[Federal Register Volume 75, Number 188 (Wednesday, September 29, 2010)]
[Notices]
[Pages 60085-60087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24446]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XZ29


NOAA Proposed Policy on Prohibited and Authorized Uses of the 
Asset Forfeiture Fund

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

ACTION: Notice; request for comments.

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SUMMARY: The Magnuson-Stevens Fishery Conservation and Management Act 
authorizes the Secretary of Commerce through NOAA to pay certain 
enforcement related costs from sums received as fines, penalties, and 
forfeitures of property for violations of any marine resource law 
enforced by the Secretary. Fines, penalties, and forfeitures of 
property received by NOAA are deposited in an enforcement asset 
forfeiture fund. The Secretary is proposing a new policy to clearly 
articulate prohibited and authorized uses of these funds to ensure no 
conflict of interest- either real or perceived - associated with its 
use while continuing to promote a sound enforcement program dedicated 
to conserving and protecting our nation's marine resources. The 
Secretary requests comments from the public on listed prohibited and 
authorized uses of the funding and, in particular, expenditures for 
activities that would promote compliance with regulations promulgated 
by NOAA.

DATES: Written comments must be received on or before 5 p.m., EST, on 
November 29, 2010.

ADDRESSES: Written comments may be sent by any of the following 
methods:
     E-mail to the following address: [email protected]. 
Please note on your correspondence and in the subject line of e-mail 
comments the following identifier: ``Draft Asset Forfeiture Fund Policy 
Comments.'';
     Mail or hand deliver to Mr. Mark Paterni, Assistant 
Director, Office of

[[Page 60086]]

Law Enforcement, National Oceanic and Atmospheric Administration, 8484 
Georgia Avenue, Suite 415, Silver Spring, MD 20910. Mark the outside of 
the envelope ``Draft Asset Forfeiture Fund Policy Comments''; or
     Fax to 301-427-2055 noting ``Draft Asset Forfeiture Fund 
Policy Comments.''

FOR FURTHER INFORMATION CONTACT: Mr. Mark Paterni, Assistant Director, 
Office of Law Enforcement, National Oceanic and Atmospheric 
Administration, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 
20910, (telephone 301-427-2300).

SUPPLEMENTARY INFORMATION:

I. Proposed Policy on Prohibited and Authorized Uses of the Asset 
Forfeiture Fund

    Strong management and oversight of the Asset Forfeiture Fund (AFF) 
is essential to restoring the public's trust in the National Oceanic 
and Atmospheric Administration's (NOAA) Enforcement Program. It is the 
goal of the Department of Commerce and NOAA to establish a stringent 
policy for effective oversight of the AFF that will ensure no conflict 
of interest -- real or perceived - associated with its use while 
continuing to promote a sound enforcement program dedicated to 
conserving and protecting our nation's marine resources. This policy 
statement provides clear guidance on the approved uses of the AFF that 
are consistent with applicable legal authority and that will help 
assure those regulated that all fines and penalties are fairly and 
equitably assessed based solely on the severity of the violation. This 
policy statement also prohibits funding for specific activities. In 
addition, the Department will expand the use of AFF funding to include 
compliance assistance to better serve the needs of our stakeholders and 
improve the way NOAA engages and interacts with its regulated 
community.
    Monies within the AFF are derived from fines, penalties, and 
property forfeitures associated with violations of marine resource laws 
(Magnuson-Stevens Act, Endangered Species Act, Marine Mammal Protection 
Act, and Lacey Act, among others). The Department believes, as did the 
Congress in establishing the AFF and specifying the allowable uses, 
that it is appropriate to use the proceeds of NOAA's enforcement 
program to offset in part the costs of administering that program. 
Those who violate these laws should help offset the cost of protecting 
our marine resources in lieu of those costs being borne by taxpayers. 
Further, the availability of these funds for enforcement reduces the 
requirement for additional appropriations and expands NOAA's ability to 
respond to violations of the laws it is charged with enforcing. NOAA's 
Office of Law Enforcement's (OLE) National Enforcement Operations 
Manual and the Office of the General Counsel for Enforcement and 
Litigation's (GCEL) Operating Procedures Manual will include the new 
policy, along with detailed guidance.
    To ensure accountability and transparency in AFF accounting, NOAA 
will take a number of actions. The Agency will clearly identify and 
track AFF monies received and expended, and centralize the AFF approval 
processes for expenditures. Starting with the FY 2012 budget 
submission, NOAA will identify and account for the AFF in its annual 
budget. Beginning in FY2011, an annual operating budget will be 
developed for the AFF based upon the policy, and proposed modifications 
to that budget must be approved by the NOAA Chief Financial Officer.
    Separately, NOAA will establish appropriate uses of other 
enforcement proceeds retained by the Secretary but not part of the AFF. 
In particular, NOAA will examine the use of fines and penalties 
collected for violations of the Northeast Multispecies Fishery 
Management Plan, which under section 311(f) of the Magnuson-Stevens Act 
must be used to enforce the Plan.

