[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
                          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/
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                     COMMITTEE ON NATURAL RESOURCES

              NICK J. RAHALL, II, West Virginia, Chairman
          DOC HASTINGS, Washington, Ranking Republican Member

Dale E. Kildee, Michigan             Don Young, Alaska
Eni F.H. Faleomavaega, American      Elton Gallegly, California
    Samoa                            John J. Duncan, Jr., Tennessee
Frank Pallone, Jr., New Jersey       Jeff Flake, Arizona
Grace F. Napolitano, California      Henry E. Brown, Jr., South 
Rush D. Holt, New Jersey                 Carolina
Raul M. Grijalva, Arizona            Cathy McMorris Rodgers, Washington
Madeleine Z. Bordallo, Guam          Louie Gohmert, Texas
Jim Costa, California                Rob Bishop, Utah
Dan Boren, Oklahoma                  Bill Shuster, Pennsylvania
Gregorio Sablan, Northern Marianas   Doug Lamborn, Colorado
Martin T. Heinrich, New Mexico       Adrian Smith, Nebraska
George Miller, California            Robert J. Wittman, Virginia
Edward J. Markey, Massachusetts      Paul C. Broun, Georgia
Peter A. DeFazio, Oregon             John Fleming, Louisiana
Maurice D. Hinchey, New York         Mike Coffman, Colorado
Donna M. Christensen, Virgin         Jason Chaffetz, Utah
    Islands                          Cynthia M. Lummis, Wyoming
Diana DeGette, Colorado              Tom McClintock, California
Ron Kind, Wisconsin                  Bill Cassidy, Louisiana
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

                     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             Don Young, Alaska
Eni F.H. Faleomavaega, American      Jeff Flake, Arizona
    Samoa                            Doug Lamborn, Colorado
Frank Pallone, Jr., New Jersey       Robert J. Wittman, Virginia
Gregorio Sablan, Northern Marianas   John Fleming, Louisiana
Donna M. Christensen, Virgin         Jason Chaffetz, Utah
    Islands                          Bill Cassidy, Louisiana
Diana DeGette, Colorado              Doc Hastings, Washington, ex 
Ron Kind, Wisconsin                      officio
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
                                 ------                                
                                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
                                     



 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 non-uniform 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 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, nationwide'' 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 non-uniform 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 Enforcement 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.
    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 middle 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 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 non-criminal.
    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 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
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 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.
[GRAPHIC] [TIFF OMITTED] T5220.001

    .epsThe 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 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
---------------------------------------------------------------------------
    \2\ These efforts are detailed in a December 1, 2009, memorandum 
from the Assistant General Counsel for GCEL to NOAA's Deputy General 
Counsel.
---------------------------------------------------------------------------
    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 narrowly-
focused 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.
---------------------------------------------------------------------------
    \3\ The Act is codified, as amended, at 16 U.S.C. Sec. 1801 et seq. 
For more information on the Act, see our January 21, 2010, report.
    \4\ See 16 U.S.C. Sec. 1859.
---------------------------------------------------------------------------
    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 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
---------------------------------------------------------------------------
    \5\ 16 U.S.C. Sec. 1861(e)(1)(C).

           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.
        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 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.
    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 overly-confusing 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?

    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 industry-based 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 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 agency'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 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 short-term 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:
    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.
                                 ______
                                 

 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 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 Enforcement 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 contracts 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 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.
       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.
    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.
    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 polar-
orbiting 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, allegations 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 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 Administrative 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 criminal-investigative, 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.
                                 ______
                                 
*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 contributed 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 encouraged 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 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.
    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 Counsel? 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 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 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?
    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?
    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, 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 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,
    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 investigations. 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 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.
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 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 common-sense 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 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.
    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 enforcement 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 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 attorney-client 
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 court said that the error came not from a 
misunderstanding of obscure interpretative gloss on the 
statute, but from a basic misunderstanding 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.
    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. Department 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. OIG-19887; 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 Magnuson-Stevens Act, civil penalties 
may not be imposed without providing notice and an opportunity 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.
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 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 attorney-client 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. Sec. Sec. 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. Sec. 1858(c)). The basis for 
a penalty amount must be more transparent and understandable.
    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. Sec. 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. Sec. 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. Sec. 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. 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 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?
    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:]
    [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: [email protected]
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. Sec. 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

                                 
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