million as of 

December 31, 2009. However, the account under which these proceeds 

are maintained has weak internal controls, and we could not readily determine how NOAA has utilized these funds. This is because while the 

fund’s balance is included in the Department’s overall financial statements, internal controls over the fund are not tested as part of the Department’s annual financial statement audit, due to the relatively small 

size of the fund; neither are they tested as part of the annual Department-wide financial audit. As mentioned, we are commissioning a forensic review of the fund, and will issue our findings upon its completion. 

13 

2. NOAA’s Progress in Addressing OIG’s Results. We will review and report 

on NOAA’s progress in carrying out its actions in response to our findings and recommendations. Our follow-up efforts will include reviewing 

the above-referenced actions announced by the Under Secretary, GCEL’s 

initiatives, and any additional measures NOAA takes to implement our 

recommendations. 

3. Individual Complaints. In order to carry out this review in a timely 

manner, it was necessary to closely define our scope and focus on the 

management of the programs and operations related to fisheries enforcement. At the same time, expectations rose that we would investigate individual cases, brought to our attention or reported in the media, in 

which fishermen believe they were treated unfairly or were subject to 

overzealous enforcement. We could not accomplish both at the same 

time. Therefore, our initial focus was on the management issues we 

identified. 

We received specific complaints from dozens of fishermen during our review, including alleged abuses of authority by NOAA enforcement personnel, disparate treatment, and excessive fines. We are in the process 

of examining these complaints and corresponding enforcement case files 

to determine whether any additional action is necessary or recommended, either by our office or NOAA. Based on our review to date, 

allegations of abusive treatment are not widespread; however, I feel that 

it is important that we do all we can to get to the bottom of these concerns and the facts surrounding these cases. 

Mr. Chairman, this concludes my prepared statement. I would be pleased to respond to any questions that you or other Members of the Subcommittee may have. 

Response to questions submitted for the record by Todd J. Zinser, 

Inspector General, U.S. Department of Commerce 

Questions from Chairwoman Madeleine Z. Bordallo (D-GU) 

1. What are the regional impacts from the lack of oversight by NOAA’s 

senior leadership and headquarters? 

As cited in our report, the impact from lack of oversight by NOAA leadership over 

regional enforcement elements was most apparent in the Northeast Region because 

of a specific set of conditions and circumstances (economic, cultural, science) in that 

region. However, the systemic leadership issues highlighted in the report have the 

potential to spread to other regions as conditions in those regions change. The impact from lack of oversight will vary from region to region based upon a number 

of factors including the science, priorities, and enforcement management strategies 

that are unique to each regional office. 

The science includes data and information from Sustainable Fisheries, Habitat 

and Protected Resources which in turn can impact the priorities and initiatives of 

each region depending upon seasonal issues, the status and health of stocks, economic impact(s), input and recommendations from the FMCs and any other necessary or immediate responses based upon current conditions and circumstances. 

Fisheries enforcement management officials then consider these factors and, together with their leadership, develop and implement strategies, initiatives, and 

operational procedures and guidance for each region and nationwide. 

2. What kinds of expenditures were made using NOAA’s Asset Forfeiture 

Fund? 

Our Forensic Review of the Asset Forfeiture Fund by KPMG is ongoing and we 

should be able to report out fully on the findings of that review in the near future. 

At this time we are aware of some general categories of expenditures made by 

NOAA using the Asset Forfeiture Fund. Those categories include operating expenses 

for the Office of General Counsel for Litigation and Enforcement, contracts to support enforcement databases, travel for agents and attorneys, and equipment purchases for OLE such as boats and cars. 

3. What parts of the recommendation ‘‘to strengthen the role of the law 

enforcement committees and advisory panels’’ from the OIG March 2003 

report were not implemented? 

OIG recommended in 2003 that NOAA strengthen the role of the Fishery Management Councils’ (FMC) law enforcement committees and advisory panels. At that 

time, NMFS developed and began to implement guidance to more clearly define the 

role of these bodies. In several of the regions, these groups began to meet regularly 

14 

and gave more focus to enforcement issues, but these efforts were not sustained. 

OIG has not performed a formal review of the status of law enforcement committees, but through other NMFS work we have learned that in some regions the entities morphed into Law Enforcement/Vessel Monitoring System/Safety committees 

and panels. In others, the groups currently meet less regularly. Also, while OLE 

representatives do attend the FMC meetings and provide an enforcement report, in 

general, OLE’s involvement on the committees still needs strengthening. 

4. What additional steps does NOAA need to take to make its case management system effective? 

OLE and GCEL both need to continue upgrading their systems. They need to ensure that these systems are effectively and efficiently linked to the other to help ensure timely and accurate case updates and information sharing between OLE and 

GCEL. In fact, along these lines it might be beneficial for NOAA to explore a single 

system solution. 

Additionally, management needs to take an active role in utilization and design 

of the system reporting functions to help ensure the information entered can be organized and reported in a useable and informative manner. Appropriate data fields 

need to be incorporated into both systems that will allow for tracking and reporting 

of items such as permits, permit violations, seizures, and repeat offenders, which 

the system currently does not capture. 

NOAA should also ensure that management uses the information to assist with 

decision-making and oversight. Finally, NOAA must establish procedures and training programs for using the system to ensure case information is updated in a consistent, timely, and accurate manner. 

5. What have you learned so far in follow-up investigations on the 

individual cases of heavy-handed enforcement on fishermen? 

Our investigation regarding these matters is ongoing. Therefore, we are unable 

to report any findings. 

Questions from Republican Members 

1. This report primarily focused on the Northeast region although you did 

hear from fishermen in other regions. Do you plan to do any further 

investigations into other regions? 

We believe the results of our review and the recommendations made in our report 

address the problems we identified within NOAA enforcement nationwide. As such, 

we do not plan further investigations in other regions. 

2. Are most of the problems of transparency and seemingly arbitrary fines 

you found within the NOAA law enforcement offices systemic or are they 

primarily regional in nature? 

We believe most of the problems identified concerning a lack of transparency and 

appearance of arbitrary fines and penalties within NOAA’s civil assessment process 

are systemic. NOAA’s General Counsel for Enforcement Litigation lacks an internal 

operations manual. As a result, GCEL’s proposed fines are determined by NOAA’s 

Civil Administrative Penalty Schedule (which ranges from a written warning to 

$120,000 penalty for single offences) and accompanying informal guidelines. Penalty 

assessments are left solely to individual regional enforcement attorneys, who have 

broad discretion. Based on the available data concerning initial penalty assessments, we found that even though the assessments fell within the penalty schedule, 

the initial assessments by GCEL attorneys in the Northeast were higher relative 

to other regions. 

3. The Alaska region suffered from a similar problem with the Coast Guard 

fisheries enforcement years ago, especially when personnel were transferred from areas where drug interdiction was the primary responsibility. Regional Fishery Training Centers were created and fishermen 

became active participants in the training for Coast Guard personnel 

sent to Alaska. This created a much better relationship between the regulated community and law enforcement. Would some type of cooperative 

training center be beneficial to NOAA law enforcement personnel? 

Should we require that all NOAA law enforcement personnel go through 

the Coast Guard training? 

Yes, we do believe that some type of cooperative arrangement for training and/ 

or educational purposes would be beneficial to both NOAA law enforcement and the 

fishing industry and that it would have a positive impact on relationships between 

the two entities. 

15 

OLE considers the Coast Guard a strong partner in enforcing marine resource 

laws and performing fishery management ashore. While cooperative training among 

federal law enforcement personnel with complementary missions is often beneficial, 

we are not specifically familiar with the Coast Guard’s cooperative training center 

and cannot opine as to whether all NOAA law enforcement personnel should be required to go through Coast Guard training. 

4. Do you believe the items suggested by NOAA will be sufficient to meet 

your concerns and the recommendations you made in the report? 

NOAA’s proposed action items appear to meet the intent of our recommendations 

and we believe they are sufficient to meet our concerns. However, follow-through on 

those proposed actions is key and my office is committed to tracking and ensuring 

proper follow-through. 

5. Congressman Jones notes that the number of law enforcement personnel 

has risen while the number of fishermen and the level of quotas have 

declined. Did the IG look at whether the staffing levels of the NOAA law 

enforcement program were appropriate to their mission? Did the IG look 

at whether staffing levels in the Northeast region were appropriate to 

the mission? Did the IG examine the role of state law enforcement 

through Joint Enforcement Agreements and how those agreements 

might affect staffing needs for NOAA law enforcement activities? 

While we did not assess whether OLE’s staffing levels were appropriate, we did 

find that its current staffing ‘‘make-up’’ is disproportionate to agency function and 

operational need, particularly compared with other agencies with similar mission 

profiles and enforcement responsibilities. As of August 31, 2009, OLE’s enforcement 

staff consisted of 149 criminal investigators and 15 uniformed enforcement officers— 

12 of whom are located in Alaska, with none located in the entire Northeast region. 

According to OLE data for the past three years (2007-2009), approximately 98 percent of its enforcement caseload has been regulatory—with only about 2 percent 

criminal cases. As a result, we recommended that NOAA determine whether the 

agency has an appropriate balance and alignment of uniformed enforcement officers 

and criminal investigators, based on mission need. 

We did not examine how coastal state marine enforcement agencies through joint 

enforcement agreements (JEAs) might affect staffing needs for NOAA law enforcement activities. In 2008, we assessed NOAA’s efforts to target living marine resource violations through the JEA program. OLE relies on the U.S. Coast Guard 

and coastal state marine enforcement agencies for help enforcing federal fisheries 

regulations within the 200 miles of U.S. coastline known as the U.S. Exclusive Economic Zone. At that time, we found the JEA program was hampered by administrative and operational deficiencies that prevent NOAA from maximizing the benefits 

of these partnerships. We determined that (1) JEA activities needed to be more 

closely monitored from headquarters and at the divisional level to verify state reported JEA data, (2) the use of summary settlements was limited (only 3 of the 27 

JEA partners had this authority) and loosely managed, and (3) GCEL lacked written policies and procedures for making and managing delegations of summary settlement authority. 

6. Most of your concerns seem to be in enforcement actions against the 

commercial fishing sector. Have you received similar complaints or did 

you see similar concerns in enforcement activities of the recreational or 

charter fishing sectors? 

Most of the complaints related to enforcement that we received were from the 

commercial fishing sector. We received some enforcement-related complaints from 

the recreational and charter fishing sectors but very few. We heard—both in the 

course of this review and in previous work—many complaints about NOAA’s overlyconfusing and complicated fisheries management regime and its ever-changing, burdensome regulations from the commercial, recreational, and charter fishing sectors. 

7. Congress required NOAA Science and Statistical Committees (SSC) to 

meet concurrent with regional fishery management council meetings so 

that fishermen could participate. I understand that in at least one region, this is still not being done. In addition, I understand that one particular SSC still refuses to hear testimony from any scientist who has 

ever accepted money from the fishing industry yet has a full-time employee of an environmental group on the SSC. Is the lack of integration 

of the fishing industry into the science aspects of the fishery management process something Congress should ask the IG to also look into? 

16 

The quality of the fishing industry’s integration into the science aspects of 

NOAA’s fishery management process is an important issue. In February 2009, the 

IG sent a memorandum to NOAA after an OIG review of industry allegations regarding NMFS’ Northeast Fisheries Science Center. This review focused on northeast groundfish (multispecies) issues and was initiated at the request of Senators 

Snowe, Collins, Kennedy and Kerry. We recommended that NMFS should enhance 

the participation of the northeast groundfish industry in the fisheries management 

process by (1) incorporating data from scientifically rigorous groundfish industrybased surveys (as it already does with industry-based surveys in the sea scallop and 

monkfish industries); (2) doing more targeted cooperative research with the groundfish industry; (3) improving communication and education efforts with the groundfish industry, including making the Science Center website more user-friendly and 

easier to navigate; and (4) highlighting creative efforts of groundfish industry members working towards sustainable, profitable local fisheries. NOAA has not yet provided the OIG with information that demonstrates that it is working to implement 

this recommendation. 

8. You note that the law enforcement data management systems at NOAA 

were inadequate. Would it surprise you to know that the NOAA General 

Counsel did not even have a system for tracking lawsuits against their 

own agency until this Committee asked them to do so? 

We are not surprised, given the data system inadequacies we identified, that such 

issues exist. 

Ms. BORDALLO. I thank you, Mr. Zinser, for your testimony, and 

for your ongoing efforts in this issue. Dr. Lubchenco, you can now 

begin. 

STATEMENT OF DR. JANE LUBCHENCO, UNDER SECRETARY 

OF OCEANS AND ATMOSPHERE AND ADMINISTRATOR, 

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 

U.S. DEPARTMENT OF COMMERCE 

Dr. LUBCHENCO. Thank you, Chairwoman Bordallo, Ranking 

Member Cassidy, members of the Committee. I greatly appreciate 

the opportunity to testify before you today on the Inspector General’s report. 

Congress has acknowledged the value of our marine and coastal 

environment through several laws, including the Magnuson-Stevens Fishery Conservation and Management Act. Under this law, 

NOAA has regulatory obligations to ensure the sustainability of 

marine resources and their habitat. NOAA, fishermen, and the 

public share a common goal of preserving and protecting the marine environment and our fisheries for the long-term health of both 

our fishery resources and fishing-dependent communities. 

Proper regulation and enforcement are vital to this effort, and to 

the economic vitality of our coastal communities. For all of this to 

work, however, commercial and recreational fishermen must know 

the rules, and believe that if they follow the rules, others will too. 

But these rules must be consistently and fairly enforced. NOAA is 

committed to improving its enforcement program to assure that it 

is both effective and fair. A lot of hardworking investigators, 

agents, and lawyers work every day to protect our nation’s ocean 

and fishery resources. But there must be a level playing field, and 

fishermen have to have confidence in the system. 

As Congressman Tierney mentioned, I spent a few hours yesterday morning meeting with fishermen in Gloucester. Doing so is 

part of my commitment to have an open, productive dialogue with 

fishermen, to understand their perspectives and hear their ideas 

17 

about solutions, and to work with them as partners. In fact, I met 

with fishermen on my first full day on the job last March, almost 

a year ago, and I heard among other things their frustration with 

NOAA’s law enforcement. 

A couple of months later, I heard concerns from Members of Congress about NOAA’s enforcement program. In response, I requested 

the Department of Commerce Inspector General conduct a review 

of these programs. I requested this review because I believe in the 

importance of NOAA’s law enforcement efforts and felt it was time 

to take a fresh look at how well NOAA’s enforcement efforts are 

supporting our mission to rebuild fisheries and the associated economic opportunities within our coastal and fishing communities. 

The IG report released on January 21 identifies a number of very 

serious issues with NOAA’s enforcement program, and it recommends several steps we should take to address the deficiencies. 

I take this report very seriously, and I am committed to responding 

in a comprehensive, thoughtful, and timely manner. 

In response to the IG report, I have instructed the new NOAA 

General Counsel, Lois Schiffer, and the new National Marine Fisheries Service Assistant Administrator, Eric Schwaab, to address the 

IG’s recommendations and continue to work to improve our outreach and engagement with the fishing community at large. 

While we develop a comprehensive plan to address the report 

recommendations in the allotted 60-day time frame, we have already taken a number of actions in response to the IG report. My 

written testimony is more thorough, but let me briefly outline some 

of the changes that have already taken place, and then talk about 

some of the longer-term actions we are planning. 

First, I have instituted a freeze on the hiring of criminal investigators until an internal workforce analysis is done to address the 

appropriate mix of criminal investigators and regulatory inspectors 

in the enforcement office. This action will better position the agency to address the report’s observations that the Office of Law Enforcement may not have the appropriate balance in its workforce. 

Second, I have shifted oversight of the asset forfeiture fund from 

NOAA’s National Marine Fisheries Service to NOAA’s Comptroller. 

This intermediate step will begin to address the IG’s criticism that 

internal controls over this fund are lacking. We are actively working with the IG to conduct a forensic audit on this fund and will 

further review this issue once we have the results from that audit. 

Third, I have asked the General Counsel, and she has committed, 

to institute higher level reviews for penalties, permit sanctions, 

and settlements to ensure consistency and predictability. This addresses the report’s observation that NOAA lacks formal procedures for sufficiently documenting penalty decisions, resulting in 

the appearance of arbitrary decisionmaking. 

Other actions I would like to highlight fall into the category of 

improved communication and enhanced oversight, which are major 

themes of the IG report. We are planning a number of actions to 

improve communication and increase transparency with the regulated community. A top-level management team is developing detailed plans for a summit on law enforcement practices to be held 

no later than June 30 of this year. The summit will help us formulate long-range policies for properly and fairly executing the agenVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
18 

cy’s enforcement action and develop forward-thinking approaches to 

enforcement actions, including approaches to address the regulated 

community’s concern of complex, conflicting, and excessive administrative burdens. 

We are also well on our way to implementing much needed improvements to our management information systems. This is intended to address the current system inefficiencies and data integrity issues. The improvements will enable NOAA to more effectively use information to guide its decisionmaking and increase 

transparency in our enforcement actions. 

The IG’s report identified a lack of oversight in several aspects 

of our enforcement programs. To address this, we are working on 

several initiatives, including developing standardized procedures 

for setting enforcement priorities. This will ensure some nationwide 

consistency while still addressing the regional needs. We are also 

strengthening the operating procedures for our enforcement activities. This is intended to promote greater transparency and prosecution and settlement actions. 

So these steps are intended to begin to respond to the issues 

identified by the IG. NOAA will build upon these steps to respond 

to all of the IG’s recommendations and to improve our enforcement 

program. Our marine and coastal resources are of immense value 

to the nation. Effective, fair, and transparent enforcement is critical to ensuring the long-term sustainability of these resources. I 

echo the urgency for change and commit to serious, measurable reforms to address the IG’s recommendations and enhance our work 

with the fishing community. Thank you. 

[The prepared statement of Dr. Lubchenco follows:] 

Statement of Dr. Jane Lubchenco, Under Secretary of Commerce for 

Oceans and Atmosphere, National Oceanic and Atmospheric Administration, U.S. Department of Commerce 

My name is Dr. Jane Lubchenco and I am the Under Secretary of Commerce for 

Oceans and Atmosphere and the Administrator of the National Oceanic and Atmospheric Administration (NOAA). Thank you for the opportunity to testify before you 

today on the recent Inspector General report ‘‘Review of NOAA Fisheries Enforcement Programs and Operations, Final Report No. OIG 19887’’. 

BACKGROUND NOAA LAW ENFORCEMENT 

NOAA has an important obligation to protect marine and coastal resources under 

a number of statutes. NOAA and fishermen share a common goal, captured in law, 

to maximize the benefits to the nation derived from our fish stocks. Proper regulation and enforcement are vital to this effort that also provides stability to coastal 

economies and to the marine environment on which so much depends. Commercial 

and recreational fishermen must believe that if they follow the rules, others will too. 

To be effective, the rules must be consistently—and fairly—enforced. 

Congress has acknowledged the value of our marine and coastal environment 

through several statutes including the Magnuson-Stevens Fishery Conservation and 

Management Act, Endangered Species Act (ESA), Marine Mammal Protection Act, 

National Marine Sanctuary Act, and others. Under these statutes, NOAA has regulatory obligations to ensure the sustainability of marine resources and their habitat. 

A critical component of any regulatory system is enforcement. 

NOAA, fishermen, and the public share a common goal of preserving and protecting the marine environment and our fisheries for the long-term health of both 

our fishery resources and fishing-dependent communities. NOAA’s trust resources 

are a public resource that should be protected through proper regulation and enforcement for the benefit of Americans, coastal economies and the ocean environment. These responsibilities range from enforcing our fisheries and national marine 

sanctuaries regulations to addressing violations of the ESA and other statutes. Enforcement actions, including investigations and patrols, use of technology such as 

19 

vessel monitoring systems (VMS), and partnerships with other federal agencies and 

states, are needed to ensure effective management and deter cheating. 

The NOAA Fisheries Service Office of Law Enforcement has 164 agents for its 

broad and complex mission. NOAA agents enforce numerous regulations, as well as 

over 35 different statutes, to assure the conservation and protection of marine resources. To ensure compliance with these laws and regulations, NOAA has employed 

a ‘‘four pillared approach.’’ These four pillars include: 

1) Traditional law enforcement methods involving investigations and patrols; 

2) Reliance upon key partnerships, particularly our coastal state and territory 

conservation enforcement agencies, the United States Coast Guard, and other 

local and internationally based enforcement organizations; 

3) Advanced technologies, such as the satellite-based VMS program; and 

4) Outreach and education to promote voluntary compliance. 

The United States Coast Guard is responsible for the at-sea boarding and inspection of fishing vessels and fisheries enforcement as a primary component of their 

mission. The Coast Guard works collaboratively with NOAA’s Law Enforcement Programs. The State Cooperative Enforcement program is also integral to NOAA enforcement capabilities. Nearly every U.S. coastal state and territory (with the exception of one—North Carolina) participates in this program, thereby providing tens of 

thousands of hours of dockside and at-sea fisheries patrols and inspections. 

NOAA General Counsel for Enforcement and Litigation attorneys are charged 

with the responsibility of bringing enforcement actions for violations of the living 

marine resource statutes which NOAA administers. NOAA’s law enforcement 

agents, officers, and attorneys throughout the country are critical to ensuring mission success. As we incorporate new and innovative management measures to rebuild and sustain our Nation’s fisheries, we will rely on support and cooperation 

from all of our partners. NOAA is committed to accomplishing its enforcement and 

management goals through collaborative, transparent and fair means. 

