The Enforcers are Enforced
by Laurie Schreiber
Federal fishery officials are deep into addressing what have been found to be abuses of authority by enforcement personnel and abuses in the management and the use of funds obtained through imposed penalties.
On Aug. 3, the National Oceanic and Atmospheric Administration held a National Enforcement Summit that brought together about 80 stakeholders from the commercial and recreational fishing industries, non-governmental organizations, and state and federal enforcement officials.
The meeting was set up to focus on how NOAA can better manage marine resources through consistent and transparent enforcement of natural resource laws.
“Today’s summit is the latest step as we re-shape the future of NOAA’s enforcement efforts,” said Dr. Jane Lubchenco in her opening remarks.
Lubchenco is the under secretary of commerce for oceans and atmosphere and the NOAA administrator.
“Fair and effective enforcement is essential to sustainable fisheries, vibrant coastal communities, and stable economies,” she said.
Lubchenco called for the summit as part of her response to a Jan. 21, 2010, U.S. Department of Commerce Office of Inspector General’s report on NOAA’s past enforcement policies and practices.
NOAA retained a third party, the U.S. Institute for Environmental Conflict Resolution (Udall Institute), to facilitate the summit and compile the recommendations from participants. The summit was streamed online. Summit materials and the webcast can be found at http://noaaenforcementsummit2010.ecr.gov.
By the end of the day-long summit, Lubchenco and her staff had summarized input and created a plan to address concerns.
Among the topics addressed by the group were improved compliance and communication.
Some themes included:
• Increased engagement between the regulated community and the Office of Law Enforcement, which might include greater presence on the docks and educational outreach.
• Increased interactions between NOAA scientists and managers and the regulated community regarding the basis for regulations.
• Greater use of 21st century communication technologies (i.e. real_time communication, access to information, reducing the need for ‘hard_copy’ documentation).
• Easier to understand regulations.
• 24 _hour access to regulatory information, including a question hotline.
• Enforceability of regulations as an early consideration to reduce complexity and increase compliance.
• Establish consistent protocols across regions while recognizing unique circumstances.
• Develop and publish penalty schedules and align penalties with the types and severity of the violation.
• Increase understanding of violations by categorizing them in some understandable manner – suggestions included by region, by type, by fishery management plan, or by social or biological impacts.
• Provide formal oversight – suggestions included current high-level review within NOAA leadership, establishing an ombudsman and involving the Regional Fishery Management Councils and Industry in reviews.
• Create national enforcement priorities but tailor them to regions.
Maggie Raymond, executive director of the Associated Fisheries of Maine in South Berwick, gave a presentation on the difficulties of achieving regulatory compliance in the New England groundfishery, given the complexity of the fishery’s regulations.
For the 19 groundfish stocks, said Raymond, there are five major fishing sub-areas with quota tracking requirements for each stock; pre-trip, daily, trip-level, and weekly reporting requirements (some duplicative); permits, letters of authorization, letters of exemption; and several dozen combinations of vessel monitoring system declaration codes.
“It is not possible for fishermen to monitor the development and implementation of fishing rules, because monitoring the regulatory process is itself a full-time job,” Raymond said. “Technology is inadequate or prohibitively expensive for fishermen to monitor developments while at sea, particularly as we move to more real-time management.”
Raymond’s association had a number of recommendations. These included:
• Translate final rules into plain language;
• Work cooperatively with other fisheries to minimize conflicts and enhance compliance;
• Track and report in-season regulatory changes (possession limits, closures);
• Advocate for elimination of duplicative or obsolete regulations;
• 24/7 response to fishermen at sea facing regulatory situations which require immediate interpretation.
The best way to help fishermen achieve compliance is through education, not penalties, said Raymond.
“Persistent patterns of noncompliance may signal confusion, not intent,” she said.
To address these problems, she said, there needs to be port agent outreach on the docks and 24/7 access to qualified agents.
“NOAA’s regulations are often complex,” Lubchenco said. “The fishing industry is complex with its different vessels, gear types, fishing grounds, and business models. We need to work with the regulated community and assist with improving understanding of rules and regulations. A program that involves all of NOAA’s regional capabilities (Sea Grant and NOAA's Regional Collaboration Teams), that focuses on prevention by leading efforts to better explain regulations, and serves as a resource to compliance officers, will lead to a better–educated regulated community. This will also allow us to discern the one–time minor violators from serial offenders. In addition, the regional fishery management councils must look at enforcement as a critical component of their fishery management plans.” New leadership has been appointed in the Office of General Counsel and the National Marine Fisheries Service, she said.
Two specific actions that NOAA is going to take immediately include:
1) Monies from asset forfeiture will be budgeted, expended, and accounted for with the same level of care as funding appropriated to NOAA. NOAA has developed a corrective action plan for the Asset Forfeiture Fund that includes actions to implement proper budgeting, expenditure tracking, accounting, expenditure criteria, expenditure approvals and external review to assure that we have adhered to our policies.
2) Development of a regional pilot project in New England to better position NOAA Law Enforcement to promote improved compliance and address fairness and transparency concerns. Specifically, NOAA intends to improve engagement with the fishing industry by increasing its dockside presence with additional Enforcement Officers, who will provide routine coordination, liaison, and problem- solving with the fishing industry. NOAA plans to better integrate NOAA, state and other federal law enforcement operations to prevent overlap and ensure the effective use of federal and state resources. NOAA will develop a community outreach plan in the Northeast that integrates regional science, management and enforcement activities.
According to information from NOAA Assistant Administrator for Fisheries Eric Schwaab, the Office of Law Enforcement has a number of intertwined duties. The OLE conducts patrols and investigations; performs constituent outreach and communication services; ensures compliances with vessel management system requirements; and maintains law enforcement partnerships with other federal, state, local and tribal enforcement agencies, as well as industry, non-governmental organization and “friends group” representatives. OLE is comprised of six divisions with 57 field offices, 144 special agents, 18 enforcement officers, and 67 other staffers. In 2009, 4,349 investigations were on the docket.
The summit came about in response to a nationwide review of NOAA enforcement issues, published in January 2010 by the Commerce Department’s Inspector General.
The review said that the enforcement of fishery laws by the National Marine Fisheries Service’s Office for Law Enforcement and NOAA’s Office of General Counsel for Enforcement and Litigation was unfair, heavy-handed, and lacking in transparency.
The “Review of NOAA Fisheries Enforcement Programs and Operations” (http://www.oig.doc. gov/oig/)” was undertaken in response to a June 2009 memo from Lubchenco, who reiterated concerns raised by members of Congress and state officials regarding reports of heavy-handed and unfair enforcement, particularly in NOAA’s Northeast Region.
NOAA falls under the aegis of the Commerce Department.
The review was carried out from June through December 2009. The investigation included interviews with more than 225 people in the Northeast.
North Carolina, Florida, the west coast, and Alaska. They included fishermen, boat captains, industry association representatives, conservation officials, Fishery Management Council members, and NOAA personnel from OLE, GCEL, and other organizations.
The Inspector General’s office “found systemic, nationwide issues adversely affecting NOAA’s ability to effectively carry out its mission of regulating the fishing industry,” the report says. “These issues have contributed significantly to a highly-charged regulatory climate and dysfunctional relationship between NOAA and the fishing industry—particularly in the Northeast Region. If not addressed by NOAA’s senior leadership, these issues have the potential to further strain the tenuous relationship that exists in the Northeast Region, and to become problematic in NOAA’s other regions.” Investigators received specific complaints from dozens of fishermen, including disparate treatment, and excessive fines.