[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Notices]
[Pages 16386-16387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6869]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XZ29
NOAA Policy on Prohibited and Approved Uses of the Asset
Forfeiture Fund
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice.
-----------------------------------------------------------------------
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. NOAA finalized its policy on March 16, 2011, to
clearly articulate prohibited and approved 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.
SUPPLEMENTARY INFORMATION:
I. NOAA Policy on Prohibited and Approved Uses of the Asset Forfeiture
Fund
Strong management and oversight of the Asset Forfeiture Fund (AFF)
is essential to ensuring the public's trust in the National Oceanic and
Atmospheric Administration's (NOAA) Enforcement Program. While the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act) provides broad statutory authority for use of the AFF,\1\
the Department of Commerce and NOAA are implementing this policy
limiting approved uses as a means of ensuring no conflict of interest--
real or perceived--is associated with the use of the AFF while
continuing to promote a sound enforcement program dedicated to
conserving and protecting our Nation's marine resources. To this end,
the policy provides guidance on the prohibited and approved uses of the
AFF that are consistent with but narrower than that authorized under
applicable legal authorities. The AFF will also be used for compliance
assistance activities, consistent with legal authorities, to better
serve the needs of our stakeholders and improve the way NOAA engages
and interacts with its regulated community.
---------------------------------------------------------------------------
\1\ Memorandum from Cameron F. Kerry, Commerce Department
General Counsel, and Lois Schiffer, NOAA General Counsel, Legal
Opinion Regarding Collection and Use of Fines, Penalties, and
Forfeiture Proceeds Pursuant to Section 311(e)(1) of the Magnuson-
Stevens, Fishery Conservation and Management Act (Feb. 28, 2011).
---------------------------------------------------------------------------
The Department believes, as did Congress in establishing the AFF
and specifying the authorized 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.
To ensure accountability and transparency in AFF accounting, NOAA
has taken a number of actions to improve oversight, management, and
tracking of the AFF in addition to this policy. NOAA has identified and
is tracking AFF monies received and expended, and has centralized the
AFF approval processes for expenditures. In the FY 2012 budget
submission, NOAA will identify and account for the AFF in its annual
budget. For FY 2011, an annual operating budget has been developed for
the AFF based upon this policy, and modifications to that budget must
be approved by the NOAA Chief Financial Officer.
[[Page 16387]]
This policy specifically applies only to funding 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) and expended
by NOAA's enforcement program (OLE and GCEL) under section
311(e)(1)(A)-(F) and 311(f)(4) of the Magnuson-Stevens Act.\2\ NOAA has
established detailed accounting measures to track receipts and control
expenditures under these authorities.
---------------------------------------------------------------------------
\2\ This policy does not address certain proceeds collected and
disbursed pursuant to 16 U.S.C. 973o (South Pacific Tuna Act), 16
U.S.C. 1437(f)(1)(C) (National Marine Sanctuaries Act), and 16
U.S.C. 1824(e)(8) (governing the Western Pacific Insular Areas).
Those proceeds are segregated from the AFF and subject to the
specific uses detailed in those statutory provisions.
---------------------------------------------------------------------------
In particular, NOAA has established separate budget codes to
segregate fines and penalties collected under section 311(f)(4) (for
violations of the Northeast Multispecies Fishery Management Plan)
within the larger AFF to ensure those funds are expended in New England
and subject to the provisions of this policy.
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 and any additional guidance.
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.
Approved Uses
The policy approves the use of the AFF 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 of not less than 20 percent of the penalty
collected or $20,000, whichever is the lesser amount, 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 NOAA;
Expenditures directly related to specific investigations
and enforcement proceedings; such as travel specific to an individual
investigation or individual case or enforcement proceeding,
interviewing expert witnesses, witness participation at trials,
hearings or depositions, expert witness fees, case support contracts,
forensic examinations, or required forensic or evidence handling
supplies;
Attendance at international and domestic 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;
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;
Interagency agreement and contract costs for the
administrative adjudication process, including Administrative Law
Judges;
Costs associated with review of past enforcement actions
in the aggregate (e.g. hiring a third party to review past
investigations and enforcement proceedings conducted by NOAA);
Efforts to combat international unregulated and unreported
fishing through annual funding to the International Monitoring,
Control, and Surveillance Network ; and,
Costs related to independent audits of the fund to ensure
proper collection and use of fines, penalties, and forfeiture proceeds.
Compliance Assistance
The Department is implementing activities to better serve the needs
of its stakeholders and improve the way NOAA engages and interacts with
its regulated community. This new component is aimed at improving and
expanding NOAA's compliance assistance, collaboration, and outreach
activities. Activities funded from the AFF may include, but are not
limited to:
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.
Consistent with section 311(e)(1)(F) of the Magnuson-Stevens Act,
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 Northeast Multispecies specifically, through
enforcement proceeds available to the Secretary under section 311(f)(4)
of the Magnuson-Stevens Act.
Dated: March 17, 2011.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine
Fisheries Service.
[FR Doc. 2011-6869 Filed 3-18-11; 4:15 pm]
BILLING CODE 3510-22-P