INSPECTOR GENERAL REPORT 

Following concerns expressed by Members of Congress and the fishing community, I requested the Department of Commerce Inspector General (IG) conduct a review of NOAA’s Office of Law Enforcement and NOAA’s General Counsel for Enforcement and Litigation in June 2009. I requested this review because I believe in 

the importance of NOAA’s law enforcement efforts and felt it was time to take a 

fresh look at how well NOAA’s enforcement efforts are supporting our mission to 

rebuild fisheries and to preserve good jobs and economic opportunity within our 

coastal and fishing communities. 

The Inspector General’s report, released on January 21, 2010, identifies a number 

of very serious issues with NOAA’s enforcement program, and recommends several 

steps we should take to address deficiencies. I take this report very seriously, and 

I am committed to responding in a comprehensive, thoughtful, and timely manner. 

I have instructed the NOAA General Counsel and the National Marine Fisheries 

Service Assistant Administrator to address the Inspector General’s recommendations and continue to work to improve our outreach and engagement with the fishing community at-large. While we develop a comprehensive plan to address the report recommendations in the 60-day timeframe, we have already taken a number 

of actions in response to the IG report. 

Let me briefly outline some of the immediate actions we have taken, the shortterm actions we are currently working on, and the long-term actions we are 

planning. 

Immediate Actions: 

First, I have instituted a freeze on the hiring of criminal investigators until an 

internal work force analysis is done to address the appropriate mix of criminal investigators and regulatory inspectors in the enforcement office. This action will better position the agency to address the report’s observation that the Office of Law 

Enforcement may not have the appropriate balance of criminal investigators and 

regulatory inspectors. 

Second, I have shifted oversight of the Civil Monetary Penalties Fund (also known 

as the Asset Forfeiture Fund) from NOAA’s National Marine Fisheries Service 

(NMFS) to NOAA’s Comptroller. This intermediate step will begin to address the 

IG’s criticism that internal controls over this fund are lacking, and that efforts are 

required to ensure proper use and verification of the funds. The IG is in the process 

of conducting a Forensic Audit on this fund. We will further review this issue once 

we have the results of that audit. 

Short-Term Actions: 

In addition, I have asked for the following short-term actions: 

20 

1. To address the report’s observation that NOAA lacks formal procedures for sufficiently documenting decisions regarding penalty assessments and settlements 

resulting in a process that provides the appearance of arbitrary decision-making (subject to compliance with applicable labor relations requirements), 

NOAA’s General Counsel will institute higher level reviews of penalties, permit 

sanctions, and settlements to ensure consistency and predictability. 

2. To address the perception among the regulated community and the interested 

public that NOAA’s regulatory processes and enforcement actions are arbitrary 

and lack transparency, the Assistant Administrator for Fisheries, working with 

our Office of Communications, will improve communications on enforcement 

issues, particularly in the Northeast. This effort will include actions to enhance 

understanding of fisheries regulations as well as to ensure transparency of enforcement actions. 

3. To develop forward-thinking approaches to enforcement efforts (including approaches to address the regulated communities concern of complex, conflicting, 

and excessive administrative burdens) and to assist NOAA leadership in formulating long-range policies for properly executing the agency’s enforcement 

actions to protect living marine resources, I have asked NOAA General Counsel, the Assistant Administrator for Fisheries and the Director of External Affairs to develop specific objectives and detailed plans for a summit on law enforcement practices to be held no later than June 30, 2010. This effort will include a list of possible chairs and co-chairs, the identification of possible 

facilitators, and a communications strategy. 

Long-Term Actions: 

In terms of longer-term actions, by March 21, NOAA will develop strategies that: 

1. Improve management information systems, including recommendations on actions to take advantage of the internet to increase transparency. This effort is 

intended to address current system inefficiencies and data integrity issues, and 

it will enable NOAA to more effectively use information to guide its decision 

making and increase transparency in our enforcement efforts. 

2. Implement standardized procedures for setting enforcement priorities. The IG’s 

report found that NOAA leadership has had minimal involvement in setting 

enforcement priorities. Implementing standard procedures for setting enforcement priorities will ensure consistency among regions while addressing regional needs. 

3. Strengthen enforcement attorney operating procedures, prosecution of charged 

cases, and settlement actions. The IG report identified a need for NOAA to undertake revisions to applicable procedural regulations and penalty schedules. 

This effort will provide greater consistency and clarity, and will reduce confusion among affected industry parties. 

4. Develop an outreach strategy to improve engagement with the local fisheries 

community and the public. In addition to improving the regulated community’s 

understanding of fishing regulations and NOAA’s enforcement activities, this 

action is intended to increase rapport between NOAA and fishermen, and lead 

to improved communications and informal problem solving. 

5. Review the NMFS Office of Law Enforcement’s staffing and procedures including both civil and criminal requirements, with a specific focus on ensuring that 

criminal procedures are not applied to civil offenses. NOAA’s review should include an independent review by a body familiar with administrative and operational procedures. The IG report called into question the proportion of law enforcement staff (i.e. criminal investigators versus uniformed enforcement officers), and it suggested that staffing is disproportionate to agency functions and 

operational need. The plan will be responsive to this concern, and will take into 

account information and outcomes resulting from the actions outlined above. 

These ten steps are intended to begin to respond to the issues identified by the 

Department of Commerce’s Inspector General. NOAA will build upon these steps to 

develop a comprehensive plan that responds to all of the Inspector General’s recommendations. 

Our marine and coastal resources are of immense value to the nation. Effective, 

fair, and transparent enforcement is critical to ensuring the long-term sustainability 

of these resources. This is a high priority issue for me and I am committed to addressing the IG’s recommendations and enhancing our efforts to work with the fishing industry and public in a more constructive manner. 

21 

Response to questions submitted for the record by Dr. Jane Lubchenco, 

Under Secretary of Commerce for Oceans and Atmosphere and Administrator, National Oceanic and Atmospheric Administration 

Questions from Chairwoman Madeleine Z. Bordallo (D-GU) 

1. Can you explain why the Inspector General’s report found that fines assessed in the Northeast were 250 percent to 500 percent higher than in 

other parts of the country? 

Answer: We have been unable to replicate the comparison provided by the Inspector General in his report, even using the raw data that was provided to the Inspector General. 

2. Ninety percent of NOAA’s law enforcement staff are criminal investigators, even though most infractions are misdemeanors. Does the OLE 

have a ‘‘criminal-enforcement-oriented structure’’? Does this structure 

reflect considerations of better pay and benefits for investigators rather 

than mission requirements? 

Answer: The Office of Law Enforcement (OLE) currently has 145 special agents 

and 18 enforcement officers. Though most of the sworn personnel within the agency 

are 1811 series criminal investigators, the intent of the agency was not to create 

a ‘‘criminal orientation’’ when they converted to this series nearly eleven years ago, 

but as a means to assure the recruitment and retention of a well rounded and highly qualified skill set. This was done because of the variety of legislative mandates 

of the OLE, the vast geographic area covered and the limited number of personnel 

available to cover these requirements. In part because of this vast geographic area, 

the existence and proximity of state enforcement partners who are authorized to respond to and assist with the mission requirements of the OLE is invaluable. 

OLE relies on state partners to conduct a very significant level of patrol and inspection work. The states support the work of the OLE and the United States Coast 

Guard. The analogy that is often used for the cooperative enforcement program is 

that the OLE serves the ‘‘detective’’ role and the state partners are the ‘‘cop on the 

beat’’. The states conduct a large percentage of the dockside and near shore patrols, 

the Coast Guard conducts the off shore and deep water patrols, and NOAA does the 

majority of the investigative work. The annual percentage of the OLE budget for 

the state cooperative enforcement program is approximately 30 percent of the total 

Enforcement budget. Over the past three years, the program has generated an annual average of 139,952 person hours per year and includes approximately 1,622 

dedicated state marine law enforcement officers. 

The premise of using special agents to meet mission requirements within the OLE 

has been the primary approach of the agency almost since its inception in 1970. 

Special agents were, until 1999, classified under the 1812 ‘‘fish and game’’ series 

and were then converted into the 1811 ‘‘criminal investigative’’ series. Under either 

series the agents have conducted almost entirely the same type of both criminal and 

civil investigative work with the specific factors of individual cases serving to dictate 

the venue, civil or criminal, through which the case would be pursued. 

In the early 1990s the OLE began supplementing its special agent staff with uniformed enforcement officers to conduct certain patrol and inspection related activities. The primary impetus for this program was the establishment of the Individual 

Fishing Quota (IFQ) program in Alaska. The program afforded the assurance that 

vessels would off-load only at certain ports and also required advance notice of landing which ensured the agency could inspect a reasonable percentage of off-loads. Enforcement officers were hired and stationed at or near those ports to conduct IFQ 

enforcement work. The agency also hired a limited number of uniformed enforcement officers in other regions to conduct patrol and inspection activities. The program was not expanded extensively beyond the IFQ program because in 2001 the 

state cooperative enforcement program began as an alternative measure to cover 

some of the patrol and inspection mission requirements. 

Enforcement officers were classified within the 1812 ‘‘fish and game’’ series which 

was eliminated by OPM in 2008. At that time agencies with personnel in the 1812 

series were required to reclassify them into the 1811 criminal investigator series or 

1801 general law enforcement category. All OLE enforcement officers were reclassified from the 1812 series to the 1801 general law enforcement series. 

Recruiting and hiring the highest potential level of skill set possible to meet the 

complex legal and vast geographic challenges of the OLE has been the intent and 

objective of the agency. The 1811 criminal investigative series has afforded the OLE 

that ability for several reasons. The 1811 series is the most widely recognized and 

utilized series by the many federal law enforcement agencies. The 1811 series therefore provides a large recruiting source for well-trained and experienced agents who 

22 

have an interest in moving into the mission area of the OLE. There are somewhat 

more enhanced benefits provided to OLE employees in the 1811 series, relative to 

those in the 1801 series. These benefits include, but are not limited to, participation 

in the law enforcement special retirement program, higher potential pay levels, and 

coverage under the provisions of the ‘‘good Samaritan’’ act. 

3. Over the last decade, what have been the uses of the Asset Forfeiture 

Fund? 

Answer: The provision of the Magnuson-Stevens Fishery Conservation and Management Act that establishes the Asset Forfeiture Fund (Fund) specifies that it may 

be used for a number of different purposes to include: ‘‘...(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’’. 

Thus, the Asset Forfeiture Fund has been utilized: 

(1) By Office of Law Enforcement agents and the General Counsel Enforcement 

and Litigation attorneys for both domestic and international travel to support 

numerous enforcement requirements; 

(2) To purchase required equipment including, but not limited to, computers, copiers, vehicles, and firearms; 

(3) To support contract services including, but not limited to, services for the Case 

Management System, research, litigation and legal assistant activities, financial analysis and collections, expert analysis and some forensics work, expert 

witness services, freezer facilities for the temporary maintenance of seized 

product, vessel assessment surveys for seized vessels, and the security and 

docking of seized vessels; 

(4) To support expenses related to investigative operations such as the purchase 

of illegal product during undercover operations and payment for rewards; 

(5) For a high percentage of all training provided to newly hired employees to attend the Federal Law Enforcement Training Academy; and 

(6) To pay for various computer upgrades and data information systems for the 

agency. 

Questions from Republican Members 

1. The IG report recommends that overall fisheries management would 

benefit if enforcement were targeted better to meeting the goals of the 

specific fishery management plans. This seems to be a simple concept. 

Why has it not been implemented? Why aren’t regional law enforcement 

personnel under the direction of the regional administrators or at least 

why isn’t there better coordination between the regional management 

goals and the headquarters enforcement personnel? 

Answer: While the concept of targeting enforcement action to specific fishery 

management plans is simple, execution of those plans is greatly complicated by multiple mission requirements supported by the same resources. Enforcement staff address commercial fishing enforcement, sanctuary enforcement, import and trade restrictions, marine mammal protection, and the protection of marine endangered species, in addition to supporting State marine conservation mission requirements 

when federal laws are violated through commerce. Focused enforcement occurs 

when possible using fishery management plan specific requirements which are 

based on priorities established in conjunction with the staff of the Regional Administrators’ offices. NOAA Office of Law Enforcement’s (OLE) management staff and Office of General Counsel for Enforcement and Litigation (GCEL) regional attorneys 

work closely with Regional Administrators and their staffs to understand and establish priorities. 

OLE staff report to Fisheries Headquarters in recognition of mission requirements 

(such as Domestic laws supporting treaty obligations, Sanctuary/Monument Enforcement, support for State marine conservation mission requirements, etc.) that exceed 

Fishery Region responsibilities and authorities. 

Setting priorities is an important tool for allocating resources to help assure an 

effective enforcement program. As priorities are set, we must take into account the 

overarching goal to assure compliance with all of the laws NOAA has the responsibility for implementing. The Inspector General’s report has asked us to assure that 

there is more involvement at the NOAA management level to assure that priorities 

are established, confirmed, and met at that level. 

NOAA is implementing a more formal approach for OLE and GCEL to validate 

Regional enforcement priorities and integrate them with national priorities. The 

process, laid out in Appendix 6 of NOAA’s March 18, 2010 official response to the 

Office of Inspector General’s January 21, 2010 report on NOAA Fisheries EnforceVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
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ment Programs and Operations, will be defined in a plan to be finalized by July 29, 

2010. The approach will include a high level (Assistant Administrator for Fisheries 

and NOAA General Counsel) annual review of the effectiveness of enforcement over 

the last year to be informed by prior consultation with appropriate stakeholders. 

The annual review will also establish an approach, criteria, and a timeline for determining regional and national priorities for the coming year. Subsequent steps for 

the establishment of annual priorities at both regional and national levels will include outreach, assessment of available resources, public comment, consultation 

with General Counsel, and ultimately approval by the Assistant Administrator for 

Fisheries. 

2. The IG report found the NOAA data systems to be unreliable. The report 

found ‘‘weaknesses’’ in GCEL’s and OLE’s current case management information systems—in particular, data that are missing, entered into the 

systems inconsistently, or vague. In addition, the report noted that ‘‘neither OLE nor GCEL is able to generate data from their management information systems on recidivism rates, which is important for assessing 

deterrence and therefore program effectiveness.’’ Why is there no law 

enforcement data tracking system within either the Office of Law Enforcement or NOAA General Counsel? Wouldn’t such a tracking system 

help identify repeat and serious offenders? 

Answer: The NOAA Office of Law Enforcement (OLE) and Office of General 

Counsel for Enforcement and Litigation (GCEL) operated from a shared system 

known as Enforcement Management Information System (Information System) for 

many years. Prior to 2004 that system was determined to be antiquated and inadequate for the needs of the OLE. GCEL, however, found the system to be adequate 

to meet their needs at the time. After several years of planning and acquisition 

work, OLE updated their system and in 2006 converted to a new system known as 

Law Enforcement Agencies Data System (LEADS). The new OLE system included 

a ‘‘feed’’ to the Information System for continuing use by GCEL. Several years later, 

GCEL found that they were experiencing deficiencies with the Information System 

and began work to replace it as well. Since that time, the new system within OLE 

known as LEADS has also come to the point of requiring updates and transition 

to a ‘‘next generation’’ system. Therefore, the OLE and GCEL are working collaboratively with our vendors to assure the implementation of a new system for GCEL 

and upgraded system for OLE that will synchronize the appropriate and necessary 

data exchanges to keep both systems up-to-date and timely. 

The existing system does allow us to determine if a specific individual is a recidivist. However, it does not have a separate or individual search function to display 

actual rates of recidivism. If this function were enhanced, it could be used to target 

specific trends in certain categories of violations or over extended time frames to 

more effectively identify problem areas. 

As part of our response to the January 2010 Office of the Inspector General Report, we are reviewing our current systems, and will make improvements as needed, 

to ensure OLE and GCEL have more efficient and effective data management processes. 

3. According to the IG Report, recommendations on the number and percentage of criminal investigators in NOAA Office of Law Enforcement 

were made in a similar report in 1998 yet again are repeated in this report. Why did the agency continue to hire a higher and higher percentage of criminal investigators despite the IG recommendation? 

Answer: The 1998 Office of Inspector General (OIG) Report references a ‘‘Role 

and Deployment Study’’ conducted by the NOAA Office of Law Enforcement. The 

1998 OIG report questions that study’s value by suggesting that predetermined constraints prevented the study from considering all available options. The report cites 

the fact that the list of self imposed constraints set by the Chief of Enforcement 

(Chief) included a requirement to achieve a 1:1 ratio of special agents to fishery patrol officers. It further states that the Chief imposed the constraints because of 

budget limitations and direction from the Assistant Administrator for Fisheries, as 

well as several other factors. The OIG then went on to point out that: 

‘‘these constraints prevented the study from evaluating all available options 

for Enforcement to achieve efficiencies and effectiveness. For example, 

adopting a 1:1 ratio of special agents to fishery patrol officers will reduce 

the number of agents and increase the number of officers. One reason given 

for this constraint was to increase Enforcement visibility. However, by dictating that increased visibility be achieved by reducing special agents ignores the option of increasing visibility through greater use of existing conVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
24 

tracts with other enforcement organizations, such as state enforcement organizations.’’ 

The subsequent recommendations provided to the Assistant Administrator and 

the Chief were to further evaluate the impact of the constraints to determine if they 

were appropriate and to initiate a staffing and deployment plan for Fiscal 

Year 1999 that included all 164 full-time equivalent personnel. The 1998 OIG report did not address the use of criminal investigators. It called into question the 

ratio of special agents to enforcement officers that had been suggested by the former 

Chief and former Assistant Administrator. 

After concluding a 1999 pilot study on the use of the cooperative enforcement program through a partnership with the state of South Carolina, the agency determined that it would be effective to pursue an expansion of the cooperative enforcement program. The Administration and Congress agreed, and funding was appropriated in 2001 to support an expansion of the cooperative enforcement program approach through agreements now known as Joint Enforcement Agreements. That program has been funded every year since 2001 and now includes partnerships with 

every U.S. coastal state and territory, with the exception of North Carolina. Over 

the past decade, the Office of Law Enforcement (OLE) has operated with the understanding that the state agencies would supplement the patrol and inspection aspect 

of its mission through the cooperative enforcement program. Therefore, the OLE 

continued to hire special agents to focus on conducting investigative work. 

Though the use of criminal investigators to staff the special agent positions was 

not directly addressed in the 1998 report, it is very clearly identified as a subject 

for review in light of the 2010 report. As part of the NOAA response to the 2010 

report, we will conduct a workforce analysis to determine the proper mix of personnel within the OLE, as recommended by the OIG. 

On February 5, 2010, at the direction of Dr. Lubchenco, NOAA placed a freeze 

on the hiring of criminal investigators until the workforce analysis can be concluded. 

At such time as that analysis is completed we will make further determinations on 

the appropriate staffing of the OLE. 

4. Why don’t the General Counsel staff who work on fisheries cases work 

for the Fisheries AA? Why do all of the NOAA General Counsel staff 

work for the NOAA Administrator rather than the line offices they 

service? 

Answer: NOAA enforcement attorneys support more than just a single line office. 

For example, they not only support the National Marine Fisheries Service, but also 

the Office of National Marine Sanctuaries. All NOAA General Counsel attorneys (including enforcement attorneys) report to the NOAA General Counsel, who reports 

directly to the NOAA Administrator. 

5. How much does NOAA rely on state for law enforcement through Cooperative Enforcement Agreements? Please include in this explanation the 

percentage of funding, man hours, violations reported, or some other 

meaningful measure to quantify the role of the states in NOAA fisheries 

enforcement. How does NOAA’s reliance on states vary from state to 

state or region to region? 

Answer: The NOAA Office of Law Enforcement (OLE) relies on the state partners 

to conduct a very significant level of patrol and inspection work. The states support 

the work of the OLE and the United States Coast Guard. The analogy that is often 

used for the cooperative enforcement program is that the OLE serves the ‘‘detective’’ 

role and the state partners are the ‘‘cop on the beat’’. The states conduct a large 

percentage of the dockside and near shore patrols, the Coast Guard conducts the 

off shore and deep water patrols, and NOAA does the majority of the investigative 

work. The annual percentage of the OLE budget for the state cooperative enforcement program is approximately 30 percent of the total Enforcement budget. Over 

the past three years, the program has generated an annual average of 139,952 person hours per year and includes approximately 1,622 dedicated state marine law enforcement officers. 

The OLE works throughout all coastal areas of the U.S., and staffs over 50 duty 

stations with a current staffing of 163 sworn employees consisting of 145 special 

agents and 18 enforcement officers. In some cases, thousands of miles may separate 

one OLE agent from another. In part because of this vast geographic area, the existence and proximity of state enforcement partners who are authorized to respond to 

and assist with the mission requirements of the OLE is invaluable. 

NOAA is currently undertaking a workforce analysis of OLE. We will take into 

consideration the impact and dynamics of both the state partnerships and the role 

25 

of the United States Coast Guard when conducting the workforce analysis to determine proper staffing levels for the OLE. 

6. How much funding is in the FY2011 budget request for Cooperative Enforcement Agreements with state enforcement agencies? How does this 

compare to previous years? Should this funding be increased to meet 

NOAA’s enforcement needs? 

