by Judy Osburn

...As you know, a recent Inspector General-commissioned audit of the NOAA Fisheries Asset Forfeiture Fund (AFF) found extensive waste, fraud and abuse by the agency. It also proved what fishermen have long suspected: allowing NOAA Fisheries to retain the proceeds from forfeitures, seizures, fines and penalties against fishermen gives the agency a perverse incentive to continue its abusive enforcement practices against fishermen. This conflict of interest must be eliminated. While the draft policy¹ includes encouraging elements, it unfortunately falls short of that goal.
 
It is important to reiterate just how badly NOAA Fisheries mismanaged the Asset Forfeiture Fund. The audit found that NOAA Fisheries “administered the AFF in a manner that is neither transparent nor conducive to accountability, thus rendering it susceptible to both error and abuse.” It also found that NOAA Fisheries used the AFF extensively “to cover a variety of expenses which do not appear to be ‘...directly related to investigations and civil or criminal enforcement proceedings,” which they are required to be by law. Such expenditures include over $500,000 spent on international travel in the past four and a half years. Other expenditures include $4.6 million for the purchase of 200 vehicles for only 172 enforcement personnel...; $2.7 million for the purchase of vessels, including $300,000 for an undercover vessel that the manufacturer’s website described as “luxurious” with a “beautifully appointed cabin”; and dozens of purchase cared transactions that were either improper, fraudulent or duplicative.
 
The agency’s draft policy wisely includes proposals to curb some of these abuses,” including prohibitions on the use of AFF funds for:
·         funding for NOAA employee labor, benefits, or awards;
·         funding for vehicle of vessel purchases or leases;
·         funding for travel not related to specific investigations or enforcement proceedings; and
·         funding for equipment such as computers, blackberries, cell phones and furniture.
 
These prohibitions are necessary to help realign NOAA policy with the statutory language in the Mangnuson-Stevens Fisheries Management Act that authorizes the AFF. However, they are not sufficient in that regard.
 
On that note, it is extremely troubling that the agency’s draft policy would allow proceeds from fines, penalties and forfeitures from fishermen to be used to pay the salaries of the Administrative Law Judges (ALJ) deciding cases brought against fishermen. Not only is this use of funds not authorized by the Magnuson-Stevens [Fisheries Management Act that authorizes NOAA’s AFF], it is terrible policy. The right to a trial before an unbiased, impartial judge is a bedrock principle of our democracy. If fisheries law judges are compensated with money from judgments against fishermen, the appearance, if not the practice, of impartiality is fundamentally compromised. ...

An objective of our prior review was to examine the AFF, based on industry concerns raised to that NOAA's fines were excessive, constituting a form of bounty, partly because of NOAA 's ability to retain and use proceeds from its enforcement cases. However, we found that despite OLE reporting a balance of $8.4 million as of December 31,2009, OLE officials could not provide evidence that the AFF had ever been audited. We found that while the AFF's balance included in the Department's overall annual financial statements, internal controls over the fund were weak and were not tested as part of the Department's annual financial statement audit due the relatively small size of the fund within NOAA's overall budget. Accordingly, we could not readily determine how NOAA had utilized the AFF and were unable to address the concerns raised to us regarding its use; therefore, we commissioned the forensic review.

·         No single unit or individual within NOAA has a detailed understanding of the AFF and how it functions.
·         Between collection and disbursement, there is a significant number of “hand-offs” form one NOAA organization to another, without a consistent method of tracking funds.
·         Revenues comprising AFF are co-mingled with other funds, making it nearly impossible to track and oversee receipts and expenditures.
·         OLE does not have a formal budget for its use of the AFF, rather OLE charges whatever expenses it deems appropriate to the AFF. Further, While only a minimal budget (usually less than $1,000) is appropriated to GCEL for its annual operating costs, NOAA’s litigation arm simply “assumes that virtually all of its operating costs are reimbursable from the AFF.”
·         “OLE’s processes for disbursing AFF monies do not ensure that they are legally authorized and are not centrally managed or monitored; instead disbursement processes are different in each division (region).”
·         62 percent of 604 transactions KPMG selected for further analysis did not have required supporting documentation, and 27 percent did not have required approvals.
·         “KPMG identified approximately 4,000 OLE and GCEL transactions that appeared to be split into two or more transactions to circumvent single purchase limits and/or avoid competitive procedures – in violation of Federal Acquisition Regulation requirements.”
·         “KPMG identified nearly 1,200 potential duplicate purchase card transactions, of which 290 were selected for further review. While 15 were confirmed to be duplicate transactions, KPMG was unable to assess over half of those selected for review as they lacked supporting documentation.”
·         “Regarding purchase cards issued to nearly all OLE special agents and enforcement officers, KPMG tested all purchase card transactions where the monthly total value purchased from any single vendor had a value above $3,000. KPMG selected 394 for further review, of which 54 percent (totaling approximately $204,000) did not have required supporting documentation.”
 