Prohibited Uses

    The policy prohibits the use of the AFF for the following 
activities:
     Funding for any NOAA employee labor, benefits, or awards;
     Funding for any vehicle purchases or leases, including 
patrol vehicles, undercover vehicles, all terrain vehicles, vehicles 
assigned to agents to carry out their enforcement duties, or associated 
equipment, upgrades, modification, or maintenance of current vehicles;
     Funding for any vessel purchases or leases, including 
patrol vessels, undercover vessels, or associated equipment upgrades, 
modification, or maintenance of current vessels;
     Funding for any domestic or foreign travel that is not 
related to specific investigations, enforcement proceedings, or 
required training, such as attendance at general conferences or 
seminars except as specifically authorized below;
     Funding for any training that is not specifically required 
by policy as an integral part of an employee's job as detailed below; 
and
     Funding for the purchase of any equipment that is not 
directly related to a specific investigation or enforcement proceeding, 
including weapons and ammunition, uniforms, copiers or facsimile 
machines, desktop or laptop computers, Blackberries or other PDAs, cell 
phones or radios, video or audio recording equipment; or office 
furniture.

Authorized Uses

    The policy authorizes funding for certain specific enforcement-
related activities:
     Compliance assistance as discussed further below;
     Costs directly related to the proper storage of seized 
fish, vessels, or other property during a civil or criminal proceeding;
     Rewards for information related to enforcement actions;
     Valid liens, mortgages, and claims against, or interest 
in, seized or forfeited property;
     Reimbursement to other Federal or State agencies for 
enforcement related services provided pursuant to an agreement entered 
into with the Secretary;
     Expenditures related directly to specific investigations 
and enforcement proceedings; such as interviewing expert witnesses, 
witness participation at trials, hearings or depositions, expert 
witness fees, case support contracts, or required forensic or evidence 
handling supplies;
     Attendance at international bi- or multi-lateral meetings 
and negotiations to discuss enforcement specific agenda items;
     Training and associated travel required by policy for all 
enforcement personnel, mandatory courses at the Federal Law Enforcement 
Training Center and required field training assignments;
     Mandatory annual in-service or national training for OLE 
and GCEL employees;
     Training for Federal and state partners regarding Federal 
statutes and regulations under NOAA's authorities;
     Enforcement unique information technology infrastructure, 
including hardware, software and maintenance, required specifically for 
NOAA's enforcement and legal systems and databases;
     Annual interagency agreement and contract costs for the 
administrative adjudication process, including Administrative Law 
Judges; and,
     Efforts to combat international unregulated and unreported 
fishing through annual funding to the International Monitoring, 
Control, and Surveillance Network.