Answer: The FY 2011 Budget Request for Cooperative Enforcement is $18.8 million; the FY 2010 Request was $18.6 million. In FY 2009, the request was approximately $17.6 million, and the program had been roughly similarly funded for a 

number of years prior to FY 2009. Though some states seem to be limited in terms 

of the amount of funding they can use effectively and are therefore not willing to 

consider providing more Joint Enforcement Agreement work, many states remain 

open to conducting additional federal enforcement work within the scope of the Joint 

Enforcement Agreement program. 

7. Do you agree that data collection, basic fisheries science, and enforcement are the responsibility of NOAA? 

Answer: Yes, based on the mission requirements set by the Department of Commerce and established by our statutory provisions, federally managed fisheries are 

inherently NOAA responsibilities. However, it is important to acknowledge that 

partnerships with states, through the cooperative enforcement program, have been 

an invaluable complement to NOAA’s enforcement efforts. Under this program, state 

enforcement partners conduct a very significant level of patrol and inspection work 

related to marine enforcement. Additionally, cooperative research projects with fishermen, universities, and other groups have enhanced NOAA’s ability to collect data 

and conduct fisheries science. While inherently NOAA’s responsibility, cooperative 

enforcement with States and Territories and cooperative research remain vital programs through which NOAA addresses these stewardship requirements. 

8. Regional NOAA General Counsel personnel and the Coast Guard both 

participate in regional fishery management councils. Is there a need for 

other NOAA law enforcement personnel to attend all council meetings? 

Answer: In addition to the participation by NOAA General Counsel and the U.S. 

Coast Guard, NOAA Enforcement personnel also participate in Council meetings 

and processes. The Special Agents in Charge of each Office of Law Enforcement 

(OLE) Division attend council meetings and participate in the various law enforcement committees of the fisheries management councils. Their access to and participation in developing regulations varies somewhat between councils. We affirm the 

need for continuing the practice of OLE personnel attending all council meetings, 

particularly to participate in all enforcement committee deliberations and to present 

an enforcement report to the councils at each meeting. What may perhaps be missing is a standardized process for all eight councils to assure that, within certain protocols, consideration of enforcement requirements is given formal review and documented in a manner that assures appropriate vetting within the council process. 

9. You have recommended that NOAA set up a law enforcement summit. Do 

you intend to just hold one national summit or do you plan to hold these 

in each of the regions? Do you plan on personally attending any of the 

law enforcement summits? 

Answer: We plan to hold a National Enforcement Summit, and I plan to attend. 

The goals for the Summit and additional outreach surrounding the Summit are to 

develop forward looking ideas in areas of communication, priority setting, and program implementation, to help us achieve an enforcement program that ensures fair 

and effective protection of the Nation’s natural resources in NOAA’s areas of responsibility. Plans for the Summit are well under way. We are working with the U.S. 

Institute for Environmental Conflict Resolution (U.S. Institute)—a well-respected 

agency with the skills and experience—to lead all the participants in a useful Summit. 

The U.S. Institute’s plan for the Summit includes: 

• Identifying a Summit facilitator drawing on the National Roster of Dispute 

Resolution and Consensus Building Practitioners, and providing continuing 

oversight, coordination, and project management. 

• Contacting key persons, organizations, and agencies that have been involved 

in past fisheries enforcement issues to design a structure for the planning process including key events, milestones, schedule, Summit duration, agenda outline/topics, participants, and communications strategy. The participants of this 

design planning process will remain engaged as summit design is finalized. 

26 

• Working with the participants identified above and other key stakeholders 

identified during these discussions to finalize Summit plans including objectives, a final agenda, event logistics, a communication strategy, and a final list 

of participants. 

• Facilitating the actual summit. 

• Preparing a final report, including participant review and comment, and meeting with NOAA management to review the process and lessons learned, and 

to discuss follow-up plans for actions identified in the summit. 

At this time, there are no plans to hold regional law enforcement summits. However, NOAA has plans to increase its outreach efforts to address concerns with the 

enforcement of commercial fishing regulations. They include: 

• Fisherman’s forums held in conjunction with Fishery Management Council 

meetings, 

• Conducting a pilot project to test the value of a Web-Portal and Repository to 

improve public access to regional regulatory requirements, 

• Publication of easy-to-read compliance guides, 

• A Frequently Asked Questions web link for enforcement related issues, 

• Review of ‘‘compliance assistance programs’’ utilized by other regulatory agencies, and 

• Exploration of the value of a Fisheries Enforcement E-mail ListServ to better 

distribute information to constituents. 

10. According to the report, NOAA General Counsel’s office suggested that 

‘‘prosecution of each case must be assessed based on its own individual 

merits and circumstances.’’ The same person then goes on to state that 

there is a small and extreme minority who ‘‘regularly violate regulations.’’ However, the IG report states that the data management system 

at NOAA is so inadequate that ‘‘neither OLE nor GCEL is able to generate data from their management information systems on recidivism 

rates, which is important for assessing deterrence and therefore program effectiveness.’’ How would you respond to this apparent disconnect? 

Answer: Current data systems within the Office of Law Enforcement and Office 

of General Counsel for Enforcement and Litigation (GCEL) can be queried to determine if an individual is a repeat offender. Past case dispositions are a matter of 

record and can accurately and readily be determined. The Inspector General’s report 

recommends an inherent part of our data management system be the capability to 

conduct more general queries of collective data to conduct analysis and determine 

trends. Such a capability would be helpful for use in determining enforcement priorities, identifying weaknesses in the regulatory system, and, most importantly, supporting more focused direction of enforcement activities in problem areas. 

The matter of establishing a fair and transparent process for assessing fines and 

making prosecutorial determinations by the Office of General Counsel is being addressed through a number of measures under the direction of Lois Schiffer, NOAA 

General Counsel and myself. We have recently shifted the decision making in these 

matters to the headquarters level. Additional new measures to establish schedules, 

protocols, and other steps to assure consistency and fairness are being considered 

as well. 

11. Your plan for addressing the recommendations of the IG includes better 

communication with the industry. As you know, there was a rally held 

the same day as the Subcommittee hearing that included a large number of recreational and charter fishermen who are concerned that their 

livelihoods are being compromised by fishery closures based on what 

they consider faulty or incomplete science. While this was not an issue 

examined by the IG for this report, this seems to be a similar case of 

NOAA not being able or willing to do its basic duties and/or not communicating well with the regulated community. To make matters worse, 

the FY2011 budget flat-lines the fisheries stock assessment account 

which will not help matters. Should we consider having the IG take a 

look at this issue as well? 

Answer: On March 23, the Assistant Administrator for the National Marine Fisheries Service, Eric Schwaab, announced the appointment of Russell Dunn as the 

NOAA Fisheries National Policy Advisor for Recreational Fisheries and the appointment of the 22 members of the recreational fishing community from around the Nation to a Recreational Fisheries Working Group to provide expertise on saltwater 

recreational fishing to NOAA’s Marine Fisheries Advisory Committee. In addition, 

on April 16 and 17 we held a National Recreational Fishing Summit. 

27 

These actions fulfill a pledge I made to the recreational fishing community to put 

in place the national advisor to help lead NOAA’s efforts to create a stronger and 

more productive partnership between NOAA and America’s saltwater angling community. 

With regard to stock assessment funding, while there is no substantial increase 

in the FY 2011 Budget Request ($51.0 million in FY 2010 to $51.7 million in FY 

2011) the program has grown from $31.6 million in FY 2008 to $51.7 million in FY 

2011. In addition, the FY 2011 Budget Request includes $9 million for the Marine 

Recreational Information Program, which also has recreational data collection components. 

12. NOAA seems to have a systemic problem with relating directly with the 

fishing community in some regions - New England in particular. Congress had to require the Science and Statistical Committees to meet in 

conjunction with the Council meetings so that fishermen could actually 

see how their harvest levels were developed. It wasn’t until Congress 

forced the agency to do cooperative research that we got scientists on 

fishing boats so they could see what the fishermen were seeing. It 

wasn’t until Congress required Marine Mammal Take Reduction Teams 

which included fishermen for NOAA to listen to fishermen before they 

regulated their fishing activities in relation to marine mammals. How 

do you plan to repair the trust between the agency and the regulated 

community without further Congressional mandates? 

Answer: I am committed to rebuilding trust between NOAA and our regulated 

fishing communities. I personally have participated in numerous meetings to directly engage our constituents, particularly in New England, but also in other parts 

of the country. I have also not focused solely on one sector within our constituency. 

I have met with commercial fishermen, recreational fishermen, environmental 

groups, scientists and others to discuss the ongoing challenges we are facing in fisheries management. NOAA is also in the process of planning two key meetings. The 

first is our recreational fishing summit, which was held in April. The Summit focused on engaging our recreational constituents in a constructive dialogue to generate possible solutions to the issues they have identified, such as improvements in 

data collection. NOAA is also planning a summit to discuss our enforcement activities with our constituents. The National Enforcement Summit will focus the discussion on options NOAA could pursue to improve our enforcement program. As we 

move forward, my leadership team, in particular Eric Schwaab the Assistant Administrator for Fisheries, and I will continue to engage with the fishing community 

to strengthen our relationship. 

13. You were quoted in a recent press release as saying, ‘‘We can’t manage 

effectively without trust.’’ Yet fishermen seem to be more angry at the 

agency than in recent memory. It probably doesn’t help that a number 

of high profile initiatives which have been started since you took office 

are viewed as having the outcome of fewer fishermen and fewer fishing 

opportunities including: the Marine Spatial Planning initiative that 

will remove areas available for fishing; the Catch Shares initiative that 

is taking money away from traditional fisheries needs such as cooperative research and stock assessments and moving it toward fisheries 

management systems that encourage less participation; a proposal for 

a new National Climate Service which will certainly take interest within the agency away from fisheries management; a budget request that 

funds one new satellite program rather than provide increases to fisheries management needs, etc. All of these in combination seem to be an 

anti-fishing agenda for this administration at a time when the jobless 

rate is at or above 10 percent. Can you tell fishermen why they should 

trust this management team at NOAA? 

Answer: I am committed to rebuilding trust between NOAA and the fishing community and working with them to achieve sustainable fisheries, as required by the 

Magnuson-Stevens Fishery Conservation and Management Act. I personally have 

participated in numerous meetings to directly engage our constituents all around 

the country. Using what I’ve heard to inform our way forward, my overarching goal 

is to strengthen our use of an ecosystem approach to management, grounded in 

sound science, to achieve sustainable fisheries and vibrant coastal communities. Attaining this goal will not be easy. It will require engagement by members of the 

fishing community, scientists, managers, the environmental community and the 

public at-large. 

28 

Our new initiative on catch shares is intended to increase the use of these programs, where and as appropriate, to support sustainable fisheries and more resilient 

coastal communities and economies. We recognize that basic scientific information, 

including cooperative research and stock assessments, are critical to the success of 

fisheries management, and catch shares is not designed to reduce or jeopardize such 

critical information needs. 

The establishment of a NOAA Climate Service is a key goal for our agency, and 

is an issue that will have important impacts on our management of fisheries as well 

as many other economic, environmental and social sectors. The need for reliable, 

timely and relevant climate information and services is growing daily. As an example, changes in ocean conditions including temperature, currents and chemistry, can 

lead to shifting food web and fish population distributions. The work of a Climate 

Service is important for identifying these potential changes and understanding how 

we might address any needed mitigation or adaptation. 

Part of the rationale for taking an ecosystem approach to management is to provide a larger context for understanding how to best balance the different uses of the 

ocean. Coastal and Marine Spatial Planning (CMSP) is not about drawing lines on 

a map and restricting fishing. Rather, it is a comprehensive planning process that 

involves all resource managers, stakeholders and users (including fishermen and 

fishery management councils) across the broad spectrum of sectors that touch the 

ocean. It is intended to build upon and significantly improve existing decision-making and planning processes, minimize user and use conflicts, identify compatible 

uses and activities, and result in a more coherent system of managing the diversity 

uses. CMSP is intended to improve not only ecosystem health but to also facilitate 

sustainable economic growth in coastal communities. 

It is critical as well that we ensure the continuity of climate, weather, and ocean 

observations, both in situ and from space. A key effort within this context that I 

will continue to support strongly is improved satellite management and acquisition. 

Targeted investments are needed now, as proposed in the FY 2011 budget, to sustain and enhance satellite observations including a major realignment of our polarorbiting satellite program. This will separate the civilian and military satellite procurements, but retain sharing of common assets such as ground system, and NASA 

will lead the acquisition for NOAA satellites. We must preserve critical operational 

weather and climate observations into the future. 

An additional goal I have set for NOAA is to improve our communication and engagement efforts. This includes not only better explaining our science, but also 

strengthening our engagement with constituents on the local, regional and national 

scale. The two summits we are hosting, one on recreational fishing and one on enforcement, exemplify our commitment to work with fishermen, the environmental 

community, and the public to discuss ways we can address some of the concerns 

that have been expressed. 

Ms. BORDALLO. I thank you, Dr. Lubchenco. If you would remain 

seated there, my colleagues have arrived, and I would like to call 

on my colleague Mr. Jones from North Carolina to please come up 

and testify. Mr. Frank will be here any moment. You can begin, 

Mr. Jones. 

STATEMENT OF HON. WALTER B. JONES, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF NORTH CAROLINA 

Mr. JONES. Madame Chairwoman, I want to thank you and the 

Ranking Member for holding this hearing. I think that it is most 

appropriate, and I will explain the reason I say thank you and why 

it is most appropriate. 

In January, the Inspector General of the United States Department of Commerce released the findings of its seven-month investigation into NOAA law enforcement, the Federal agency responsible for enforcing U.S. fishery laws. The IG report came in response to requests by the Massachusetts and the North Carolina 

congressional delegations for an investigation into allegations of 

overzealous commercial fisheries enforcement by the agency, alleVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
29 

gations frankly that I have heard for 15 years, and had tried to get 

the IG’s office to look into this before. 

Among other things, the Inspector General’s report found, and I 

quote, ‘‘systematic, nationwide issues adversely affecting NOAA’s 

ability to effectively carry out its mission of regulating the fishing 

industry.’’ These issues have contributed significantly to a highly 

charged regulatory climate and a dysfunctional relationship between NOAA and the fishing industry. 

NOAA’s civil penalty assessment process is arbitrary and unfair. 

NOAA workforce composition is dramatically misaligned to its mission. Only about 2 percent of its caseload has been criminal investigations, yet over 90 percent of its enforcement personnel are 

criminal investigators. Ninety percent of its enforcement personnel 

are criminal investigators. I think that is so very important, a clear 

imbalance. This again is the IG’s report. NOAA’s Assets Forfeiture 

Fund, which contains the money from civil penalties it collects from 

fishermen, has a balance of $8.4 million, but department officials, 

and I quote, ‘‘are not aware of the fund having ever been audited,’’ 

and the account under which they are maintained has weak, weak 

internal controls. 

This has led the IG to launch a forensic review of the fund. And 

just yesterday, at a House Government Reform Committee hearing 

in Massachusetts, the IG stated that early results of that review 

show that proceeds from the fund were spent on foreign travel by 

NOAA leadership. Madame Chairwoman, the IG report confirms 

what fishermen have known to be true. Federal fisheries law enforcement is out of control and needs a major overhaul. That is one 

reason why last week an estimated 5,000 fishermen from around 

this country came to Capitol Hill to rally for relief from an agency 

that is working against them, not with them. 

I would like to make one more point that was not in the IG report, but which needs to be stated. According to NOAA’s budget 

documents, since 1997, the number of NOAA fishery enforcement 

personnel has grown by over 40 percent. But according to NOAA’s 

latest statistics on the state of the commercial fishing industry, 

from 1997 until 2006, landings of fish in this country have dropped 

by 5 percent, and in my home State of North Carolina landings 

have fallen over 66 percent. 

In short, we have more law enforcement officers policing a 

shrinking industry. Furthermore, when these statistics are viewed 

in light of this report, it seems that NOAA’s out-of-control law enforcement tactics have been at least partly responsible for chasing 

honest fishermen out of business. In these economic times, when 

unemployment is 10 percent, and when over 80 percent of seafood 

consumed here is imported, America cannot afford to put more of 

its citizens out of work and cede more of our markets to foreign 

producers like China. 

I hope the agency understands how serious this IG report is, 

given the major problems the IG has identified—including serious 

discrepancies in enforcement, fines, and penalties. In the interest 

of fairness and transparency, it seems appropriate to put a hold on 

active prosecutions of fishermen until the problems with NOAA law 

enforcement are resolved. The North Carolina delegation has joined 

Chairman Frank and the Massachusetts Delegation in asking 

30 

NOAA to do this. I hope the Chairwoman and the Ranking Member 

will join us in making sure that the agency honors that request to 

put a moratorium on these prosecutions. 

In the meantime, I look forward to working with the Subcommittee and the agency to quickly reform the policies, procedures, and personnel responsible for these problems. Madame 

Chairwoman, I would like to thank you again for this opportunity 

to testify. At this time, I will ask unanimous consent that a statement from the North Carolina Fisheries Association President Sean 

McKeon be included in the record. 

Ms. BORDALLO. No objection. So ordered. 

[The statement submitted for the record by Mr. Jones follows:] 

Statement submitted for the record by Sean McKeon, President, 

North Carolina Fisheries Association 

Thank you for this opportunity to present these comments related to the recent 

Inspector General of the U.S. Department of Commerce findings of its 7-month investigation into the programs and operations of the National Oceanic and Atmospheric Administration (NOAA). 

My name is Sean McKeon; I am the president of the North Carolina Fisheries Association, a non-profit trade association representing the commercial seafood industry primarily in North Carolina since 1952; our membership consists of fishermen, 

seafood processors, dealers, and myriad related businesses all affected by the decisions made by National Marine Fisheries and their many departments, particularly 

its enforcement arm, the subject of the OIG investigation. 

As you are aware, the Report states, inter alia, investigators uncovered 

‘‘...systemic nationwide issues adversely affecting NOAA’s ability to effectively carry 

out its mission of regulating the fishing industry. These issues have contributed significantly to a highly-charged regulatory climate and dysfunctional relationship between NOAA and the fishing industry’’—a glaring finding to say the least, and one 

for which the fishing industry has been seeking relief for decades. 

According to its website NOAA’s mission is as follows: 

‘‘Stewardship of living marine resources through science-based conservation and management and the promotion of healthy ecosystems 

NOAA Fisheries is responsible for the management, conservation and protection 

of living marine resources within the United States Exclusive Economic Zone. 

NOAA Fisheries also plays a supportive and advisory role in the management of living marine resources in coastal areas under state jurisdiction, provides scientific 

and policy leadership in the international arena and implements international conservation and management measures as appropriate. Under this mission, the goal 

is to optimize the benefits of living marine resources to the Nation through sound 

science and management. This requires a balancing of multiple public needs and interests in the sustainable benefits and use of living marine resources, without compromising the long-term biological integrity of coastal and marine ecosystems. Many 

factors, both natural and human-related, affect the status of fish stocks, protected 

species and ecosystems. Although these factors cannot all be controlled, available 

scientific and management tools enable the agency to have a strong influence on 

many of them. Maintaining and improving the health and productivity of these species is the heart of our stewardship mission. These activities will maintain and enhance current and future opportunities for the sustainable use of living marine resources as well as the health and biodiversity of their ecosystems.’’ 

If in fact, as the Report highlights, current procedures and policies adversely affect the Agency’s ability to properly carry out its mission, then both the ecological 

and economic responsibilities of the Agency are not being satisfied. In the case of 

the commercial fishing industry the Agency’s lack of ability to carry out its mission 

in these two areas (ecology/economy) is having overwhelming negative and deleterious affects on the industry. Many coastal communities continue to lose valuable 

infrastructure as a direct result of the Agency’s ‘‘systemic’’ failures related to its 

management of this nation’s marine resources. 

With respect to penalties assessed fishermen the Report found, NOAA’s ‘‘civil penalty assessment process is arbitrary and unfair’’. In many incidents fishermen are 

threatened with exorbitant fines for seemingly mild infractions only to be told reduced amounts would be accepted if made promptly and without going to AdminisVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
31 

trative Law Courts. In other words, the OIG Report found many fishermen settled 

with the Agency after being told paying a lesser amount was better than going to 

the ALJ courts where fines could be increased even more than the original amount. 

To many it has become a form of legalized extortion, scaring people with the threat 

of unimaginable fines when the real purpose seems to be collecting whatever could 

be collected from the fishermen or related fish business. To make matters worse the 

report noted NOAA’s Asset Forfeiture Fund—which contains proceeds from civil 

penalties it collects—has a balance of $8.4 million as of December 31, 2009, but Department officials ‘‘are not aware of the fund’s having ever been audited’’, and that 

‘‘the account under which they are maintained has weak internal controls’’ leading 

the IG to launch a pending ‘‘forensic review of the fund’’. This finding alone makes 

the entire management structure and regime at NMFS suspect and worthy of a 

more far reaching and prolonged investigation, particularly of its in-house oversight. 

