H.R. 2610

Asset Forfeiture Fund Reform and Distribution Act of 2011

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I

112th CONGRESS

1st Session

H. R. 2610

IN THE HOUSE OF REPRESENTATIVES

July 21, 2011

Mr. Frank of Massachusetts (for himself, Mr. Jones, Mr. Tierney, Mr. Guinta, Mr. Markey, Ms. Pingree of Maine, Mr. Keating, Mr. Lynch, Mr. Courtney, Mr. Michaud, Mr. McIntyre, Mr. Pallone, and Mr. McGovern) introduced the following bill; which was referred to the Committee on Natural Resources

A BILL

To amend the Magnuson-Stevens Fishery Conservation and Management Act to reform procedures for the payment of funds from the asset forfeiture fund, and for other purposes.

1.

Short title

This Act may be cited as the Asset Forfeiture Fund Reform and Distribution Act of 2011.

2.

Asset forfeiture fund reform

(a)

In general

Section 311(e) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(e)) is amended—

(1)

by striking (1) Notwithstanding and inserting (1)(A) Notwithstanding; and

(2)

in paragraph (1)—

(A)

by striking may pay from and inserting shall use each of the; and

(B)

by striking (16 U.S.C. 3371 et seq.)— and all that follows through the end of the paragraph and inserting the following:

(16 U.S.C. 3371 et seq.), to make a payment, in the amount of the sum received—

(i)

if the violation occurred in a State, to such State;

(ii)

if the violation did not occur in a State, to the State in which the vessel involved in the violation is homeported; or

(iii)

if the violation did not occur in a State and did not involve a vessel, to the State which is most directly affected by the violation.

(B)

Amounts paid to a State under subparagraph (A) shall be used for research and monitoring activities as determined appropriate by the head of the agency of the State that is responsible for management of marine fisheries. Such activities may include—

(i)

fishery research and independent stock assessments, including cooperative research;

(ii)

socioeconomic assessments, including socioeconomic conditions of fishing communities;

(iii)

data collection, including creation of an information system that will enable timely audit and transmission of data for utilization by researchers and other collaborating institutions;

(iv)

compensation for the costs of analyzing the economic impacts of fishery management decisions and to analyze potential methods to provide targeted compensation to fisherman that have been harmed by such management decisions;

(v)

at-sea and shoreside monitoring of fishing;

(vi)

preparation of fishery impact statements; and

(vii)

other activities that a Regional Fishery Management Council of which the State is a member considers to be necessary to rebuild or maintain sustainable fisheries, ensure healthy ecosystems, provide socioeconomic economic assistance, or maintain fishing communities.

.

(b)

Rule of application

The amendments made by subsection (a) shall apply with respect to amounts received under section 311(e) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(e)) after September 30, 2011.

(c)

Transition rule

(1)

In general

The Secretary may use any amount received as a fisheries enforcement penalty before October 1, 2011, to reimburse appropriate legal fees and costs to a covered person in an amount not to exceed $200,000 per covered person.

(2)

Timing

(A)

Submission of application

A covered person seeking reimbursement of appropriate legal fees and costs under paragraph (1) shall submit to the Secretary an application for such reimbursement—

(i)

in the case of a covered person described in paragraph (4)(B)(i), not later than December 31, 2011; and

(ii)

in the case of a covered person described in paragraph (4)(B)(ii), not later than 1 year after the date on which the Secretary directed that such covered person shall receive a remittance of a fisheries enforcement penalty.

(B)

Determination

Not later than 60 days after receiving an application under paragraph (1), the Secretary shall make a final determination on whether to provide such reimbursement and the amount of any such reimbursement.

(3)

Remaining funds

The Secretary shall use—

(A)

80 percent of the amounts described in paragraph (1) remaining after all reimbursements have been made under such paragraph, for fishery stock assessments in the fishery management region that the Secretary determines to be appropriate; and

(B)

20 percent of such amounts to make payments to States in accordance with section 311(e)(1) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1861(e)(1)).

(4)

Definitions

In this subsection:

(A)

The term appropriate legal fees and costs means the legal fees and costs incurred by a covered person—

(i)

that the Secretary determines were appropriately incurred by the covered person in successfully challenging a fisheries enforcement penalty; and

(ii)

that were incurred not later than 30 days after the date on which the Secretary directed that such penalty shall be remitted to the covered person.

(B)

The term covered person means—

(i)

a person that the Secretary directed shall receive a remittance of a fisheries enforcement penalty in the Decision Memorandum; or

(ii)

a person that—

(I)

received a Notice of Violation and Assessment issued on or after March 17, 1994, for a fisheries enforcement penalty that was settled or otherwise resolved prior to February 3, 2010;

(II)

paid such fisheries enforcement penalty;

(III)

submitted a complaint prior to May 7, 2011, seeking remittance of such civil penalty; and

(IV)

the Secretary directed shall receive a remittance of a fisheries enforcement penalty or a portion of such remittance.

(C)

The term Decision Memorandum means the Secretarial Decision Memorandum issued by the Secretary on May 17, 2011, entitled Decisions regarding Certain NOAA Fisheries Enforcement Cases Based on Special Master Swartwood’s Report and Recommendations.

(D)

The term fisheries enforcement penalty means any fine, penalty, or forfeiture of property imposed for a violation of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.) or of any other marine resource law enforced by the Secretary, including the Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.).

(E)

The term Secretary means the Secretary of Commerce.

3.

Limitation on administrative law judges in the National Oceanic and Atmospheric Administration

(a)

In general

Subject to subsection (b), the Administrator of the National Oceanic and Atmospheric Administration (referred to in this section as NOAA) may not assign any proceeding required to be conducted in accordance with sections 556 and 557 of title 5 to an individual who has served as an administrative law judge for NOAA for a period of five or more years if such proceeding pertains to the same fishery management region to which the majority of such proceedings that the individual presided over within the period pertained.

(b)

Reassignment after five years

Subsection (a) does not apply to an individual who has not served as an administrative law judge for NOAA within a five-year period ending on the date of the assignment described in such subsection.

4.

Definition of fishery management region

In this Act, the term fishery management region means a region under the jurisdiction of a Regional Fishery Management Council established under section 302 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1852).