It was a year ago today that a federal inspector general exposed how a law enforcement bureau inside the National Oceanic and Atmospheric Administration had, for many years, been using the badge to extract exorbitant fines and weaken the commercial fishing fleet. ...
Subsequent reports from Commerce Department Inspector General Todd Zinser in March and September brought more clear evidence that the agents together with the litigators were using and enjoying the ill-gotten gains.
 
Proceeds from NOAA's Asset Forfeiture Fund — nearly $50 million over 41/2 years — was accumulated and used without clear accounting or oversight, to purchase a fleet of boats and vehicles, finance overseas travel to exotic destinations, Kuala Lumpur, Mozambique, Trondheim, Norway, for international fisheries conventions and fund the day-to-day operations of the Office of Enforcement and Litigation.
...
Locke recruited retired federal judge Charles B. Swartwood III, the chairman of the Massachusetts State Ethics Commission, to undertake a broad and open-ended review of miscarriages to determine if reparations were warranted, and make recommendations to the secretary.
 
But NOAA has still not provided a coherent theory for how a federal police force transformed into a free-wheeling band that, as documented by the IG's report, intimidated targets into paying heavy fines for minor or even technical offenses.
...
“NOAA has worked diligently to address the problems and create a more fair and effective enforcement program and we have accomplished a great deal in the year since the first IG report was released,” said NOAA spokesman Scott Smullen. ...
 
“New internal controls have been established that improve management, oversight, and accountability within NOAA's enforcement programs,” the statement continued. “New policies are in place to more accurately track funds and expenses and we will soon finalize a formal policy that guides how we use the Asset Forfeiture Fund.”
 
... But there is little sense of optimism within the industry or Congress.
 
“It is clear that NOAA has been left to investigate and sanction itself,” said Gloucester Mayor Carolyn Kirk. “We have seen the result — which is arrogance from NOAA officials, a disregard for justice, and disdain for the public and most egregiously, the working people who have been hurt by their actions.”
 
“Not much has changed,” added [Gloucester attorney Stephen] Ouellete, who was recognized in the IG's report for having documented and objected to the full panoply of NOAA law enforcement abuses in a 15-page single-spaced letter to the Congressional delegation in 2001
 
“There has been some attempt to improve transparency in the assessment of fines,” Ouellette said, but the agency has announced a revised regimen with “higher fines than previously and they are now doing so on a national basis.”
 
...
“Those people remain unchanged,” Ouellette said. “There are within the government people who pursue their bureaucratic jobs without concern for the impact on people. This is a sad and scary message. Two years from now they will have returned to their old ways.”
 
...
 
“It is disappointing that not much has changed in light of the Inspector General's report, hopefully, the review of (Special master) Judge Swartwood will move Secretary Locke to effective and deliberative action in favor of our community,” said state Rep. Ann-Margaret Ferrante, who sparked the chain of protest events that led to the letter from Congress that eventually moved Lubchenco to ask the IG to step in.
 
The resistance drew together a bipartisan, bicameral coalition from Maine to North Carolina, the range of law enforcers based in Gloucester.
 
“One year later, it is unacceptable that these egregious abuses of power by NOAA personnel have gone unpunished and uncorrected,” said U.S. Sen. Scott Brown, who was elected a year ago this week to complete the term of the late Sen. Edward M. Kennedy. Kennedy had been the lead advocate of the industry and a signer of the letter to Lubchenco for investigation of NOAA law enforcement.

A full year after the release of the preliminary report from the office of Department of Commerce Inspector General Todd Zinser, there are tons of serious questions still hovering over NOAA law enforcement's oppressive dealings with fishermen and the fishing industry.
 
Yet one answer that seemed clear within days after the January 2010 release of Zinser's findings is even more obvious today.
 
The National Oceanic and Atmospheric Administration has no interest whatsoever in reforming its vindictive regulation and enforcement oversight of the commercial fishing industry, and bringing to justice those who shamed the agency and any sense of American justice.
 
And the sooner that members of Congress — especially those who represent home states to the commercial fishing industry — realize that, the better.
...
Zinser reported wildly disproportionate treatment of New England fishermen, extensive misuse of millions of dollars of an asset forfeiture fund, document shredding and an attempt to shut down the Gloucester Seafood Display auction that even included an unauthorized, after-hours forced entry into the auction that was documented by Gloucester Police. ...
...
This blatant obfuscation and disrespect shown everyone from Congress to Gloucester's fish piers is coming from the top. Lubchenco has no intention of making changes or being transparent to the public that pays her and her agency. She won't, unless Congress forces the issue with the hiring of an independent criminal — not administrative — prosecutor this case has needed from the start.
 
It has been a year, and Lubchenco and her minions have had more than enough time to act.
 
She hasn't. Congress must — now.

Lafreniere said Congress should act immediately to freeze the asset forfeiture fund, which the inspector general identified as a slush fund to pay for cars, boats and travel for the National Oceanic and Atmospheric Administration and for the administrative law judges who were deciding cases and issuing fines.
“Congress should take over the asset forfeiture fund with all due haste,” she said. “Congress should do it because everything [Locke] says he's going to do he does not follow through. They should not leave this up to him.”