For years fishermen have been complaining about ‘‘being treated like criminals’’ 

when dealing with enforcement by the Agency. Not surprising the Report noted, 

with a high degree of focus, that NOAA’s workforce composition is dramatically 

misaligned to its mission, ‘‘only about 2 percent of its caseload has been criminalinvestigative, yet over 90 percent of its enforcement personnel are criminal 

investigators—a clear imbalance’’. It seems in order to get paid more money many 

in the enforcement department opt to become criminal investigators, this despite the 

fact that 98% of all Magnuson violations are civil misdemeanors, not criminal 

violations. 

The Report also highlighted one important reality overshadowing the entire federal fisheries management system; that is fishermen have been asking for relief 

from the overly zealous and hostile environment that they must by law deal with 

when interacting with NMFS. It is not possible to continue to work on the water 

and provide the American consumer with the seafood products they demand when 

the environment is so hostile and ‘‘out of control.’’ 

Recently, in response to the OIG Report NOAA Administrator Jane Lubchenco instructed the agency’s head attorney and its top fisheries manager to take immediate 

and long-term actions to improve the agency’s enforcement and legal operations and 

enhance its relationship with the fishing community. She said, ‘‘I take this report 

very seriously and I want a comprehensive approach to addressing both the IG’s observations and the perceptions of fishermen. Fish are a public resource that should 

be protected through proper regulation and enforcement for the benefit of Americans, coastal economies and the marine environment. We can’t manage effectively without trust,’’ said Dr. Lubchenco. ‘‘Taking these steps will help us resolve 

the issues identified by the Inspector General and enhance our efforts to work with 

the fishing industry and public in a more constructive manner.’’ (Emphasis added) 

Despite the reactions of Dr. Lubchenco to the Report, her statements and her actions-item list (A ten point list outlined in a recent statement by Dr. Lubchenco*) 

to fix the problem fall woefully short of the type action necessary to truly change 

the modus operandi of the Agency, which, as the Report indicates, is one of mismanagement and open hostility to the United States Commercial Fishing industry. 

Congress, not NMFS/NOAA should undertake the necessary steps to address the 

‘‘systemic nationwide issues’’ documented in the OIG Report. Individuals who sit at 

the top of NMFS enforcement management should, at very least, be suspended 

pending the outcome of these hearings and the concomitant OIG investigation that 

is ongoing; the forensic audit of the assessment funds, continued investigation into 

‘‘closed’’ cases, etc. Congress should also see to it that prosecutions of fishermen and 

or fishing businesses be suspended until this investigation is complete, and Congress, not NMFS/NOAA should be auditing the progress of steps taken to ensure 

compliance with recommendations by the OIG. 

In short, the OIG Report makes certain that federal fisheries management policy 

and procedure are disasters and that direct Congressional oversight, far in excess 

of what is currently in place, ought to be implemented. For too long the perception 

has been (and that perception has been shown to be a reality by the OIG Report) 

that NMFS is an antiquated and bloated bureaucracy, out of control and unaccountable to anyone including Congress. Hopefully, these hearings will be the beginning 

of Congress taking the necessary steps to rein this Agency in and bring relief to our 

nation’s suffering commercial seafood industry. 

At this juncture in this nation’s history, when so many of our fellow citizens are 

out of work and looking to government for assistance, it should be a national priority to make sure those who do have jobs and work hard each and every day to 

provide for their families, can go to work without fear of overzealous enforcement 

agencies or fear of reprisals when they make their concerns known to Congress and 

seek remedy. 

Thank you for this opportunity to address this committee. 

32 

*NMFS list of fixes for OIG recommendations. 

1. Subject to compliance with applicable labor relations requirements, institute 

higher level reviews of proposed charging decisions, penalties, permit sanctions, and settlements to ensure consistency and predictability and to avoid the 

appearance of arbitrary decision making. 

2. Institute a freeze on hiring criminal investigators until a work force analysis 

is done and approved by Dr. Lubchenco that will address the appropriate mix 

of criminal investigators and regulatory inspectors in the enforcement office. 

3. Shift oversight of the Civil Monetary Penalties Fund (also known as the Assets 

Forfeiture Fund), where penalties are accrued, from NOAA’s Fisheries Service 

to NOAA’s comptroller. 

4. Improve communications on enforcement issues, particularly in the Northeast. 

This will include actions that enhance understanding of fisheries regulations 

and transparency of enforcement actions 

5. Develop specific objectives and detailed plans for a summit on law enforcement 

practices to be held no later than June 30. The summit will provide a venue 

to develop forward thinking approaches and long-range policies for properly 

executing enforcement actions to protect living marine resources. 

NOAA will develop, by March 21, long-term strategies that: 

1. Improve data integrity and address inefficiencies of the management information systems used by the enforcement office and the enforcement attorneys, including using the Internet to increase transparency. 

2. Implement standardized procedures for setting enforcement priorities that will 

help ensure consistency among regions while addressing regional needs. Ensure NOAA leadership has input 

3. Strengthen enforcement attorney operating procedures, prosecution of charged 

cases, and settlement actions. This includes revising procedural regulations 

and penalty schedules for consistency and clarity. 

4. Implement an outreach strategy to improve relations with local fisheries communities and improve understanding of fisheries regulations and enforcement 

activities. This includes increasing rapport between NOAA and fishermen in 

order to improve communications and informal problem solving. 

5. Develop a plan to review law enforcement staffing and procedures with a focus 

on ensuring that criminal procedures are not applied to civil offenses. Development of the plan should include appropriate independent review. 

Mr. JONES. Madame Chairwoman, before I close, if it is proper, 

I would also like to put this in the record. It is a bumper sticker 

that is going all around the Third District of North Carolina, the 

home of commercial fishermen, that says, ‘‘National Marine Fishery Service: Destroying Fishermen and their Communities Since 

1976.’’ 

Ms. BORDALLO. No objection. So ordered. 

[NOTE: The bumper sticker submitted for the record has 

been retained in the Committee’s official files.] 

Mr. JONES. Thank you, Madame Chairwoman. I yield back. 

[The prepared statement of Mr. Jones follows:] 

Statement of The Honorable Walter B. Jones, a Representative in Congress 

from the State of North Carolina 

Madame Chairwoman, thank you for holding this hearing on NOAA Fisheries 

Law Enforcement Programs and Operations. This is an urgent issue, and I am very 

pleased the Subcommittee is examining it today. 

In January the Inspector General of the U.S. Department of Commerce released 

the findings of its 7-month investigation into NOAA Law Enforcement—the federal 

agency responsible for enforcing U.S. fisheries laws. That IG report came in response to requests made last year by the Massachusetts and North Carolina congressional delegations for an investigation into allegations of overzealous commercial fisheries enforcement by the agency; allegations frankly that I have heard for 

15 years and had tried to get the Inspector General’s office to look into before. 

Among other things, the Inspector General report found: 

• ‘‘...systemic nationwide issues adversely affecting NOAA’s ability to effectively 

carry out its mission of regulating the fishing industry. These issues have conVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
33 

tributed significantly to a highly-charged regulatory climate and dysfunctional 

relationship between NOAA and the fishing industry’’; 

• NOAA’s ‘‘civil penalty assessment process is arbitrary and unfair’’; 

• NOAA’s workforce composition is dramatically misaligned to its mission—‘‘only 

about 2 percent of its caseload has been criminal-investigative, yet over 90 percent of its enforcement personnel are criminal investigators—a clear imbalance’’; and, 

• NOAA’s Asset Forfeiture Fund—which contains proceeds from the civil penalties it collects—has a balance of $8.4 million as of December 31, 2009, but Department officials ‘‘are not aware of the fund’s having ever been audited’’, and 

‘‘the account under which they are maintained has weak internal controls’’ leading the IG to launch a pending ‘‘forensic review of the fund’’. 

Madame Chairwoman, the IG report confirmed what fishermen in North Carolina 

and across this nation have long known to be true: federal fisheries law enforcement 

is out of control, terribly mismanaged and needs a major overhaul. That is one of 

the reasons that last week an estimated 5,000 fishermen from around this country 

came to Capitol Hill to rally for relief from an agency that in their minds is working 

against them, not with them. 

I would like to make one more point that was not in the IG Report, but which 

needs to be stated. According to NOAA budget documents, since 1997 the number 

of fisheries enforcement personnel at the agency has grown by over 40%. But according to NOAA’s latest statistics on the state of the commercial fishing industry, from 

1997 to 2006 landings of fish in this country have dropped by 5%, and in my home 

state of North Carolina, landings have fallen over 66%. In short, we have more law 

enforcement officers policing a shrinking industry. Furthermore, when these statistics are viewed in light of this report, it seems clear that NOAA’s out of control law 

enforcement tactics have been at least partly responsible for chasing honest fishermen out of business. In these economic times, when unemployment is 10% and 

when over 80% of seafood consumed here is imported, America cannot afford to put 

more of its own citizens out of work, and cede more of our market to foreign producers like China. 

I hope the agency understands how serious this report is. Given the major problems the IG has identified, including serious discrepancies in enforcement, fines, 

and penalties, in the interest of fairness and transparency it seems appropriate to 

put a hold on active prosecutions of fishermen until the problems with NOAA’s Office for Law Enforcement and Office of General Counsel for Enforcement and Litigation are resolved. The North Carolina delegation has joined Chairman Frank and 

the Massachusetts delegation in asking NOAA to do this. And I hope the Chairwoman, and the Ranking Member, will join us in making sure the agency honors 

that request. 

In the meantime, I look forward to working with the Subcommittee and the agency to quickly reform the policies, procedures and personnel responsible for these 

problems. 

Ms. BORDALLO. I thank the gentleman from North Carolina, Mr. 

Jones, for his testimony. Now we have another of my colleagues, 

the congressman from the Fourth District of Massachusetts, Mr. 

Barney Frank. You can testify. 

STATEMENT OF HON. BARNEY FRANK, A REPRESENTATIVE IN 

CONGRESS FROM THE STATE OF MASSACHUSETTS 

Mr. FRANK. Thank you, Madame Chairwoman. I appreciate your 

accommodating Mr. Jones and myself. We were conducting some 

votes in the Finance Subcommittee, and I appreciate the Administrator and the Inspector General letting us impinge on their time. 

The Administrator and the Inspector General were both very generous with their time yesterday and came to a hearing in Massachusetts, the city of Gloucester, the home district of our colleague 

John Tierney at the hearing of the Government Affairs Committee. 

We should note that the Administrator was not the administrator 

when the great bulk of these problems took place, and we are enVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
34 

couraged by her looking into them, taking them seriously, and her 

commitment to go forward. 

I do think it is very clear that the approach that has been taken 

by NMFS over a long period has been unduly adversarial. There 

are fishermen who have violated the rules. There are a handful 

who should be seriously prosecuted who were plotting and planning 

to take actions that were illegal. The overwhelming majority of 

these violations are violations that come when a very complex set 

of regulations are imposed on very hardworking people who don’t 

always get to dot every I and cross every T. 

Also, as I note, we do have some real identification systems, but 

the lines that are painted on the highways don’t work quite as well 

on the ocean, and there is a degree of ambiguity there. So treating 

these fishermen as if they were criminals in every case of a violation or in most cases of a violation is clearly wrong. There has been 

an excess of that. I think the Inspector General’s point is very good 

one, that if you look at the nature of this task, which is a regulatory task, it is a law enforcement force overly weighted with 

criminal investigators as opposed to people doing more of the 

administrative work. 

And I will repeat myself, as we do in this business quite some 

time. I don’t want to put people out of work, so I do propose that 

some of the excess law enforcement that the National Marine and 

Fisheries Service will be having be sent over to the Securities and 

Exchange Commission, which appears to be under-enforcing. So 

maybe we can get a balance and shift some of the people. In other 

words, let us do less prosecution of fishing and more prosecution 

of ‘‘fishy,’’ which is what we have over there. 

So I do hope that we are going to see very serious remedial action. I want to say, when Mr. Jones talked about a moratorium, we 

are not talking about giving people a free pass. We are not talking 

about dismissing charges. We are saying given what has happened, 

it is a good idea to hold off until we can look at this. I spoke yesterday with the Administrator, and there are cases that the Inspector 

General brought; they are not huge in number. But there are some 

very disturbing examples that ought to be looked at. And we, the 

Federal Government, ought to be willing to admit we were wrong 

in some of these cases and either unduly punished people at all or 

punished them too harshly. 

So I hope we will see this move. Fishermen are not the enemies 

of fishing. I don’t know any fishermen who want to be the last people to do fishing. These are people who fish for a living, but they 

fish as part of a culture. In the city of New Bedford and the Town 

of Fairhaven that I represent, it is a very important part, not just 

of the economy, but of the whole social fabric of that community. 

These are people who do not want to fish out the oceans. There are 

some disagreements about how you do it, but they should be seen 

as cooperative. And it is especially the case that we will never 

have, given the vastness of the oceans, enough law enforcement 

people to make people comply with a set of rules that they could 

be unfairly done. 

So it is in everybody’s interest to promote a more cooperative 

spirit. I also believe that we in the Congress take some of the 

blame. I think the law that we passed in 2006, the renewal of the 

35 

Magnuson Act, created some of these problems. I think the law 

itself was too rigid. And because the rigidity is unsustainable, it 

has led to too much monkeying around with the rules and regulations. If there was more explicit flexibility, the regulations would 

not have to be as complex and as hard for everybody to deal with. 

So I hope this Committee will also be working with many of us. I 

know there is a large coalition of people who want to see the law 

amended, and we will make the job of everybody easier. 

So I appreciate this chance to testify. I thank the Administrator 

for the time she has given. I admire the good work done by the Inspector General. I believe working together, we can transform an 

angry situation into a much more cooperative one, in the mutual 

interests of the environment, the fishermen, and the economy. I 

thank you. 

Ms. BORDALLO. I thank my colleague, Mr. Frank from Massachusetts, for his advice and his words here this morning. I also would 

like to thank again my colleague, Mr. Jones and, of course, you are 

excused. We will continue on with the question period now of panel 

one. Thank you very much, gentlemen. 

My first two questions are for Mr. Zinser. Mr. Zinser, did Director Jones authorize the destruction of documents while the Office 

of Law Enforcement was under investigation? Yes or no. 

Mr. ZINSER. Yes, Chairwoman. 

Ms. BORDALLO. Was this action authorized by you or by NOAA? 

Mr. ZINSER. It was not authorized by me. And when I informed 

the NOAA leadership of what we found, they did not say that they 

authorized it either. 

Ms. BORDALLO. As an investigator, do you find it surprising that 

someone under investigation, who is also trained as an investigator, would think it appropriate to shred the files? 

Mr. ZINSER. Yes. I was surprised about it, and I guess what came 

to my mind, Chairwoman Bordallo, was I wonder what the Office 

of Law Enforcement would do if a fishing company that they were 

investigating had done the same thing during the course of their 

investigation. 

Ms. BORDALLO. How did you learn of this event? 

Mr. ZINSER. Well, we actually learned about it from an informant 

who called us. But the shredding had already occurred. We also coincidentally received an anonymous call the very day that it was 

happening, but it came into our hotline, and by the time that was 

processed, the shredding had been completed. 

Ms. BORDALLO. Once you did learn of it, I assume you spoke with 

Director Jones about it. What was his explanation? 

Mr. ZINSER. I did not speak to Director Jones personally. My 

staff spoke with him. In the summary of the discussion that I read, 

Mr. Jones indicated that they had been planning this type of record 

reduction for over a year, and that the timing was such that they 

had an opportunity to do it. And he expressed to my staff disbelief 

that anybody would be suspicious that such a shredding operation 

occurred. But we requested a list of files that had been destroyed. 

That was provided, and there were approximately between 170 and 

180 files, and all but about 40 of them had been destroyed. 

36 

Ms. BORDALLO. I thank you. I have a couple of questions for Dr. 

Lubchenco. Do you know the last time that office undertook such 

an effort, shredding documents? 

Dr. LUBCHENCO. I do not. 

Ms. BORDALLO. How about you, Mr. Zinser? 

Mr. ZINSER. No, Chairwoman. That is one of the things we are 

investigating, is what type of record retention schedule the Office 

for Law Enforcement follows, and that would be a key question in 

that. 

Ms. BORDALLO. Back to you, Dr. Lubchenco. I am sure you can 

understand that to some on the outside, the timing of this housecleaning would appear a little too coincidental and does not give 

the impression of an office that supports full disclosure of the facts. 

Is it appropriate to place Director Jones on administrative leave or 

temporarily replace him in the OLE pending the outcome of the investigation by the Inspector General? 

Dr. LUBCHENCO. Madame Chairwoman, I first learned of this 

shredding incident on Monday of this week. I was quite concerned. 

I do think that it does not look good. I almost immediately called 

the Inspector General to consult with him and ask if he thought 

it was appropriate for us to take any steps to initiate an investigation. He told me that his office was in the process of launching an 

investigation into this and that they would keep us apprised of 

those findings, and we will act accordingly once that investigation 

has come to completion. 

Ms. BORDALLO. So then in answer to my question about would 

it be appropriate to place Director Jones on administrative leave or 

temporarily replace him, would then your answer to that would be 

it depends on the investigation? Is that what you are telling us? 

Dr. LUBCHENCO. I explicitly asked the Inspector General if he 

would recommend any immediate personnel action, and he said 

that he thought it would be appropriate to do the investigation first 

and then take steps. 

Ms. BORDALLO. And, Mr. Zinser, how long do you think this investigation will take? 

Mr. ZINSER. I don’t think it will take that long. I think there are 

some key interviews we have to do. We have to look at their rules 

and procedures. I would imagine it would take within 30 days. 

Ms. BORDALLO. So then you will make your findings to—you will 

discuss this on the temporary replacement or—— 

Mr. ZINSER. Yes. What we generally do, or what I try to do, is 

as we do our work, as we do our investigations, and as we do our 

audits and evaluations, I try to keep the management informed of 

what we are finding, and I have committed to the Under Secretary 

that as we proceed, we will inform her of what we are finding. 

Ms. BORDALLO. All right. Thank you. I would like now to call on 

the Ranking Member, Mr. Cassidy, for any questions he may have. 

Mr. CASSIDY. Thank you. It seems like, Dr. Lubchenco, you came 

in at a bad time. It seems like you inherited a mess because it 

seems like your data systems not only for this are not good, but I 

am hearing from fishermen that your data systems for monitoring 

catch shares is not very strong either. But focusing upon this, can 

you just comment why the IG found this lack of data systems for 

either the Office of Law Enforcement or the NOAA General CounVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
37 

sel? I mean, was the previous group just totally kind of unaware 

of the issue? 

Dr. LUBCHENCO. Congressman, I can’t really speak to what was 

in place, or the rationale for what was in place before I came on 

board. I can tell you that it has been recognized for some time 

within NOAA that our mechanisms to track the flow of information 

concerning law enforcement cases has not been sufficient, and that 

for over a year now there has been in place steps to—there have 

been steps taken to put into place a better management system. It 

entails doing some new computer programming. I understand that 

there was an outside firm that was contracted to begin transferring 

our system over to this new system, and that that is in place. 

This is one of the many areas that I have asked my General 

Counsel and head of NOAA fisheries to pay special attention to and 

to make sure that we have the right kinds of tracking systems and 

the right kinds of oversight and checks and balances so that we can 

be on top of this situation from here on out. 

Mr. CASSIDY. Now again talking about the mess you received, I 

have a note before me that the Office of Law Enforcement made 

a similar report in 1998 regarding the relative mix of criminal investigators to I guess civil investigators. And 10 years later, it is 

still a problem. Any comment on why an apparently specific recommendation was not enforced? 

Dr. LUBCHENCO. Congressman, I don’t know the answer to that. 

We have committed to looking at what the response was to the 

1998 report and trying to understand better what changes were 

made and why they were not sufficient to address the issues that 

were raised. 

I do think it is relevant to note that NOAA agents and enforcement officers work closely with state law enforcement and state 

agents in their practices, and it is partnership with the state marine law enforcement officers and the U.S. Coast Guard. 

Mr. CASSIDY. Can I follow up with you about that? Because I 

spoke to folks from my state about that, and they think it is a good 

system. I gather that they are doing a fair amount of the enforcement in Louisiana. So one of their concerns was that apparently 

the appropriations started off as 17.5 million whenever the program began several years, and it is still 17.5 million, even though 

they have been asked to take on more and more of the law enforcement responsibilities, so I gather. Is there any hope to increase this 

assessment? Because if NOAA is having a problem, maybe the 

states can pick it up sort of thing. 

Dr. LUBCHENCO. Congressman, I don’t know the history of those 

funds, but I will look into that and get back to you. 

Mr. CASSIDY. Again, when I was reading the material, Mr. Inspector General, regarding Massachusetts, I wondered if maybe the 

reason that he didn’t find that much civil enforcement was because 

the state agencies were doing the civil enforcement, and they just 

kept the more criminal activity for the Federal agencies. I am just 

trying to be fair, trying to understand the situation in the context 

of what I learned from my state folks. Any comment on that? 

Mr. ZINSER. Yes, sir. First of all, the data systems are problematic, and it is hard to gather sufficient data on the types of cases, 

the types of violations, assessments. For example, the data systems 

38 

will not tell you how many permit sanctions have been issued or, 

for example, if they seize a catch and wind up auctioning off the 

catch, that data is not in the system. So the data is a problem. 

