[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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