Friday, July 16, 2010

Response to US Inspector General's Review of NOAA Fisheries Enforcement Practices

A recently released report from the U.S. Inspector General for the Department of Commerce has exposed and documented numerous and extensive improper acts by enforcement officials from the National Oceanic and Atmospheric Administration (NOAA) in imposing fines on fishing families and misspending the proceeds of those fines. You can read that report by clicking here.

Clearly these actions demand correction, and my office authored a letter which I co-sponsored with Representative Ann-Margaret Ferrante, Speaker DeLeo and Senate President Murray to seek corrective action from our federal legislative delegation. The letter is posted in the “Read more” below.

July 15, 2010

Dear Congressman,

Given your interest in our Commonwealth’s commercial fishing industry and the many highly publicized instances of wrongdoing and improper acts by those in the National Oceanic and Atmospheric Administration (NOAA) charged with enforcing fisheries regulations, you may be aware of recent revelations by the Inspector General for the U.S. Department of Commerce that fisheries enforcement officials have systematically and egregiously abused the asset forfeiture process. We are writing to seek your action to deal with this situation and provide redress for the fishing families of Massachusetts and New England.

You may know that fines assessed by NOAA against fishermen who violate federal fisheries laws or regulations, as well as other related forfeitures, go into an Asset Forfeiture Fund for use by NOAA. Federal law sets out the conditions under which the Fund’s money may be used by the Administration, limiting it to “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”. This fund is used by both the Office for Law Enforcement (OLE) and the Office of General Counsel for Enforcement and Litigation (GCEL). GCEL appears to be virtually entirely funded through this fund. Fishermen from the Northeast were disproportionately affected by these fines, being assessed at a rate up to five times higher than other regions.

On July 1, the Inspector General for the Department of Commerce released a report examining the finances of the asset forfeiture fund. After a forensic review of the fund by the accounting firm KPMG, the report shows a shocking failure to account for withdrawals from the fund or to limit expenditures from the fund.

The review’s conclusions fall into three main categories. First, NOAA has no definition of what the Fund is or how much money is in it, providing three different definitions to the Inspector General and finally conceding that the Fund is more of an “abstract concept” than a delineated account. Although OLE had previously stated they believed the balance of the Fund to be roughly $8.4 million, KPMG’s review reveals the Fund’s current balance to be over $47 million, with approximately $96 million taken in over the past five years. This difference of an order of magnitude is a disturbing indication that NOAA is either deliberately uncooperative or completely unaware of the scope of the Fund.

Second, NOAA maintains extremely substandard documentation of its expenses from the Fund. Given NOAA’s treatment of the Fund as an “abstract concept,” perhaps this is not surprising. But the IG’s report finds an opaque system in which fully 62% of documents selected for review lacked required supporting documentation, and 27% lacked any record of approval. There is no standardization of the documentation process over different regions, there is no oversight of the Fund within NOAA, and at least 4,000 instances were found where transactions appeared to have been split into two to avoid single purchase limits, in violation of federal law.

Specifically with respect to the Northeast, even though the Magnuson-Stevens Act requires that fines for violations of the Northeast Multispecies Fishery Management Plan be used to enforce that Plan, NOAA has no system in place for segregating or accounting for those fines.

Finally, the Inspector General’s report reveals a shocking number of abuses of the AFF to pay for expenses far beyond the scope permitted by statute. As referenced above, AFF funds should only be used for expenses directly related to investigations and enforcement proceedings. However, KPMG’s investigation showed that AFF funds were used for virtually all of GCEL’s expenses, and a large number of OLE expenses that clearly do not fall within this category.

To address this injustice, we believe that Congress should act to compensate fishermen who were the subject of these unnecessary enforcement actions. Specifically, we believe that the $96 million that KPMG estimates constitutes the balance of the asset forfeiture fund should be withheld from NOAA’s annual appropriation, and that Congress should establish a Fishermen’s Compensation Fund, made up of the money withheld from NOAA, to repay those individuals against whom NOAA levied fines over the appropriate period of time. We understand that the Commerce/Justice/Science appropriation bill is currently under consideration by the relevant House and Senate appropriations subcommittees, and ask that you support an amendment containing these proposals either in the committee process or during further House and Senate deliberations.

There is, unfortunately, no easy solution that will wipe away years of inappropriate actions by NOAA. But the sooner action is taken to make whole those who have borne the brunt of an agency’s excessive use of its enforcement power, the sooner the fishing industry, which has supported New England families for hundreds of years and is one of the defining pieces of the culture of Massachusetts, can move forward.

Thank you for your consideration of this request, and please do not hesitate to contact us if we may be of any further assistance.


Bruce Tarr
State Senator

Therese Murray
Senate President

Ann-Margaret Ferrante
State Representative

Robert DeLeo
Speaker of the House