The data that we looked at did include state enforcement efforts 

because when the JEA partners find Federal violations, they will 

write them up and transfer those to the NOAA Office for Law Enforcement. We think the JEA program is a good program. We actually issued a report on it last year. Our recommendations there 

were that the Office for Law Enforcement needed to work closer 

with the JEA partners to make sure they knew what the JEA partners were doing, and that the Office for Law Enforcement probably 

needed to have some system for going out and doing like quality 

inspections for their JEA partners. But we did do a report on that 

last year, sir. 

Mr. CASSIDY. OK. Can I ask one follow-up question? Are the 

Joint Enforcement Agreements the same as the Cooperative Enforcement Agreements? 

Mr. ZINSER. I believe so, yes, sir. 

Mr. CASSIDY. OK. Thank you. 

Ms. BORDALLO. I thank the Ranking Member, Mr. Cassidy. Now 

I would like to call upon my colleague, Mrs. Shea-Porter, from New 

Hampshire. 

Ms. SHEA-PORTER. Thank you. Thank you both for being here. 

First I would like to associate myself with the comments of Congressman Frank. I come from New Hampshire, and what we have 

been hearing is very consistent with what the Congressman repeated. I am concerned about the lack of trust. 

I really appreciate the fact that you are here, Dr. Lubchenco, and 

I appreciate all of the work that you are doing right now. But it 

seems to me that they need an ombudsperson at this point. I know 

back in the 1990s, there was one for NOAA, and it was not a congressional decision. I believe it was an executive decision to have 

that position. But it does appear that they need somebody that 

they could turn to that they felt was an impartial person who could 

hear the stories, maybe help them stay on top of some of the regulations so that there wouldn’t be any of the resulting fines. 

So I wonder if you thought that would be a good idea, something 

that you could support. 

Dr. LUBCHENCO. Thank you, Congresswoman. That indeed was 

one of the suggestions in the Inspector General’s report, and it is 

one of many of the recommendations in the report that we are looking at very, very closely. I have asked my General Counsel and my 

Director of NOAA Fisheries to take the lead in preparing our response to the Inspector General’s recommendations. That is due on 

March 21. We are looking comprehensively at all of the recommendations in the IG report. That, in fact, is one of them. 

Ms. SHEA-PORTER. OK. Thank you. And also, because the level 

of tension is so high right now, everything that is said or done is 

suspect, and they don’t believe the science either, as you know. Are 

there any steps that you are taking to help work through that? 

Dr. LUBCHENCO. I am greatly concerned by the less-than-good relationship that we have with many fishermen, and agree that because of the economic situation right now, because of the need for 

closures that are driven by our requirements to fulfill the law, that 

39 

there are increasing tensions, if you will. I think that it is very important for us to make extraordinary efforts to be working closely 

with the fishermen to help explain the rationale for many of our 

decisions, to work with them as partners to try to identify some of 

the solutions to many of these challenges, and certainly to have 

confidence in the data that are being used. 

We are looking very carefully at how we might do a better job 

of that. It has only been highlighted by the Inspector General’s report. My Director of Fisheries, Eric Schwaab, will have primary responsibility for helping us craft a strategy to improve our relationships because I think that is—I mean, we should have good relationships. We should be partners. We have the same interests, and 

I would like to move us to a point where in fact that is the case. 

Ms. SHEA-PORTER. I am happy to hear that. I just would like to 

state for the record that we New Englanders that live along our 

coastline have saltwater in our veins. I know these men and 

women. They are a very proud, hardworking group of people. They 

have been by the sea for many, many years. They deeply care 

about the environment. They care about the quality and the quantity of the fish. And they really are honest and just trying to earn 

a living. There is a tension, you are right. But I would ask that we 

keep them, their families, and our traditions in mind. Thank you 

very much. I yield back. 

Ms. BORDALLO. I thank the gentlewoman from New Hampshire, 

Mrs. Shea-Porter. I do have a couple more questions for the two of 

you before we bring on the final panel. 

Mr. Zinser, what are the effects of having a nine criminal investigator to a one uniformed officer ratio in the OLE? 

Mr. ZINSER. Well, I would say there are probably two things. One 

is that you have a workforce of criminal investigators, and understandably they want to do criminal investigations. That is what 

they want to do for their career. And the statute, particularly 

Magnuson-Stevens, doesn’t have a lot of criminal provisions. So you 

have a criminal workforce who is basically assigned to do regulatory work. I don’t think that is proper. I think the criminal investigators ought to be assigned to do felonies and serious criminal investigations. 

The other impact is on the community. They should be able to 

know when NOAA comes and talks to them whether they are 

under regulatory inspection or under criminal investigation because those two operations are very different and have very different consequences. When a criminal investigator comes and talks 

to you, you could potentially wind up in jail. When a regulatory inspector comes and talks to you, you are going to get a regulatory 

infraction. That is the biggest difference in my mind. 

Ms. BORDALLO. Do they read them the rights when they are investigating to the people? I mean, that is a question I would have 

certainly. Like you said, when they talk to them, just one word 

may make a difference. 

Mr. ZINSER. Madame Chairwoman, a couple of the specific cases 

that we are following up on include allegations that members of the 

fishing industry have asked OLE agents, can I have an attorney, 

and the responses have been, it will only make it worse for you. 

Ms. BORDALLO. Oh, really? 

40 

Mr. ZINSER. That is the kind of thing we are following up on. 

Ms. BORDALLO. Thank you. Why do the U.S. Fish and Wildlife 

Service and the Environmental Protection Agency separate their 

civil and criminal law enforcement capacities? 

Mr. ZINSER. The practice of separating regulatory inspectors from 

criminal investigators is for the purpose that I just mentioned. The 

constitutional rights of the citizens are impacted by criminal investigators very seriously, and you can’t mix the two types of authority. Under regulatory authority, you must let the inspectors into 

your workplace because you are subject to their regulations. 

Ms. BORDALLO. Yes. I think my question would have been NOAA 

does not. 

Mr. ZINSER. Yes. 

Ms. BORDALLO. But U.S. Fish and Wildlife and EPA does. 

Mr. ZINSER. Yes. Most Federal enforcement agencies do. 

Ms. BORDALLO. I see. 

Mr. ZINSER. I believe the reason NOAA does not—and I think the 

explanation that we were provided is that having agents who have 

criminal investigative qualifications gives them more flexibility. 

They can do administrative cases, whereas if they were just administrative investigators, they wouldn’t have the qualification to do 

criminal investigations. So I think the leadership of NOAA thought 

that having criminal investigators gave them greater flexibility in 

terms of being able to do both kinds of cases. 

Ms. BORDALLO. In your opinion, if NOAA had heeded previous 

recommendations to enhance the participation of the Northeast industry and the fishery management process, would some current 

challenges have been addressed? 

Mr. ZINSER. Yes. I think that the steps that are being outlined 

now, if they had been taken earlier, would have helped. I still think 

that the people on the ground in the Northeast, the NOAA folks 

stationed there that work there every day, I think their work relies 

on strong personal relationships with members of the community. 

I think that aspect of it is going to be very difficult to fix. 

Ms. BORDALLO. Thank you. And now, Dr. Lubchenco, I would like 

to highlight several excerpts from the Inspector General’s report, 

and if you could tell me whether you agree or disagree with the Inspector General’s findings, and if not, why not. 

‘‘NOAA senior leadership needs to establish enforcement priorities that improve integration and coordination with its headquarters, fisheries management, and science center elements.’’ Do 

you agree? 

Dr. LUBCHENCO. I agree. 

Ms. BORDALLO. ‘‘The attorneys in NOAA, the General Counsel for 

Enforcement and Litigation, do not have an internal operations 

manual, and have broad discretion resulting in a process of determining civil penalty assessments that appear arbitrary because 

such decisions are at the sole discretion of individuals, and there 

is no higher level review.’’ 

Dr. LUBCHENCO. As far as I know, that is accurate. I know that 

that is what the Inspector General found. I don’t have any information to counter that. 

Ms. BORDALLO. Do you agree or disagree there is a need for 

greater consistency in the penalty schedule? 

41 

Dr. LUBCHENCO. I absolutely agree. 

Ms. BORDALLO. Are there no formal processes for documenting 

decisions regarding fine assessments and settlement amounts? 

Dr. LUBCHENCO. I think the processes that are currently in place 

are insufficient, and that is one of the areas I am committed to addressing. 

Ms. BORDALLO. Very good. Fishing laws and regulations are 

highly complex, making compliance difficult even with the best of 

intentions. 

Dr. LUBCHENCO. That is absolutely true. 

Ms. BORDALLO. All right. I want to thank you both for appearing 

today before the Committee. Now we will call on the third panel. 

[Pause] 

Ms. BORDALLO. The witnesses on this panel include Lieutenant 

Colonel Bruce Buckson, Deputy Director, Florida Fish and Wildlife 

Conservation Commission, Division of Law Enforcement; and Mr. 

James Walsh of Davis Wright Tremaine law offices. 

I would like first to welcome Lt. Colonel Buckson and thank him 

for appearing before the Subcommittee. And as I mentioned for the 

previous panel, I would note that the red timing light indicates 

that your time is concluded. But we will include your full statement for the record. 

Lieutenant Colonel Buckson, please proceed. 

STATEMENT OF LIEUTENANT COLONEL BRUCE BUCKSON, 

DEPUTY DIRECTOR, DIVISION OF LAW ENFORCEMENT, 

FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION 

Mr. BUCKSON. Thank you, Madame Chairwoman. I appreciate 

the opportunity to be able to address the Committee on this very 

important issue. I feel somewhat like a young man who is running 

up and down the sidelines of a game, and he is saying, put me in, 

coach, put me in, coach. And all of a sudden he is put in, and you 

come to find out that maybe he is not a team member. So I think 

that maybe some of the audience and the Committee members, it 

may help if I give a little bit of background on myself and also our 

agency, and clear up the appearance that maybe we aren’t team 

members, but we are actively involved in fisheries enforcement, 

both state and Federal. 

As I said, I am honored to be a part of this quest for excellence, 

and I hope my input about state perspective will be valuable to the 

Committee. Just a short introduction. As you said, I am Lieutenant 

Colonel Bruce Buckson with the Florida Fish and Wildlife Conservation Commission. And in the rest of the testimony, I will probably refer to that as FWC. It is a mouthful as the full name of the 

agency. 

I am a Deputy Director of the Division of Law Enforcement, and 

I am in my 28th year of my career with the agency and predecessor 

agency. I served as a law enforcement representative on marine 

fisheries commissions and fisheries management councils for approximately 12 years. Although I still interact with the law enforcement committees and advisory panels, the Florida seat on these 

boards is officially held by one of my section leaders. 

I have also served as the FWC law enforcement liaison to our 

Federal partners in the NOAA OLE Southeast region. In addition, 

42 

I currently sit on the NOAA OLE Joint Enforcement Agreement 

Advisory Committee. And I will refer to that as JEA in the future. 

I think my few moments here with this Committee would be best 

spent if I focus on the relationship with fisheries enforcement in 

the state and Federal partnership and the value of that, and a little bit of a description on what that means. The State of Florida 

has been a partner with NOAA OLE through a Cooperative Enforcement Agreement, a CEA, since May of 1984. That is the oldest 

agreement that I have a copy of, though there has been some mention that there was a previous agreement. So well over a quarter 

of a century we have been involved as partners for fisheries enforcement at the Federal level. 

This agreement, as well as those that followed, has been based 

on the premise that enforcement of all fisheries laws is in the best 

interest of not only the nation, but also the state. And further, it 

is based on the premise that there are state enforcement personnel 

that are fully trained and equipped and currently being used to enforce state fisheries regulations that could be great assets to the 

enforcement of Federal fisheries regulations. 

Currently, the FWC, the Division of Law Enforcement, has 721 

law enforcement positions. These are fully trained and equipped 

law enforcement professionals who patrol the woods and waters of 

the State of Florida. Over 500 of these law enforcement positions 

are frontline enforcement officers or investigators. Through our Cooperative Enforcement Agreement, the CEA, with NOAA OLE, 

each of these officers are provided training and authority to enforce 

select conservation regulations identified in the Cooperative Enforcement Agreement. 

Late in the 1990s, we entered into contracts with NOAA OLE, 

which was the first step in providing actual funding for fisheries 

enforcement at the Federal level. These contracts were somewhere 

in the range of probably 1996, -7 or -8, somewhere in that range. 

I don’t have the specific date. And this was one of the first times 

that we had an official way to get funding, Federal funding, for 

Federal fisheries enforcement. 

This was also the predecessor to what is called the Joint Enforcement Agreement, the JEA. The JEA is the funding mechanism, a 

vehicle to get funding to the states to do Federal fisheries enforcement, based on the foundation of a Cooperative Enforcement Agreement. A Cooperative Enforcement Agreement actually provides the 

authorization, the deputization, whatever term you want to use, to 

the states. The JEA is what gives some funding to the state partners. 

Through the CEA and the JEAs, the FWC—there are a lot of 

acronyms there. I feel much like a Federal employee now. Through 

the Cooperative Enforcement Agreement and the Joint Enforcement Agreement, our agency has been able to provide the use of 

approximately 500 patrol personnel for Federal fisheries regulations that may otherwise be outside of the fiscal realm of the 

NOAA OLE. These personnel for the most part are uniformed patrol officers. While these officers are not solely dedicated to enforcing Federal fisheries regulations, they have the ability and authority to address Federal violations when observed and, of course, 

when they are on targeted Federal fishery patrol hours. This is 

43 

clearly in the best interest of the conservation at the state and the 

Federal levels. 

One key point that I would like to make is a description of how 

we view the JEA, the agreement with the NOAA OLE. The state 

relationship with NOAA OLE is somewhat similar to what we 

might view as a local police department having a uniformed patrol 

officer in a detective squad. The patrol officers are the visible first 

responders to accidents, crimes, and calls for service. The detective 

squad handles in-depth investigations, covert operations that are 

normally less visible to the public. 

Conceptually, in the JEA or CEA, the state officers provide that 

patrol function, and the OLE provides the detective function. Obviously, there are necessary deviations from this concept with regard 

to specific cases, and quite often the egregious violations impacting 

state resources become joint investigations, where both agencies 

participate. However, the JEA concept strongly encourages the less 

egregious fisheries violations to be handled as state violations 

whenever possible. 

This patrol investigation or detective concept seems to be extremely effective with the Joint Enforcement Agreements with the 

states and territories that are participating. The downside, as it 

was noted in the IG report, may be that NOAA OLE agents are 

somewhat less visible, even though the enforcement objective is 

being met. It is also important to note that NOAA OLE agents 

have skills and expertise that go beyond the state jurisdictional 

boundaries, and sometimes even beyond the training and experience of some of our state officers. 

This has proven quite critical in addressing violations that have 

significantly impacted Florida’s fishing industry and resources. It is 

exampled by a NOAA OLE case involved a see-through dealer in 

the Florida Panhandle who over a period of time mislabeled hundreds of thousands of pounds of Vietnamese catfish as grouper. 

Grouper is a locally caught Florida fish, and very popular in fish 

markets and restaurants. This mislabeling was done to avoid paying tariffs on imported fish, but significantly impacted Florida fishers by undercutting the price of locally caught grouper. 

This mislabeling issue gained widespread media attention and 

prompted investigative reporting. Reporters obtained samples of 

grouper from many restaurants and had the samples analyzed, 

only to find they were not, in fact, grouper. This impacted Florida 

fishermen, wholesale dealers, retail dealers, restaurants and consumers. I believe this case helped restore consumer confidence in 

the industry. 

In trying to bring this to a close—and I apologize for going over 

the time limit—I think it is key that the successes to be able to 

be noted by the JEA and the Joint Enforcement Agreement and the 

relationship that we have with the NOAA OLE, it is a key to our 

success with resource protection. Thank you very much for the opportunity to be able to testify. 

[The prepared statement of Mr. Buckson follows:] 

Statement of Lieutenant Colonel Bruce Buckson, Deputy Director, Division 

of Law Enforcement, Florida Fish and Wildlife Conservation Commission, 

Tallahassee, Florida 

Chairwoman Madeline Z. Bordallo, 

44 

Thank you for the invitation to provide comments to the Subcommittee regarding 

the recommendations in the recent report from the Office of Inspector General (OIG) 

of the U.S. Department of Commerce regarding NOAA Fisheries Enforcement Programs and Operations (Final Report No. OIG-19887). I have provided a summary 

of my related personal experience in fish and wildlife law enforcement at the state 

level, specifically Florida, in a separate document. 

It is most appropriate to set the foundation of the testimony I am able to provide 

the Subcommittee through a brief introduction and historical background of Florida’s relationship with NOAA Office for Law Enforcement (OLE). I will address the 

OIG’s three primary concerns in reverse order. 

I am Lieutenant Colonel Bruce Buckson, Deputy Director of the Division of Law 

Enforcement (DLE), for the Florida Fish & Wildlife Conservation Commission 

(FWC). I am in my 28th year of my career with FWC DLE. I served as Florida’s 

law enforcement representative on Marine Fisheries Commissions and Fishery Management Councils for approximately 12 years. Though I still interact with the law 

enforcement committees and advisory panels, the Florida seat on these boards is officially held by one of my Section Leaders. I have also served as the FWC law enforcement liaison to our federal partners in the NOAA OLE Southeast Region. In 

addition, I currently sit on the NOAA OLE Joint Enforcement Agreement (JEA) Advisory Committee. 

NOAA needs to reassess its OLE workforce composition to determine if 

this criminal-enforcement-oriented structure is the most effective for accomplishing its primary regulatory mission— 

The State of Florida has partnered with NOAA OLE through a Cooperative Enforcement Agreement (CEA) since May of 1984, nearly 26 years. (Though it is believed there were agreements before this date, this is the oldest document available.) This agreement, as well as those that followed, are based on the premise that 

enforcement of fishery laws is in the best interest of the state and nation. Further, 

there are state enforcement personnel and equipment currently being used to enforce state fisheries regulations and these assets could be used to assist with ensuring compliance with federal fishery regulations as well. 

This overview serves well as a launching point to provide some views on the 

NOAA OLE workforce composition as it relates to criminal investigators and uniformed officers. The FWC DLE mission is to protect Florida’s natural resources and 

people through proactive and responsive law enforcement services. The FWC DLE 

mission is supportive of the Agency overall mission of ‘‘Managing fish and wildlife 

resources for their long-term wellbeing and the benefit of the people’’. Our law enforcement motto is ‘‘Patrol, Protect, Preserve’’. 

The FWC DLE currently has 721 sworn law enforcement positions. These are all 

fully trained and equipped law enforcement professionals who patrol the woods and 

waters of the State of Florida and adjacent federal waters. Over 500 of the these 

law enforcement positions are frontline enforcement officers or investigators. This 

number does not include supervisors, pilots and specialty investigators. Through our 

CEA with NOAA OLE each of these officers are provided training and authority to 

enforce select federal conservation regulations identified in the CEA. 

Since 2001 FWC has also had a Joint Enforcement Agreement (JEA) with NOAA 

OLE. The JEA builds on the foundation of the CEA’s authorization and serves as 

a mechanism to provide NOAA OLE state partners with some funding for federal 

fishery enforcement efforts. There are approximately 26 states and territories participating in the JEA program. The JEA also provides an operations plan that is 

cooperatively created with each state’s conservation enforcement agency and NOAA 

OLE. 

Through the JEA, the FWC provides over 500 patrol personnel for federal fishery 

regulations that may otherwise be outside of current fiscal constraints of NOAA 

OLE. The majority of these personnel are uniformed patrol officers. Though these 

officers are not solely dedicated to enforcing federal fishery regulations, they have 

the ability and authority to address federal violations when observed and during 

targeted federal fishery patrol hours. This is clearly in the best interest of conservation at the state and federal levels. 

The state relationship with NOAA OLE is analogous to a local Police Department’s uniformed Patrol Officers and Detective squad. The Patrol Officers are the 

visible first responders to accidents, crimes and calls for service. The Detective 

Squad handles in depth investigations, covert operations and are normally less visible to the public. Conceptually in a CEA / JEA with NOAA OLE, the state officers 

provide the Patrol function and NOAA OLE provides the Detective function. Obviously there are necessary deviations from this concept with regard to specific cases. 

Quite often egregious violations impacting state resources become joint investigaVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00048 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
45 

tions. However, the JEA concept strongly encourages the less egregious fishery violations be handled as a state violation when possible. 

This Patrol (State LE) and Investigation (NOAA OLE) concept is extremely effective and efficient. The downside may be that NOAA OLE agents are somewhat less 

visible, even though the enforcement objective is being met. 

The NOAA OLE agents have a skill set and expertise to go beyond the state jurisdictional boundaries and sometimes beyond the training and experience of the state 

officers. This has proven critical in addressing violations that have significantly impacted Florida’s fishing industry and resources. This is exampled by a NOAA OLE 

case involving a seafood dealer in the Florida Panhandle who mislabeled hundreds 

of thousands of pounds of Vietnamese catfish as grouper. Grouper is locally caught 

and a popular Florida fish for markets and restaurants. The mislabeling was done 

to avoid paying tariffs on the imported fish, but also significantly impacted Florida 

fishers by undercutting the price of locally caught grouper. The mislabeling issue 

gained widespread media attention and prompted investigative reporting. Reporters 

obtained samples of grouper from many restaurants and had the samples analyzed, 

only to find many of them were in fact not grouper. This impacted the Florida fishers, wholesale fish dealers, retail fish dealers, restaurants and consumers. Though 

this dealer was not the only participant in mislabeling fish, the case helped turn 

the tide for local fishers and restaurants. I believe this case helped restore consumer 

confidence with regard to grouper, as well as other species. 