[[Page 60087]]

Compliance Assistance

    The Department will implement activities to better serve the needs 
of our stakeholders and improve the way NOAA engages and interacts with 
its regulated community. This new component will be aimed at improving 
and expanding NOAA's compliance assistance, collaboration, and outreach 
activities. The Department will work with the Marine Fisheries Advisory 
Committee (additional information at: http://www.nmfs.noaa.gov/ocs/mafac/) to develop proposals for activities or program enhancements 
that will improve compliance with all marine resource statutes. 
Activities may include, but are not limited to:
     Placing a full or part-time Compliance Assistance Liaison 
in NMFS Regional Offices as needed, beginning with New England;
     Expanding the use of regional enforcement workshops and 
training sessions to bring together and educate stakeholders on 
regulations and other requirements associated with fishery management 
plans, National Marine Sanctuaries, and activities related to the 
protection of endangered species and marine mammals;
     Educating and involving fishermen in the development of 
potential solutions to regional and national enforcement-related 
issues; and
     Improving communication with regulated communities and the 
general public relative to enforcement issues through increased OLE and 
GCEL participation in Regional Fishery Management Council meetings or 
Sanctuary Advisory Committee meetings, improved websites, easy to 
understand compliance guides, and timely electronic or other 
notifications of changes in regulations.
    These compliance assistance activities would likely be funded by 
the AFF through agreements with federal and state partners, or in the 
case of efforts addressing NE Multispecies, through enforcement 
proceeds available to the Secretary under section 311(f) of the 
Magnuson-Stevens Act.

II. Additional Information

Ensuring a Strong Enforcement Program

    NOAA and other federal agencies with similar authorities must 
maintain adequate funding for enforcement. At the National Enforcement 
Summit held in early August, participants stressed the need for 
effective and fair enforcement around the country. They offered 
suggestions that NOAA should focus more on compliance and outreach to 
better balance its deterrence efforts.
    The need for a strong enforcement program is widely recognized and 
supported as a key component of supporting legal fishers and the 
American public through barring illegal imports, ending illegal 
domestic harvests, and ensuring safe and wholesome seafood products. As 
NOAA completes the broad set of activities aimed at improving its 
enforcement programs, including a corrective action plan for the AFF, 
NOAA must ensure an adequate funding level is maintained. Otherwise, 
the many benefits of a strong enforcement program would be at risk.

Legislative Authorities

    The specific statutory authority for use of the fund for certain 
enforcement related purposes is found in section 311(e)(1) of the 
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 
1861). Section 311(e)(1) authorizes six types of expenditures: (A) the 
reasonable and necessary costs incurred in providing temporary storage, 
care, and maintenance of seized fish or other property pending 
disposition of any civil or criminal proceeding alleging a violation of 
any provision of this Act or any other marine resource law enforced by 
the Secretary with respect to that fish or other property; (B) a reward 
of not less than 20 percent of the penalty collected or $20,000, 
whichever is the lesser amount, to any person who furnishes information 
which leads to an arrest, conviction, civil penalty assessment, or 
forfeiture of property for any violation of any provision of this Act 
or any other fishery resource law enforced by the Secretary; (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; (D) any valid 
liens or mortgages against any property that has been forfeited; (E) 
claims of parties in interest to property disposed of under section 
612(b) of the Tariff Act of 1930 (19 U.S.C. 1612(b)), as made 
applicable by section 310(c) of this Act or by any other marine 
resource law enforced by the Secretary, to seizures made by the 
Secretary, in amounts determined by the Secretary to be applicable to 
such claims at the time of seizure; and (F) reimbursement to any 
Federal or State agency, including the Coast Guard, for services 
performed, or personnel, equipment, or facilities utilized, under any 
agreement with the Secretary entered into pursuant to subsection (a), 
or any similar agreement authorized by law.Though not part of the AFF, 
section 311(f) provides that fines and penalties collected for 
violations of the Northeast Multispecies Fishery Management Plan shall 
be used for purposes of enforcing the Plan.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: September 24, 2010.
Eric C. Schwaab,
Assistant Administrator For Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2010-24446 Filed 9-24-10; 4:15 pm]
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