Findings:

 1. NOAA senior leadership and headquarters needs to exercise greater management and oversight of regional enforcement operations. 

These include setting priorities, implementing effective management information systems, and utilizing data to inform management decisions and enforcement activities. Given the complexities of NOAA’s mission and organization, the industry, and the current enforcement climate, its establishment of enforcement priorities should involve integration and coordination with its headquarters fisheries management and science center elements, including the Assistant Administrator for NMFS—to whom OLE reports. Such linkage, with corresponding use of both science and enforcement-related data, would better enable NOAA to establish priorities and target its enforcement operations to those areas warranting focused enforcement.

 2. NOAA needs to strengthen policy, procedures, and internal controls to address the industry perception that civil penalties are arbitrary and unfair. 

They concluded that there is significant discretion on the part of individual enforcement attorneys, with minimal guidance on how to exercise that discretion. The Inspector General said "We find it difficult to argue with those who view the process as arbitrary and in need of reform."

They praised recent efforts taken by NOAA in December to "promote transparency, help ensure fairness, and open lines of communication" 

 3. NOAA needs to reassess its workforce (presently 90 percent criminal investigators), to determine if this criminal-enforcement-oriented structure is effective for accomplishing its primarily regulatory mission. 

NOAA's caseload from January 1, 2007 through June 30, 2009, was about 98 percent noncriminal. Their Office of Law Enforcement is 90% criminal investigator.

NOAA made decisions about OLE’s workforce composition 10 years ago, increasing its already predominantly criminal investigator workforce (then 75 percent) to today’s 90 percent. This workforce structure is not the only option available to NOAA; for example, we looked at how some other regulatory enforcement agencies are staffed and our report includes comparative information. In 1998, the then-Assistant Administrator for NMFS desired a different mix, consisting of a greater proportion of uniformed enforcement officers to carry out essential regulatory inspection functions. This did not occur; in fact, today, of OLE’s enforcement workforce of 164 personnel, only 15 are uniformed officers—none of whom are in the Northeast Region. There are also indications in the record that this workforce composition was driven by considerations of the better pay and benefits that apply to federal criminal investigators, rather than by strict mission requirements.

Because it is staffed largely with criminal investigators, OLE’s orientation is to conduct criminal investigations. However, the criminal provisions of the Act are narrowly-focused and nearly all misdemeanors.  Most violations (such as exceeding catch limits) result in civil penalties alone. NOAA requested expansion of the Act’s criminal provisions in conjunction with the 2006 reauthorization process, but such provisions were not adopted.

Our findings underscore a larger challenge for NOAA, one involving complicated issues that have existed and become magnified over decades without being properly addressed. This has become particularly apparent in the Northeast Region. We see this challenge as two-fold: First, as expressed through industry concerns, the fishing laws and regulations are highly complex, making compliance by those in the industry difficult even with the best of intentions. Second, whether NOAA’s workforce and management structure is appropriate to carry out its equally complicated mission of enforcing the regulations with transparent, fair, and well-managed processes. While we recognize that OLE has limited resources to cover an increasingly complex and vast jurisdiction, this underscores the critical importance of ensuring that constrained resources are used to support the most effective enforcement approach.

Follow-up:

The Inspector General determined the following three areas require—and will receive—additional review:

•Fishermen and other industry sources expressed concern to us that NOAA’s fines are excessive, constituting a form of bounty, because NOAA is able to retain the proceeds from its enforcement cases. This is not an uncommon charge against law enforcement agencies granted authority to seize assets. The most effective way to counter such charges is for the agency to demonstrate in a transparent way how the proceeds of its enforcement actions are used. NOAA has the statutory authority to retain proceeds from the civil penalties it imposes and collects, and pursuant to asset forfeitures (such as the sale of seized fish, vessels, etc.) for Magnuson-Stevens Act violations to pay for expenses directly related to investigations and civil or criminal enforcement proceedings.4 We determined that NOAA has an asset forfeiture fund comprising such proceeds, the balance of which NOAA reported as $8.4 million as of December 31, 2009. However, the account under which they are maintained has weak internal controls, and we could not readily determine how NOAA has utilized these funds because while the fund’s balance is included in the Department’s overall financial statements, internal controls over the fund are not tested as part of the Department’s annual financial statement audit, due to the relatively small size of the fund, or as part of the Department-wide financial audit. As a result, we are commissioning a forensic review of the fund as a follow-up, and will issue our findings upon its completion.

•NOAA's General Counsel for Enforcement and Litigation plans specific actions responding to the Inspector General's findings and recommendations.   The Inspector General will carry out follow-up reviews to assess their progress.

•During the review the Inspector General received specific complaints from dozens of fishermen, including alleged abuses of authority by NOAA enforcement personnel, disparate treatment, and excessive fines. They are in the process of examining these complaints and the corresponding enforcement case files to determine whether any additional action is necessary.  

 
Read the complete report