Taking a criminal investigative approach to potential violations carries a higher 

standard of proof than civil violations. This serves primarily to protect the rights 

of those being investigated and ensure a quality investigation. As well, there is often 

a potential that an investigation of what begins as civil could lead to a criminal violation, in which case criminal investigative standards would need to be applied. 

To summarize these comments in the context of the recommendation to reassess 

the OLE workforce there are three points. 

1. There has been a clear value in having NOAA OLE investigators pursue some 

high profile and complex Florida cases. 

2. The state conservation law enforcement contingencies are well complimented 

by the investigators of NOAA OLE. The value of this increased visibility for 

federal fisheries enforcement may not have been fully considered. 

3. Possibly most important is the fact that there is a significant patrol function 

being accomplished by JEA partners. 

Though some of these issues are acknowledged in the OIG report, it is critical to 

consider all potential impacts of a drastic change in NOAA OLE workforce composition and must be based on current circumstances. 

My comments to this point have been directed toward the third recommendation, 

the reassessment of NOAA OLE workforce and specifically from a state law enforcement partner perspective with the benefit of two and half decades of experience. 

NOAA needs to strengthen policy guidance, procedures, and internal controls in its enforcement operations to address a common industry perception that its civil penalty assessment process is arbitrary and unfair— 

The second OIG recommendation is apparently being addressed through GCEL 

initiatives to promote transparency, help ensure fairness and open lines of communication with the regulated community. Relative to this recommendation, FWC has 

recently had discussions with GCEL regarding a more broad use of the summary 

settlement process for less significant federal cases made by state officers. 

NOAA senior leadership and headquarters elements need to establish 

substantially greater management and oversight of the agency’s regional 

enforcement operations— 

The final portion of my comments will be less specific and an attempt to provide 

useful input on what I am viewing as a ‘‘quest for excellence’’. My role as a state 

agency partner and not a specific subject of the OIG report makes taking this view 

easier than it might be for my federal partners. The comments are simply observations of challenges facing conservation agencies. As well, I don’t have the information to contest the accuracy of the OIG report, nor do I believe that is why I was 

invited to attend this hearing. The most important objective is to rebuild the public’s 

trust with regard to the mission of protecting the living marine resources and their 

habitats. 

From my observations there often seems to be a separation between law enforcement and the conservation managers and scientists within a conservation agency. 

This may be due to perceived differences in the mission of each group. Because of 

this it seems that law enforcement personnel in these agencies have often been 

viewed as ‘‘unique’’ or ‘‘outsiders’’ and sometimes simply a necessary evil within the 

agencies and by the public. Conservation managers and scientists are most interested in protecting the resources and less interested in how those protections are 

46 

implemented. The implementation of regulations is precisely what law enforcement 

divisions are responsible to accomplish. 

Quite often the law enforcement personnel themselves have unintentionally 

helped create and often perpetuated the assumption that they are different by inhibiting cross divisional interaction. As an example, I remember a time many years ago 

when the law enforcement offices of a conservation agency at the headquarters 

building were only accessible to law enforcement personnel. This restriction was implemented by only allowing the elevators to stop on the law enforcement floor with 

the use of a special key. 

Most interesting is that both law enforcement personnel and managers/scientists 

are headed toward the same goal post, conservation. Add to these somewhat differing viewpoints the impact both have on the stakeholders and there is potential 

for disharmony. We must also remember that most of the stakeholders are headed 

toward the same goal post as well. 

As a member of the Law Enforcement Committee (LEC) for the Atlantic States 

Marine Fisheries Commission (ASMFC) in the mid 1990’s, there was a continuing 

struggle for the LEC to become an integral part of the management process. It was 

clear that law enforcement was critical to the success of each fishery management 

plan, but input from the LEC in the planning process was not often requested. With 

the support of the Commission leadership, law enforcement personnel committed to 

participating in the fishery management boards, reporting the status of the fishery 

management plans and any enforcement concerns to the full LEC. Ultimately this 

information was provided to the full Commission. The ASMFC Strategic Plan was 

revised to include a specific goal to enhance law enforcement participation in the 

process. Today the law enforcement committee members are clearly a part of these 

management teams and the process. 

I expect there are many other examples of failures and successes in overcoming 

these pitfalls for multiple jurisdictions. As well, there are programs and specific action items that can assist in resolving the issues, but any successful program begins 

with understanding it is a ‘‘people’’ issue and may require some movement from 

comfort zones. 

I believe the Florida Fish & Wildlife Conservation Commission is doing a good job 

at working across Divisional and Sectional lines to further the agency mission. This 

requires a diligent effort. Recently, Colonel Jim Brown, the Director of the FWC Division of Law Enforcement, began meetings with other Division Directors to calibrate our enforcement priorities with their conservation priorities. I hope we find 

we are on track, but I expect we will find it necessary to tweak our operational 

plans. We have also planned to have similar meetings with our stakeholders around 

the state. This is designed to explain our mission, strategies and authorities while 

learning the needs and expectations of the stakeholders, ultimately building confidence through a transparent process. 

I hope these comments prove helpful in rebuilding the public trust in NOAA’s efforts to protect the nations living marine resources. 

Response to questions by Lt. Colonel Bruce Buckson 

Questions from Chairwoman Madeleine Z. Bordallo (D-GU) 

1. Could you expand upon your discussions with General Counsel for Enforcement and Litigation regarding a more broad use of the summary 

settlement process for less significant federal cases made by state officers? 

The Summary Settlement process is analogous to a traffic fine schedule. It sets 

clear parameters based on specific violations, which are then addressed by a specific 

penalty amount. These fines can be applied and options explained onsite which 

tends to be a good enforcement tool for both the Officer and the Recipient of the 

citation when dealing with recreational violators, lesser violations or violations that 

do not need further investigation. 

FWC currently utilizes the Summary Settlement system while enforcing most violations inside the Florida Keys National Marine Sanctuary (FKNMS). This system 

has worked very well inside the FKNMS and we have been in negotiations with 

GCEL to try and employ this enforcement tool in the rest of our federal enforcement 

area of responsibility. 

47 

Questions from Republican Members 

1. Are state law enforcement officials allowed, under the Joint Enforcement Agreements, to levy Federal fines or penalties? If so, what kind of 

guidance are they given on how to set these fines or penalties? If not, 

how are law enforcement actions taken by state officials under these 

agreements? 

Under the JEA Agreement, we do not levy fines or penalties. That is the responsibility of the Southeast Region Office of General Council for Enforcement and Litigation (GCEL). FWC currently utilizes three different methods of enforcement as it 

relates to Federal fisheries enforcement. 

The first type is: Written Warnings—this provides a method of documentation for 

all parties involved and generally serves as a correction notice for the recipient. This 

most often is employed with lesser violations or when the Officer’s discretion determines that this is the most appropriate form to generate compliance. 

The second type is: State Citation—which is used per the JEA for State Law violations that are detected during the course of Federal Fisheries patrols. We are additionally encouraged to handle most recreational cases with state enforcement practices that can be addressed by either state or federal charges. 

The third type: Federal Citation—which is used for federal cases that follow 

NOAA guidelines for processing. These cases are documented on NOAA approved 

FWC forms following a NOAA procedural checklist provided by GCEL to ensure all 

pertinent information is provided in order to proceed with either a follow-up investigation or prosecution. No fine or penalty is levied by the state during interaction 

with the recipient. 

2. How has NOAA funding for Joint Enforcement Agreements changed in 

the last ten years? Are the funding levels adequate for the responsibilities that NOAA would like you to fulfill? 

With the passage of the Magnuson-Stevens Reauthorization Act in 2007, forty-five 

(45) states, territories, commonwealths and U.S. possessions became eligible to participate in the Cooperative Enforcement Program (CEP). Within the CEP, OLE currently has JEAs with twenty-seven (27) states, territories, and commonwealths. The 

primary goal of the agreements is to enhance enforcement of Federal laws and regulations. With that said, funding for the JEA Program has roughly stayed the same 

for the last 9 years remaining around the 14 million dollar mark and is overdue 

to be reviewed for increase. There are multitudes of criteria that support an increase in funding starting with increased operational cost for personnel and equipment. With increased population come increased demands on the shared living resources which are in need of protection. This creates a need for an increase in patrols, equipment and personnel. Any program that remains relatively level funded 

for more than a couple years falls behind quickly due to an ever increasing inflation 

rate as measured by the Consumer Price Index (CPI). In the case of the JEAs, the 

current funding in 2009 dollars should be around $21.5M just to remain equal. The 

2001 funding, in 2009 dollars, is only worth $14.5M or has eroded by roughly 17% 

due to inflation. Please see the attached letters from the Gulf States Marine Fisheries Commission (GSMFC). 

The demands that are put forth by the MSA to end overfishing have challenged 

law enforcement entities to keep up with the Fishery Management Councils attempts to comply with aggressive management deadlines. The implementation of 

closed and restricted areas (MPAs, HAPCs, Reserves, Preserves, Sanctuaries, Closures, Parks, Experimental Areas, Etc.) has come without any resources to assist 

with the enforceability of these closures. The ‘‘Protection’’ aspect has to be generated 

by a cooperative effort of law enforcement and other related staff. This is accomplished through patrol efforts that emphasize education and community oriented policing, in hopes that there will be compliance with these closures. Florida has over 

170,000 square nautical miles of closures that range out to 200 nautical miles off 

the Florida coast. This is prior to implementing the most recent closure off the Atlantic coast of Florida. 

At least 1 Federal Reserve, 1 Habitat Area of Particular Concern (HAPC), 4 Marine Protected Areas (MPA) and many other restrictions and closures including an 

almost entire closure of the east coast waters for snapper and grouper have been 

created off the Florida coast since the inception of the JEA Program in 2001. This 

has come with no increase in funding for enforcement. 

The South Atlantic MPAs which include the ‘‘North Florida, St. Lucie Hump and 

East Hump’’, receive no specific funding for Law Enforcement. Law Enforcement 

was involved in the process of creation of the MPAs for approximately 10 years and 

stressed the need for additional funding to create support and accountability of 

48 

these MPAs. In an effort to level expectations of the Council, managers and stakeholders, the Law Enforcement Advisory Panel (LEAP) rated their ability to enforce 

the new MPAs. For example, the ‘‘North Florida’’ MPA is approximately 65 miles 

offshore to the closest edge and FWC currently has no available asset or staff funded in the area to support this mission. 

Though I have cited examples specific to Florida waters and adjacent federal 

waters, some of the regulations similarly impact other South Atlantic coastal states. 

These are clear indications of a need to increase the JEA funding to address the 

ever changing demands to protect our shared living resources. As well, recurring 

funding is critical to the state’s long term commitment to add positions and equipment for federal fisheries enforcement. 

3. Does the State of Florida have a data management system to track fisheries law enforcement actions taken at the state level? If so, do you also 

track actions taken under Federal statutes under the Joint Enforcement 

Agreement? 

Yes, FWC has a data management system that captures all citations and warnings, and can extract the citations and warnings that are written under Federal 

statutes. This is an in-house system that is easily modified. In the last year it was 

modified to better capture federal fisheries data. 

FWC also created a specific database that captures all JEA related hours, vessels 

encountered, boat captains, type of patrols, enforcement actions taken, etc. 

4. How much coordination is there between the NOAA Office of Law Enforcement and the state law enforcement programs? 

There is a substantial amount of coordination between NOAA OLE in the following areas: National Level—JEA meetings, VMS Meetings, Regular Conference 

Calls, JEA Advisory Committee; Regional Level—Southeast Region Meetings with 

the impacted states in order to discuss concerns, intelligence, etc. and Regional 

Leadership meetings between the states and NOAA staff; State Level—Meetings to 

discuss the continuity between state and federal priorities. NOAA agents assist with 

overall state level training for recruits and assist regions with training issues who 

are affected by law changes or need additional training concerns met. NOAA agents 

are invited to many regional and local meetings. 

5. You note that rebuilding trust is the ‘‘most important objective’’ with regard to protecting living marine resources. Have you looked at the items 

that NOAA has announced in response to the IG report and do you think 

these will be satisfactory to rebuild trust? 

I have reviewed NOAA’s response to the OIG report (10 items—February 3, 

2010—Memorandum from Under Secretary Lubchenco to NOAA General Counsel 

Schiffer). These items are foundational in beginning the process of rebuilding trust. 

The memorandum is thoughtful and strategic. It addresses five critical issues addressed in the OIG report and establishes immediate actions to mitigate continued 

criticism. The final five actions are planning items for long term solutions. There 

has since been a detailed follow up memorandum from NOAA General Counsel 

Schiffer to Dr. Lubchenco outlining the schedule of action plans. 

The plans outlined recognize the critical need for transparency in all processes. 

It is also clear that the plans provide for another critical component in regaining 

trust by providing for interaction within NOAA as well as external stakeholders. 

6. You note that the State of Florida calibrates enforcement priorities with 

the State’s conservation priorities. This seems to be a fairly commonsense thing to do. Do you have any insights into why NOAA does not appear to do this as well? 

NOAA is a large and diverse agency and most of my interaction has been with 

the Office of Law Enforcement (OLE). Therefore, it would be presumptuous and misleading for me to assume I knew all of the inner workings and actions within 

NOAA. I can provide some general thoughts based on experiences within the Florida 

Fish & Wildlife Conservation Commission (FWC). 

Ordering priorities is a constant challenge and dynamic. This moving target can 

only be kept on the radar screen through frequent validation from internal and external stakeholders. FWC has attempted to incorporate law enforcement staff and 

biological staff both at the Head Quarters and regional office levels. This provides 

opportunity to share and incorporate ideas across organizational lines and develop 

relationships. FWC incorporates the respective affected divisions to attend meetings, 

discussions and planning events in order to be part of the decision making process 

to ensure all aspects of change are entertained and levied in the best overall interest of our respective conservation priorities. This supplements the LE mission and 

49 

assists with gaining compliance and creating effective regulations. It is critical to 

maintain internal connectivity before building external relationships. 

It should be noted that the follow up memorandum from NOAA General Counsel 

Schiffer to Dr. Lubchenco outlines a process to develop priorities. 

CLOSING: 

Once again, thank you for the opportunity to provide input on this important 

issue. I hope you find my comments beneficial to the process. Compliance with federal fishery regulations is important to state fisheries and harvesters. The state/federal partnership for enforcement of fishery regulations is an integral component in 

gaining compliance with these regulations and therefore critical to the fisheries. The 

fisheries are clearly shared marine resources. As a representative from an active 

state partner and a member of several committees, which include other state representatives, I can say that the states would like to be a part of the solution and 

offer any assistance we may be able to provide. 

[The letter from the Gulf States Marine Fisheries Commission follows:] 

March 29, 2010 

The Honorable Gary Locke 

United States Secretary of Commerce 

1401 Constitution Avenue, NW 

Washington, D.C. 20230 

Dear Mr. Secretary: 

I am the Executive Director of the Gulf States Marine Fisheries Commission 

(Commission) and I am writing on behalf of the Commission and our five partner 

states, to support the continuation of the authorization and appropriations, specifically for the NOAA Cooperative Enforcement Initiative for Joint Enforcement Agreements (JEAs) between NOAA’s Office of Law Enforcement (OLE) and the Gulf 

States. 

All five of the Gulf of Mexico state marine agencies participate in the JEA program which serves as the mechanism to provide the region with funding for federal 

fishery enforcement efforts. The JEAs are one of the most successful partnership 

programs currently in existence between NMFS and state agencies, providing an ’operations plan’ that is cooperatively created with each state’s conservation enforcement agency and NOAA OLE. The JEAs have led to significant progress in creating 

uniform enforcement databases, identifying regional and local fishery enforcement 

priorities, and extending coordination to other areas, such as investigations. 

The Commission has an active Law Enforcement Committee which plays an integral part in addressing our regional objectives. The five Gulf States, NOAA OLE, 

and the U.S. Coast Guard are represented on the committee, and representatives 

from NOAA General Counsel and the U.S. Fish and Wildlife Service also contribute 

on a regular basis. The funds provided for cooperative law enforcement agreements 

have, and will, improve efforts to protect, conserve, and manage our living marine 

resources. 

The recent report from the Office of Inspector General (OIG) of the U.S. Department of Commerce regarding NOAA Fisheries Enforcement Programs and Operations (Final’ Report No. OIG-19887) highlights a number of problems and perceived 

problems internal to NOAA OLE, specifically in the Northeast. That report only provides a brief mention of the importance the JEAs play in the ability for NOAA OLE 

to conduct its investigations in that region and across the nation. 

‘‘One effect of OLE’s current workforce composition, according to individuals 

from the industry and OLE with whom we spoke, is that its criminal investigators do not spend significant time on the docks, with dealers, or in fish 

houses, relying instead largely on officers from Joint Enforcement Agreement 15 agencies, thereby reducing OLE’s overall visibility and routine 

interaction with the regulated industry. This can contribute to misunderstanding and increased tension within the current enforcement climate.’’ 

Final Report No. OIG-19887, Page 18. 

Taken on the surface, the OIG report suggests a NOAA OLE bias toward criminal 

and high dollars infractions over uniformed agent and misdemeanor cases which are 

being handled by the states. When viewed in the context of the JEAs, there is a 

logical division of effort between the large federal cases, characterized by the OIG, 

and the smaller cases handled by the JEA partners. It is clear that the OIG report 

did not fully integrate the JEA program advantages and contributions within the 

federal program. 

50 

In the recent House of Representatives Committee on Natural Resources oversight 

hearing on ‘‘Setting the Bar for Accountability: Improving NOAA Fisheries Law Enforcement Programs and Operations’’, Lieutenant Colonel Bruce Buckson (Deputy 

Director of the Division of Law Enforcement for the Florida Fish & Wildlife Conservation Commission) testified to the value of the JEAs in federal enforcement. He 

suggested that: 

‘‘the state relationship with NOAA OLE is analogous to a local Police Department’s uniformed Patrol Officers and Detective squad. The Patrol Officers are the visible first responders to accidents, crimes and calls for service. The Detective Squad handles in depth investigations, covert operations 

and are normally less visible to the public. Conceptually in a [JEA] with 

NOAA OLE, the state officers provide the Patrol function and NOAA OLE 

provides the Detective function. Obviously there are necessary deviations 

from this concept with regard to specific cases. Quite often egregious violations impacting state resources become joint investigations. However, the 

JEA concept strongly encourages the less egregious fishery violations be 

handled as a state violation when possible.’’ February 26, 2010 

The Commission fully supports efforts to increase funding of the JEAs to adequately provide resources which the states’ enforcement agencies expend toward fulfilling federal initiatives. In addition, it has been brought to our attention that cost 

of operating the JEAs at the state level has increased since its creation in 2001 and 

funding, like many programs, has not kept up with the current U.S. and world economy. Any program that remains relatively level funded for more than a couple years 

falls behind quickly. In the case of the JEAs, the current funding in 2009 dollars 

should be around $18.2M just to remain equal. The current funding, in 2009 dollars, 

is only worth $12.4M or has eroded by roughly 17% due to inflation. We would like 

to formally request additional funds be provided to the JEA program, increasing it 

from $15 million to $30 million nationally. We all understand the hard times our 

current market economy is facing, but the work remains to be done in both homeland security and marine fisheries. The JEA program is being asked to complete 

more work at higher operating costs with less resources. 

Thank you in advance for your consideration and if you have any questions or 

would like additional information, please do not hesitate to contact me. 

Larry E. Simpson 

Executive Director 

Gulf States Marine Fisheries Commission 

cc: Dr. Jane Lubchenco, NOAA Administrator 

Dr. Eric Schwaab, NOAA Assistant Administrator for Fisheries 

Chief Dale Jones, OLE 

Gulf Congressional Delegation 

Dr. Roy Crabtree 

Dr. Bonnie Ponwith 

C & P et al. 

LEC/LEAP 

Ms. BORDALLO. You are welcome, Colonel Buckson, for your 

input and testimony, and we will have questions for you later. Now 

I would like to recognize Mr. Walsh. It is a pleasure to welcome 

you, and you can begin your testimony. 

STATEMENT OF JAMES P. WALSH, PARTNER, 

DAVIS WRIGHT TREMAINE LLP 

Mr. WALSH. Thank you, Madame Chair. It is a pleasure to be 

back before you again. As indicated in my testimony, I have a 

somewhat unique experience since I helped draft the Magnuson 

Act, and probably am to blame for the enforcement provisions 

which were borrowed mostly from other statutes, and probably 

were not as complete as should have been prepared at the time. 

But we had other things on our mind. 

In addition, I was the deputy administrator of NOAA, and I was 

responsible for overseeing the General Counsel’s Office and for enVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
51 

forcement cases. In private practice, I am a litigator, a trial lawyer, 

and I represent companies that have been charged both with civil 

penalties and with civil forfeitures. And in my case that I mentioned in my testimony in Guam, the captain of that boat was 

charged with a crime. 

The message that I believe the OIG clearly sent in 1998, and 

again most recently, is it can be broken down fairly simply at the 

management level. The message is NOAA management be a client. 

What does that mean? Well, for lawyers it means that when you 

are in law school, you are told a very basic principle, and I think 

it is also true in real life, and that is if you represent yourself, you 

have a fool for a client. You should have a client. I can’t act without a client. Today, I am acting without a client; I am acting on 

my own behalf. If you do not have somebody in the civil penalty 

system for you to go to and say, regional director, or whoever is 

heading fishery enforcement in the region, I want to bring a penalty case against so-and-so, and I want to charge the following penalty. Should I do so? Now the problem that the OIG has identified 

very directly—and Dr. Lubchenco has just admitted—is that the investigators and the enforcement lawyers operate on their own, 

sometimes apparently without a client. They basically have operated apart from other lawyers in NOAA. They operate apart from 

the management. 

Again, there are reasons for this. I will personally take some 

blame because originally at NOAA we crafted the delegations of authority. We debated the issue as to whether the NOAA regional administrator should have some say over the setting of a penalty. 

And what happened is that we debated this issue, and felt that no, 

that might be too risky, or what might happen is that fishery enforcement cases would be brought solely on the basis of politics, or 

would not be brought solely on the basis of politics, an issue which 

everyone should be familiar with—with regard to the appointment 

of U.S. attorneys. 

But I think what has happened is it has gone too far now. The 

delegations of authority should be looked at in the continuing review by NOAA because those delegations are important. All the 

people who should make the decision as to whether a case should 

be brought or not don’t ever get together. So you have a situation 

where somebody says, well, you have violated a quota. But you 

have to have somebody from the management side that agrees with 

that. 

I think that is one very, very important issue, and I hope that— 

and it sounds like they are going to address it. Another issue which 

I don’t think is going to be solved by what Dr. Lubchenco has proposed—and that is the whole problem of the civil penalty schedule. 

Many of us, including those of us that worked at NOAA, have been 

somewhat dismayed by representing clients in the civil penalty 

process. The civil penalty lawyers wrote the rules. They, of course, 

select the penalties. They garner the evidence. NOAA hires the 

ALJs, although there are Coast Guard ALJs, and they are considered independent. Then, of course, they have almost exclusive authority to settle. 

So when you go before a civil penalty proceeding, it is not like 

going into Federal District Court. You basically have a choice, pay 

52 

the penalty or try the case. If I go to Federal District Court, my 

case will go before one or two or even three dispute settlers to try 

to get it resolved before there is a trial, whereas the fisherman is 

offered a choice: pay the penalty or settle it, or suffer the consequences of going to trial. A trial is expensive. Most people settle 

and pay. I think they are going to have to review the civil penalty 

proceedings and the procedures, and they are probably going to 

have to subject them, I think, to a new rulemaking. And I think 

they ought to get experienced legal practitioners, although they 

probably won’t like that—it makes it a little more difficult for 

them—and experienced Federal judges to help them craft rules 

that are more fair. 

In the end, the biggest issue, of course, is the setting of the penalty. I can verify what the OIG has found, and a NOAA attorney 

does it. But it is even worse than they described it because what 

happens is that the penalty is selected; the NOAA attorney tells 

the administrative law judge, here is my penalty, and doesn’t say 

anything more than, here is my penalty. And then I would move, 

for example, and say, well, all right, I want to depose someone or 

I want evidence for the basis of that penalty. And the lawyer says, 

well, I decided it, and you can’t depose me because of the attorneyclient privilege. 

There is no question in my mind that that process—and I have 

to say, I have come to it recently to look at it more closely—it is 

just basically unconstitutional. There is no authority, in my opinion, for a charged party not to be able to discover the basis for a 

penalty. What are the facts? What are the judgments? 

So in the end, I think those things need to be changed, and they 

probably can be changed very clear. I also have some suggestions 

for, I think—we need to change the law. We need to look at more 

robust enforcement provisions, say, in the Clean Water Act, which 

have been well thought out. 

Let me conclude about whether this is a problem that is just 

within NOAA. It is not. These problems find themselves into Federal District Court either in criminal proceedings or civil penalty 

proceedings because, quite frankly, sometimes the NOAA attorneys—I mean, excuse me, the NOAA criminal enforcement agents 

really aren’t very well trained, it would appear. I think that the 

case I cited in my testimony about Mr. Hayashi, where the Ninth 

Circuit Court of Appeals, which is generally considered fairly liberal, stated that—reversed the case. A criminal conviction of this 

man who shot at dolphins in order to scare them away from his 

fish. He didn’t shoot at them; he shot away. And he was indicted, 

indicted basically on his own cooperative testimony. He was then 

tried before a magistrate judge, convicted, appealed to a full judge, 

an Article III judge. The conviction was then confirmed. It went to 

the Ninth Circuit, and the Ninth Circuit said, more or less in nice 

judicial language, how could you guys be so stupid to have done 

that. 

This is rather stunning. And for Mr. Hayashi, he had a criminal 

charge hanging over his head for three years. He had to defend it. 

He had to use his own resources. You wonder how—I mean, the 

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53 

understanding of clear statutory and regulatory commands. And 

the court is saying, why did you do this? 

In my case in Guam, even though we settled fairly—and I know 

that my client, the Marshall Islands Fishing Company, was very 

happy with the settlement, and we were appearing before a fine 

judge in Guam. They arrested the vessel near Baker and Howland 

Island. It was a long way from Guam a few days. They arrested 

the vessel. Of course, at that point, the Coast Guard is escorting 

the vessel back to Guam, which takes seven days. And a NOAA enforcement agent comes on board the vessel and starts interrogating 

the captain. 

Now the question came up with Mr. Zinser with regard to when 

do you issue a Miranda warning. Well, you don’t necessarily have 

to issue a Miranda warning, and every criminal investigator knows 

this rule, unless the individual is a target or is put in a situation 

where he is not free to leave. So in the case of the Marshall Islands 

Fishing Company, the captain was, of course, not free to leave. The 

Coast Guard was taking him back to Guam for the vessel to be 

bonded. And by the way, he was later charged with a crime. 

So I deposed the NMFS investigator, and I said, well, you know, 

what was it about the fact that he was on this boat that led you 

to believe that you didn’t have to give him a Miranda warning. 

Why didn’t you tell him he had a right to talk to a lawyer? He 

wasn’t going anywhere. The Coast Guard had arrested the vessel. 

And he looked at me with a stunned look on his face as if he had 

never been trained as a criminal investigator. 

Then the captain—we put up a bond. The boat was released. And 

this I think is also the U.S. Attorney at work. And we brought the 

captain back after the vessel was released, put up a bond. He was 

deposed for the civil forfeiture case. He went to the airport, and he 

was arrested. The captain was arrested. And so, again we 

scratched our heads and said, ‘‘Well, why did you arrest the captain?’’ And they would say, well, there is evidence in the file that 

he didn’t stop right away when the Coast Guard vessel in the middle of the ocean—which, by the way, was a buoy tender and not 

a cutter—why he didn’t stop right away. And he, you know, basically was confused. So they charged him with a crime under the 

Magnuson Act for failure to stop, which is a misdemeanor. 

We then filed a habeas corpus petition, saying, how could you 

possibly do this because, under customary international law, there 

are five Law of the Sea Treaty tribunal decisions stating that, 

under international law, once a fishing vessel has been seized in 

U.S. waters and a bond posted, the crew must go free. You can’t 

arrest them for this crime. 

So they scratched their head, and they admitted maybe they 

couldn’t, and they let him go. But then they announced they were 

going to—and they did—convene a grand jury and indicted him 

under the terrorism laws for a felony, for failure to stop. And that 

warrant for his arrest is still outstanding. And you have to ask 

yourself, is there anybody who can sit down with these cases and 

give them a real world vetting to say, do we really have to do this. 

Do we really have to go this far? And in some cases, you will. But 

in those cases, like Mr. Hayashi’s, you should never have gone that 

far. 

54 

And the new General Counsel at NOAA is a very highly skilled 

Justice Department attorney, and I am sure she is going to get on 

top of these things. But you are going to have to find a way to get 

to the individuals who are there now to change the way they are 

doing business and their attitude. And they can do a lot better. I 

think many of them want to do a lot better because I don’t believe 

the kind of problems we see in New England are necessarily in the 

other parts of the country, but they crop up now and again. And 

I tend to have, you know, the larger cases, some of the more complicated cases, and they are just as difficult, and they are just as 

expensive, and I see the same things that are happening in New 

England. And I am glad that you are paying attention to it and 

that you are pressing for some resolution. And I thank you for the 

chance to testify again. 

[The prepared statement of Mr. Walsh follows:] 

Statement of James P. Walsh, Partner, Davis Wright Tremaine LLP 

Chairwoman Madeleine Bordallo and Members of the Subcommittee: 

Thank you for the opportunity to testify this afternoon on the important questions 

surrounding enforcement of our nation’s marine resource laws and regulations by 

the National Oceanic and Atmospheric Administration (NOAA). My name is James 

P. Walsh and I am a partner in the law firm of Davis Wright Tremaine LLP, based 

in its San Francisco, California office. I am essentially a litigator, mostly in federal 

courts, but I also act as defense counsel in civil penalty proceedings and in an occasional criminal case. My litigation practice has been split roughly fifty-fifty between 

oil spill cases, where our firm represents those injured by oil contamination, and 

natural resources and business matters where we represent, among other clients, 

many in the fishing industry, primarily on the West Coast and in the Pacific. Recently, I defended the Marshall Islands Fishing Company, owned in part by the 

Government of the Marshall Islands, in a fishing vessel civil forfeiture case in Federal District Court in Guam, a case that was settled just before trial last May. I 

am also a member of the firm’s Quality Assurance Committee and regularly provide 

advice to my colleagues on ethics and competence issues. I am not speaking on behalf of any client at this hearing today and the views I offer are purely my own. 

Framing the Issues 

I believe this is a very opportune moment for Congress to closely examine federal 

fishery enforcement practices. Today, I would like to address three issues with the 

Subcommittee: (1) the need for reform in the way NOAA internally manages its fishery enforcement cases; (2) the need to change in several important respects the 

manner in which administrative penalty cases are handled, in particular under the 

civil procedure regulations found at 15 C.F.R. Part 904; and (3) possible amendments to the enforcement provisions of the Magnuson-Stevens Act. I believe reforms 

at all three levels are needed to bring about a greater perception of fairness and 

balance to the NOAA enforcement process and to more strongly inculcate due process principles in the enforcement program at NOAA. Overall, my sense is that the 

lawyers and investigators at the agency are dedicated and well-meaning but, because of lack of management oversight and accountability and an absence of the 

strong advocacy that brings balance in our judicial system, the NOAA enforcement 

program has developed a kind of ‘‘tunnel-vision’’ about what is important and what 

is fair. 

The bottom line is that fishery enforcement will always be primarily reliant on 

self-regulation and compliance. Punishing transgressions will definitely, in the right 

circumstances, be needed, and will often be welcomed by others in the same fishery. 

But heavy-handedness by enforcement officials can backfire, particularly in many of 

our fisheries where the regulations have become so incredibly complex and economic 

circumstances so stressful. I strongly believe that the basic fairness and due process 

principles I speak about today are not the domain of any political party or any public or private interest group, but are recognized and shared by all of us. Moreover, 

the enforcement problems at the agency cannot simply be approached as an academic or ideological issue. Practical solutions can and should be found. 

Concerns about the NOAA enforcement have been brewing for some time. Many 

in the fishing industry have long grumbled about fishery enforcement practices, but 

most have remained silent and paid their fines. But, ironically, it was the U.S. DeVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
55 

partment of Commerce’s Office of Inspector General (OIG) that in September 1998 

first identified serious management problems in the law enforcement program 

(Audit Report No. STL-9835-8-0001). The OIG found that leadership from the National Marine Fisheries Service (NMFS) was urgently needed to provide the Office 

of Law Enforcement with more specific policy guidance to assist it in addressing its 

goals and objectives and allocating its resources. NOAA management at the time 

apparently agreed with this and other recommendations. As the more recent OIG 

Report (Review of NOAA Fisheries Enforcement Programs and Operations; No. OIG19887; January 2010) indicates, the problems have only gotten worse. 

My Background and Experience 

Let me provide some further background so that the Subcommittee can understand my perspective. In 1972, I was hired by Senator Warren G. Magnuson as staff 

counsel to Subcommittee on Oceanography of the U.S. Senate Committee on Commerce, Science and Transportation and later served as the Committee’s General 

Counsel. I was also one of the initial staff members of the Senate’s National Ocean 

Policy Study. Senator Magnuson tasked the staff of the Committee to implement 

ocean program recommendations by the 1969 Stratton Commission on Marine 

Science, Engineering and Resources. From 1972 until 1977, I was responsible for 

staffing the enactment each year of between 10-15 new laws, or major amendments 

to existing laws, which, among others, included the Marine Mammal Protection Act, 

the Endangered Species Act, the Coastal Zone Management Act, various fishery 

laws, vessel and tanker safety statutes, oil spill liability provisions, U.S. Coast 

Guard laws, and other maritime and ocean statutes. 

One of those laws I helped draft was the Magnuson-Stevens Fishery Conservation 

and Management Act (Magnuson-Stevens Act), the first comprehensive federal fishery management program which applied out to the newly expanded coastal jurisdiction of 200 nautical miles. Three points are important to recall about enactment of 

that 1976 legislation. First, the federal government at the time had no nation-wide 

comprehensive fishery management and conservation program. Domestic fisheries 

were almost entirely regulated by individual coastal states to the three-mile coastal 

boundary at sea; federal management was limited to international treaty implementation and enforcement of the Lacey Act and some other specific but narrow laws. 

Second, enactment of the Magnuson-Stevens Act was viewed as a unilateral act 

under international law given that the U.N. Law of the Sea Treaty was still under 

development. The sponsors of the legislation, however, grew impatient with the 

international process and were concerned that any treaty would come too late to 

prevent serious overfishing by foreign fleets operating close off U.S. shores, particularly in New England. The Magnuson-Stevens Act is basically a conservation measure, but Congress has always also been concerned about management impacts on 

coastal fishing communities. Finally, enactment of the Magnuson-Stevens Act was 

the result of cooperative bi-partisan efforts between the House and the Senate and 

representatives of both parties. For the most part, the content of the Magnuson-Stevens Act was sui generis, something quite different than what had gone before, except perhaps for the enforcement provisions which were largely borrowed from other 

statutes. 

In 1977, President Jimmy Carter appointed me to be the Deputy Administrator 

of NOAA, a position that then required Senate confirmation. Beginning in 1978, I 

became responsible for management of the agency’s ocean programs, including early 

implementation of the Magnuson-Stevens Act. I also was responsible for agency testimony before Congress, assisting with the agency’s budgets, and hiring and supervising agency leadership. I served in that position until August 1981. From January 

to August 1981, I also served as Acting Administrator of NOAA until Dr. John 

Byrne, President Reagan’s selection for NOAA Administrator, was confirmed. 

Therefore, my perspective on fishery enforcement derives from experience in each 

of the federal government’s branches: legislative, executive and, most recently, the 

judicial. 

Back to Basics: Ensuring that the rule of law controls and that prosecutorial discretion is reasonably exercised 

The fishery management enforcement system managed by NOAA sits within the 

larger context of relevant constitutional limits on government and Congressional 

guidance on how enforcement is to be conducted. Several first principles must always be kept in mind: 

First, the Fifth Amendment to the U.S. Constitution mandates that federal agencies may not deprive individuals of ‘‘liberty’’ or ‘‘property’’ interests without providing the charged individual with procedural due process. Under the MagnusonStevens Act, civil penalties may not be imposed without providing notice and an opVerDate Nov 24 2008 14:24 Jun 01, 2010 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6621 L:\DOCS\55220.TXT Hresour1 PsN: KATHY
56 

portunity for a fair hearing before a neutral decision-maker. The hearing process 

must be structured with due regard for the risk of an erroneous depravation of such 

interests. 

Second, pursuant to the Administrative Procedure Act’s (APA) formal hearing procedures, which are incorporated into the Magnuson-Stevens Act, the agency must 

bear the burden of proof on all matters, including the penalty to be assessed. The 

APA also provides the charged party with the ability to rebut the allegations of the 

agency, including by cross-examination of witnesses, which many consider to be the 

most important defense right for a charged individual or company. 

Third, the due process clause requires that agencies must provide ‘‘fair notice of 

what conduct is prohibited before a sanction can be imposed.’’ U.S. v. Approximately 

64,695 Pounds of Shark Fins, 520 F.3d 976, 980 (9th Cir.). To meet this notice 

standard, a statute or regulation must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so he or she can act accordingly. 

Courts have also said that vagueness in a statute or regulation can encourage arbitrary and discriminatory enforcement by failing to provide explicit standards for enforcement officials. This due process requirement is particularly important with respect to violations of the Magnuson-Stevens Act, which generally are considered 

strict liability offenses where liability attaches without regard to intent or negligent 

behavior. And we are all presumed to know the law. 

Fourth, the penalty assessed for a particular violation must, under the Excessive 

Fines Clause of the Eighth Amendment, bear some relationship to the gravity of the 

offense. In 2003, a Federal District Court in Massachusetts confirmed that this principle applied to forfeiture under the Magnuson-Stevens Act. Roche v. Evans, 249 

F.Supp.2d 47, 59 (D.Mass.2003). 

As you can see, these concepts are quite general in nature and require close attention to ensure compliance in actual application. While some of the controversy in 

New England emanates from the dislike of the entire fishery management system 

by some fishermen, there is a legitimate debate, I believe, about whether NOAA’s 

fishery enforcement program is true to these basic principles. 

One of the most important powers in any law enforcement program is the power 

of prosecutorial discretion: i.e., the decision to bring, or not bring, a particular case. 

This agency power is also implicated in the OIG’s 2010 Report. A good way to highlight the issues associated with the exercise of prosecutorial discretion is to recount 

a fishery enforcement action that found it way to the Ninth Circuit Court of Appeals 

from Hawaii, a true horror-story for the fisherman involved. Mr. Hayashi and his 

son were fishing from a boat off Hawaii and porpoises were attempting to seize the 

fish they caught. To scare them off, Mr. Hayashi fired two rifle shots behind, but 

away from, the porpoises. This conduct was reported to NMFS enforcement agents 

and Mr. Hayashi was then charged with a criminal violation of the Marine Mammal 

Protection Act (MMPA). The main evidence appears to be statements cooperatively 

given by Mr. Hayashi and his son to the NMFS investigators. Mr. Hayashi was then 

convicted. 

On appeal, the conviction was reversed. In its opinion, the Appeals Court made 

the following rather remarkable statements: 

‘‘Initially, we note that two substantial errors infected the proceedings before the magistrate judge and the district court. First, both parties, the 

magistrate judge, and the district court all employed the incorrect regulatory definition of the charged crime. Second, the district court’s affirmance rested, in part, upon the erroneous belief that negligent acts are criminally punishable under the MMPA. 

These errors affected the two most basic elements of every criminal proscription—the actus reus, or act itself, and the mens rea, or mental element 

required for criminal liability. The errors resulted not from a misunderstanding of obscure interpretive gloss, but from a basic misreading of clear 

statutory and regulatory commands. Although every lawyer involved was 

complicit in these errors, the responsibility for prosecuting the correct crime 

lies ultimately with the government. 

We hold that reasonable actions—those not resulting in severe, sustained 

disruption of the mammal’s normal routine—to deter porpoises from eating 

fish or bait off a fishing line are not rendered criminal by the MMPA or 

its regulations.’’ 

The case took nearly four years to resolve, left Mr. Hayashi with a criminal 

charge hanging over his head for all that time, and required him to invest his financial resources and his time into fighting a case that should never have been brought. 

NOAA should manage its fishery enforcement to avoid ever imposing this kind of 

horrible experience on those who are subject to its regulations. 

57 

Possible Reforms 

A. NOAA/NMFS Management: Be informed and involved clients 

Based on my own experience at NOAA, one of the agency’s great strengths is the 

cadre of superb scientists who are at the helm managing its many important public 

tasks. I have great respect for NOAA and NMFS managers, both at the top and at 

the mid-level where much of the work gets done, and I admire their scientific experience and capabilities. However, that same strength is a weakness when it comes 

to law enforcement. Very few NOAA managers I worked with wanted to be involved, 

at all, in enforcement matters, because it was not their interest and requires a set 

of skills one does not develop as a scientist or as a tenured faculty member at a 

university. Consequently, top management at NOAA and NMFS do not regularly 

pay much attention to the fishery enforcement process, nor is it likely they fully understand how it should function best. After all, NOAA is not the Department of Justice. 

During the time I was at NOAA, we debated how to deal with the agency’s enforcement responsibilities in the context of formal delegations of authority. Delegations of authority are important in a federal agency and documents govern who is 

authorized to do what. Currently, nearly all management decisions under fishery 

management plans, including those that might be implicated in an enforcement action (i.e., was the quota actually reached?) are delegated to NMFS regional administrators. However, the NMFS Office of Law Enforcement, in the agency organization 

chart, reports to the NMFS Deputy Assistant Administrator of Operations, not the 

regional administrators. Finally, according to another formal delegation, the powers 

and authorities of the Secretary of Commerce to assess penalties is given exclusively 

to the Office of General Counsel, which reports directly to the NOAA Administrator. 

It is not clear how, if at all, these divergent delegations allow the proper level of 

management authority to come together to make decisions where the authority of 

each (NMFS regional administrator, NMFS administrator, NOAA attorneys, and 

NOAA administrator) must be brought to bear, which should be at the outset of the 

case. The sum total of these management attitudes and delegations, over the years, has 

been to allow those in fishery enforcement, in the General Counsel’s Office and 

NMFS Office of Law Enforcement, to do their own thing. In fact, individual lawyers 

within the Office of General Counsel appear to be in charge, admittedly with supervision by an Assistant General Counsel for Enforcement and Litigation, but not by 

top NOAA and NMFS management officials who are supposed to be managing the 

fisheries. Moreover, lawyers are the sole determinant of the penalty to be assessed. 

The discretion given the Secretary of Commerce in determining a penalty under the 

Magnuson-Stevens Act is quite broad. Although enforcement attorneys refer to a 

published penalty schedule, the assessed penalty can deviate from those suggested 

on the schedule and often do. The penalty schedule has never been subjected to public notice and comment that I can remember. It has been my experience that neither 

senior NOAA nor NMFS management is consulted in a penalty determination by 

NOAA enforcement attorneys. The recent OIG Report confirmed that this is, in fact, 

the practice and labeled it ‘‘arbitrary.’’ 

A basic legal/ethical issue is created by these enforcement arrangements: who is 

the client and are NOAA enforcement lawyers acting as both lawyer and client? 

Under all bar association rules, an attorney has ethical duties to his/her client, for 

example not to act without a client’s approval, to keep the client fully informed, and 

to gain approval of the client for settlement purposes, among other decisions. There 

is also a very practical aspect to these duties: the client serves as a ‘‘check-and-balance’’ on the lawyer, and vice versa. Both have duties and responsibilities to fulfill 

in our system of justice. The suggestions of the 1998 OIG Report, in my mind, can 

be summarized as follows: NOAA and NMFS management—please act like an involved and informed client and guide the enforcement activities of the agency and 

do not simply leave all major decisions to the lawyers and the investigators. It has 

been my experience that, when it comes to litigation over fishery management plans 

in federal district court, the agency and its lawyers function together as attorneys 

and clients, but not necessarily in the enforcement realm. I believe that both the 

lawyers and agency management will be better off if the enforcement program operates consistent with the proper attorney-client relationship. 

It may be useful to create an agency Enforcement Committee including NOAA/ 

NMFS management and its lawyers, either centrally or regionally, to vet cases before they are filed and to follow them at key points through the process, either when 

going to Federal Court or when starting a proceeding before an Administrative Law 

Judge. Requiring the lawyers to explain their cases, and the basis for the requested 

penalty, to NOAA/NMFS management and then get client approval could well generate the kind of ‘‘down-to-earth’’ case assessments that would prevent the problems 

58 

noted in the OIG’s 2010 Report. It might even prevent cases such as Mr. Hayashi’s 

from ever going to court. 

B. Make the Civil Penalty Process More Balanced and Fair 

It is a general impression by most that go through the agency’s civil penalty process, as set forth in 50 C.F.R. Part 904, that it is not fair and is heavily balanced 

in favor of the agency. Rightly or wrongly, that is the perception. One reason for 

this perception may be the fact that the agency writes the rules, brings the case, 

hires the administrative law judges, appeals the decisions to itself, and prevails 

more often than not. Most lawyers who practice in this area generally advise their 

clients to settle, at the outset of the agency demanded penalty amount, given the 

cost of going through the process and the likelihood of winning. In making this observation, I do not in any way wish to cast aspersions on those who function under 

the established guidelines and regulations. I have settled cases on fair terms for all 

parties. But the difficulties in the program are systemic and require broader attention. 

Unlike the rules in federal district court, the agency’s procedural rules were not 

hammered out through the involvement of those likely to be affected by its outcome. 

In my experience, those in the fishing industry do not plan to violate fishery management laws and regulations, but allegations of violations do occur, even to the 

most conscientious. NOAA’s civil penalty rules were not subjected to the rigorous 

analysis of seasoned federal court litigators or experienced judges before they were 

enacted. Agency lawyers largely wrote them. For example, in the current civil penalty process, a charged individual is given a simple choice: pay the penalty assessed 

by the agency or request (and suffer the cost of) a formal hearing. In federal court, 

the agency allegations could be challenged in a number of ways prior to trial and 

there is constant pressure to settle cases without the need for trial. Independent 

judges and mediators are available to give the parties a third-party assessment of 

each side’s case and to urge settlement. I have never tried a case in federal court 

without there being at least one serious settlement session. NOAA lawyers follow 

the agency rules and, thereby, get an advantage procedurally, at least in my opinion, over a charged party, given that settlement is purely at the discretion of NOAA 

attorneys and they set the penalties. 

The assessment of the penalty under NOAA rules is the most seriously deficient 

aspect of the entire procedure. First, the NOAA lawyer assesses the penalty, more 

or less on his/her own. That lawyer-determined penalty amount is then presumed, 

based on past precedent, to be properly determined by agency in the proceeding and 

the charged party must then rebut the basis for the assessment. But because the 

lawyer determined the penalty, he or she cannot also be a witness in the same case 

and could refuse to allow any discovery of that assessment based on the attorneyclient privilege. When this conundrum came on appeal to the NOAA Administrator 

in 2001, the agency ruled that the charged party could not depose or seek answers 

to written questions from the attorney based on the attorney-client privilege and the 

convenience of the agency. In the Matter of AG Fishing Corp., 2001 WL 34683652 

(March 17, 2001). 

In my view, the presumption that a penalty which has been assessed is correct 

under the facts and the law does not comport with statutory and constitutional due 

process, and is not authorized by the Magnuson-Stevens Act and is contrary to the 

APA (5 U.S.C. §§ 554 and 556). Moreover, the ability of a charged party to undertake discovery of the reasons for the assessed penalty, and to cross examine an 

agency witness at a hearing, is uncertain and, therefore, also violates fundamental 

principles of due process if not allowed. How else can one challenge the factual and 

discretionary bases for the assessment? 

These and other problems are endemic to the practices and procedures under the 

agency civil penalty regulations. It is time for the agency to reconsider its rules of 

procedure in civil penalty cases, perhaps by appointing a task force to review the 

regulations that would include seasoned legal practitioners, agency lawyers, sitting 

administrative law judges, and perhaps even retired federal judges. Unfortunately, 

I did not see this task on the NOAA Administrator’s February 3, 2010 list of actions 

to be taken in response to the recent OIG Report. I do not believe that the actions 

she has identified in that Memorandum will solve all the core problems identified 

in the OIG’s 1998 and 2010 Reports. 

C. Amend the Enforcement Provisions of the Magnuson-Stevens Act 

Finally, it is time to consider amendments to the enforcement provisions of the 

Magnuson-Stevens Act, based on more than the views of NOAA’s enforcement attorneys. One such possible amendment would be make much more specific the factors 

to be considered by the Secretary of Commerce in setting the penalty (16 U.S.C. 

§ 1858(c)). The basis for a penalty amount must be more transparent and understandable. 

59 

Another issue that merits examination is the issue of forfeiture of vessels. It has 

been the position of the agency that any vessel is subject to forfeiture for a violation, 

at the discretion of the agency. In my case in Guam, we never resolved the issue 

of whether the Civil Asset Forfeiture Reform Act of 2000 (18 U.S.C. § 983) applies 

to fishery enforcement actions. That law sought to rein in runaway agency forfeiture 

actions that appeared to be based on the need for income rather than the dispensation of justice. For example, why should a fishing vessel be forfeited for a single violation which would only be subject to a $140,000 civil penalty. 

Another possible amendment would be to create a new category for judicial civil 

penalties, similar to the remedy found in the Clean Water Act (33 U.S.C. § 1319), 

for large civil penalty cases, such as for cases with over $250,000 in assessed penalties. I would also favor a jury trial in such cases as well. I do not believe that 

the NOAA civil penalty rules were ever fashioned for large cases. 

Finally, the Committee could consider making the Equal Access to Justice Act 

now in the Federal Rules of Civil Procedure available in civil penalty administrative 

proceedings. 

I am sure others will have ideas for new legislation as well. 

Again, thank you for the opportunity to present this testimony today. I would be 

happy to try to answer any of the Subcommittee’s questions. 

Response to questions submitted for the record by James P. Walsh 

As requested, I am responding to the Subcommittee’s questions regarding the 

fishery enforcement programs of the National Oceanic and Atmospheric Administration (NOAA), the subject of the hearing on March 3, 2010. 

Question: How are the penalty schedules set in other agencies? Is there 

generally a public notice and comment period? 

Although we have not done a complete review, other agencies have much more 

extensive enforcement policies than NOAA, which includes guidance on penalty 

amounts, and some have used the public notice and comment process not only to 

alert the public to agency policies but to obtain comment on their proposals as well. 

Of course the most elaborate process, that includes public notice and comment, is 

followed by the United States Sentencing Commission which addresses criminal 

penalties in federal court. See 28 U.S.C. § 994(a); U.S. Sentencing Commission, An 

Overview of the Federal Sentencing Guidelines (1998). Some agencies have used formal notice and comment to announce enforcement policies. Attached as Exhibit 1 

is a copy of a recent final rule issued by the Office of Foreign Assets Control, U.S. 

Treasury entitled ‘‘Economic Sanctions Enforcement Guidelines’’ (74 Fed. Reg. 

57593-608; Nov. 9, 2009). Other agencies, such as the Environmental Protection 

Agency (EPA) and the U.S. Coast Guard have adopted extensive policies that guide 

agency penalty assessment procedures. I do not believe they were subjected to notice 

and comment. Exhibit 2 (EPA’s Policies) and Exhibit 3 (the Coast Guard’s Policies). 

In contrast, NOAA’s enforcement guidance and policies are much more limited and 

the agency has given almost total discretion to its enforcement attorneys in the setting of penalty amounts. 

Question: You note that there was an Inspector General report issued in 

1998 that also recommended changes in the law enforcement program. Why 

do you think the agency has not followed the recommendations of the 

report? 

The top management of NOAA, including the Administrator and the General 

Counsel, simply did not focus management attention on the issues of enforcement, 

leaving decisions on the enforcement program to managers lower in the agency. 

With no management guidance, the program was left to continue as before. Clearly, 

Dr. Lubchenco has asserted management responsibility and is taking a fresh look 

at the program, which is long overdue. 

Question: You note that you think the ‘‘penalty assessed for a particular 

violation...must bear some relations to the gravity of the offense.’’ Do you 

believe that NOAA law enforcement should have a data system that tracks 

repeat offenders? 

The requirement that the penalty must bear some relationship to the gravity of 

the offense is a constitutional requirement under the Excessive Fines Clause of the 

Eighth Amendment to the U.S. Constitution. Therefore, the agency must document 

how it reached the penalty amount in a particular case and provide a rational basis 

for its decision. NOAA already has a data system for tracking repeat offenders. 

60 

Every civil penalty case that is resolved is in a database and is used each time the 

same person is charged with a new offense. 

Question: Do you think that the fisheries general counsel staff should 

report to the Assistant Administrator for Fisheries rather than the Under 

Secretary? If so, why would this make sense and why do you think it has 

not been done? 

I do not believe a change in reporting is required. What is required is a civil penalty charging and assessment process that brings the various offices together for a 

consensus before a case is charged. Note in the EPA and Coast Guard documents 

that the program and regional offices of those agencies are integrally involved in 

the decisions to bring a case and what amount of penalty is appropriate. NOAA allows its fishery enforcement attorneys to make these important decisions on their 

own. 

As you know, NOAA has issued a proposed rule that would eliminate the presumption that a penalty amount assessed in a Notice of Violation and Assessment 

is correct. See 75 Fed. Reg. 13050-51; March 18, 2010. Further steps were announced in a Memorandum from the Administrator dated March 18, 2010. We hope 

the Subcommittee will continue to exercise its oversight as NOAA moves forward 

with improvements in its fishery enforcement programs. 

If I can be of further assistance, please let me know. 

Attachments 

Ms. BORDALLO. Thank you. Thank you very much, Attorney 

Walsh. I am sure you have many interesting stories to tell, and I 

let you run overtime because this was my region you were talking 

about, and very interested to hear about it. And you did come up 

with some of your ideas, which will be solutions to some of our 

problems, hopefully, in the future. 

I have some questions, just a couple of questions for each of you. 

Lieutenant Colonel Buckson, do you think it would be helpful if 

NOAA OLE agents were more visible? 

Mr. BUCKSON. One of the—I will answer your question. But—— 

Ms. BORDALLO. Will it be yes or no or—— 

Mr. BUCKSON. Yes is probably the short answer. One of the challenges for conservation law enforcement folks is being able to participate as law enforcement folks unlike a normal PD or someone 

from the sheriff’s office. We are confronting people with weapons on 

a daily basis. When we are in the woods, we run across people with 

guns all the time. A city police department would frantically deal 

with that situation in a much different way than we do. We have 

to have the ability to be able to communicate with our stakeholders, those folks that are using the resources, in being able to 

get a good grip on exactly when it is time to use the law enforcement parts of your career and your training. And the biggest part 

of that is done with interaction with those stakeholders. 

Ms. BORDALLO. So more visible. Given your experience with the 

law enforcement committee for the Atlantic States Marine Fisheries Commission, how can law enforcement personnel be better 

made a part of the fishery management process, in your opinion? 

Mr. BUCKSON. In my written testimony, I discussed that just a 

little bit. And the Atlantic States Marine Fisheries Commission is 

one of the Commissions—actually, all of them have really pushed 

hard to get the law enforcement committees involved in the process 

from the very beginning. And when I say involved in the process, 

I am talking about the management process. When they are developing regulations, historically what was found—and I believe we 

are getting better, but yet still not there—is regulation managers 

61 

would find a situation that needed to be addressed, and when they 

determined a way to address it, whatever the management plan 

might be, whether it was a size limit, a bag limit, a season closure, 

or tow times, for example, the length of time or period of time that 

you can fish, quite often there wasn’t the opportunity for law enforcement to have input in that to give some sort of indication 

whether or not it is an enforceable regulation or not an enforceable 

regulation. 

I think the process is both the councils and the commissions are 

beginning to look at that at least a little bit more. My experience 

with some of the councils down south is though we have provided 

input, we are very clear to explain to those councils whether or not 

we have the ability not just to agree with what the regulation is, 

but the ability, the staffing, the assets to enforce those regulations. 

Sometimes they still move forward with a different regulation than 

maybe what we would have hoped to be able to do. 

Ms. BORDALLO. How are the priorities for Federal fishery regulations enforcement established with state partners? Just give me a 

brief answer on that. 

Mr. BUCKSON. Yes, ma’am. In the State of Florida, we have meetings with the regional law enforcement officials with OLE. The 

deputy has special agents in charge with upper echelon staff. We 

just recently, within the last few months, had a discussion with 

them, and we basically discussed exactly what you said. What are 

your priorities? What would you like to see the state enforcement 

officers focusing their enforcement efforts on? 

I don’t have a list of those in front of me now, but we pass that 

on to our regional commanders, and that actually gives both agencies a very high level of comfort in knowing that we are at least 

approaching and attempting to enforce those regulations that are 

important to both partners, state and Federal. 

Ms. BORDALLO. Good. So you do have a set of priorities, and you 

discuss it among yourselves. Attorney Walsh, what do you think of 

the recommendation of having ombudsmen to act as a trust intermediary between the fishing industry and NOAA? 

Mr. WALSH. I see an ombudsman more on the general policy side. 

I see the ombudsman to be somebody you can go to with general 

policy considerations. But it seems to me in particular cases, we 

need better exercise of prosecutorial discretion. We need a fair 

process so we can sort out the good cases from the bad. And we 

need penalties that are fair. I don’t think an ombudsman would be 

good for those particular cases, but it would be good to get the feedback because, as you know, sometimes it is not your friends that 

tell you the truth, it is your enemies. And sometimes it is good to 

have a place to go and complain. 

Ms. BORDALLO. So the ombudsman—— 

Mr. WALSH. Might help. 

Ms. BORDALLO. Might help, I see. 

Mr. WALSH. Might help. But I really do think that the fundamental due process requirements in our constitution need to be 

strengthened as they are reflected in the NOAA civil penalty regulations. That is probably the best thing that can be done. 

Ms. BORDALLO. Can you explain how your idea of an agency enforcement committee could be structured and implemented? 

62 

Mr. WALSH. Well, I do know that in other agencies—I have an 

associate who worked for the Federal Trade Commission, and they 

basically have, you know, sort of the directors of particular bureaus 

or branches or offices or managers get together with their lawyers 

and decide whether they should go to court. So what would happen, 

basically, either through general policy guidance or some specific 

cases would actually go fairly high up in the agency, at least to the 

regional administrator of the National Marine Fisheries Service, 

where the lawyer would basically say, here is my case, here is what 

I would like to do. I think this should be brought, or I think this 

should be referred to the U.S. Attorney, or I think this vessel 

should be seized. And the client listens to the case, as happens 

with my clients on everything I do, and the client gives feedback 

and says, OK, that is a good case, let us go with that. No, I think 

that case there may be weak. 

You know, it is just a system where the lawyers explain what 

they want to do to their clients, who then give the kind of feedback 

you need from a client. 

Ms. BORDALLO. Thank you very much, Attorney Walsh. I want to 

thank both of you for your thoughtful testimony, and for taking the 

time to be here. This has been quite a lengthy hearing. And I 

apologize that more Members are not present to hear what you had 

to say. But don’t take it personally. We have everything on record. 

And it is just the way Congress works on a Wednesday. A Tuesday 

and a Wednesday and a Thursday. Those are the three busy days. 

Mr. WALSH. Madame Chair, I think this is my 101st or 102nd 

time testifying before Congress. 

Ms. BORDALLO. Well, then you understand perfectly. I want to 

thank all of the witnesses for their participation in the hearing 

today. And members of this Subcommittee may have some additional questions for the witnesses, and we will ask you to respond 

to these in writing. 

In addition, the hearing record will be held open for 10 days for 

anyone who would like to submit additional information for the 

record. And if there is no further business before this 

Subcommittee, as Chairwoman, I again thank the members of the 

Subcommittee and our witnesses for their participation here this 

afternoon. And this Subcommittee now stands adjourned. 

[Whereupon, at 4:08 p.m, the Subcommittee was adjourned.] 

[Additional material submitted for the record follows:] 

63 

[A letter submitted for the record by Patrick Flanigan, Law 

Offices of Patrick Flanigan, Swarthmore, Pennsylvania, follows:] 

PATRICK FRANCIS FLANIGAN 

Law Office of Patrick Flanigan 

P.O. Box 42, Swarthmore, PA 19081-0042 

Tel: (484) 904-7795 

Email: info@lawofficepf.com 

Admitted in Pennsylvania and New Jersey 

Websites: 

www.pfemployment.com 

www.pfmaritime.com 

March 11, 2010 

VIA FACSIMILE 

Mrs. Madeleine Z. Bordallo, Guam, Chairwoman 

Subcommittee on Insular Affairs, Oceans and Wildlife 

1337 Longworth House Office Building (Insular Affairs) 

Washington, D.C. 20515 

Re: Setting the Bar for Accountability: Improving NOAA Fisheries Law 

Enforcement Programs and Operations: March 3, 2010 

SUPPLEMENTAL COMMENTS 

Dear Madam Chairwoman Bordallo: 

This correspondence is to supplement my prior comments of February 28, 2010. 

a. Ombudsman: Not useful to address the enforcement matters raised in the Review of NOAA Fisheries Enforcement Programs and Operations (Final Report No. 

OIG-19887 January 2010). But such a program is long overdue and very necessary 

for dockside education and outreach purposes to the regulated industry. There are 

frequent complaints by fishermen stating that they telephone the NMFS office in 

Gloucester, MA and get different responses concerning regulatory questions or even 

refusal to answer a question for ‘‘legal’’ reasons. 

b. As an attorney practicing in the area of NOAA enforcement I have encountered 

numerous due process issues, some of which I shared with the OIG during their investigation. One example I did not share with the OIG is a case where the NOAA 

attorney assessed a civil fine of $1.24 million dollars and life-time removal of the 

fishermen from the industry. This is a civil case in which the NOAA attorney repeatedly stated to me that he had a personal dislike for the fisherman and wanted 

the captain of the vessel to ‘‘change’’ his testimony such that it would be more harmful against the vessel owner. During the civil proceedings, I motioned to compel the 

deposition of the NOAA attorney to query whether the attorney has compiled with 

the (NOAA/OLE) Penalty Schedule guidelines, which set forth a balancing of numerous factors under ‘‘Aggravating/Mitigating Circumstances’’ in assessing the NOVA 

and NOPS. The ALJ denied the motion and further denied cross-examining the 

NOAA attorney during the hearing. While I understand the privileges raised by the 

NOAA attorney, the system is perverse. The NOAA attorney has sole discretion to 

evaluate the case, controls the record and what is produced, determines fines and 

penalties, has exclusive settlement authority and then goes before an ALJ as the 

opposing party—yet cannot be cross-examined. As I previously stated, the OIG’s 

findings are not surprising to the regulated industry because NOAA attorneys have 

long been acting as the enforcer, the judge and the jury. 

c. There are many other due process concerns that occur at various stages of 15 

C.F.R. § 904 et seq. This correspondence is a specific request that there be congressional inquiry into these civil procedures with appropriate rulemaking to address 

the concerns. 

Thank you for your consideration of this important matter. 

Respectfully submitted, 

PATRICK FLANIGAN 

Æ