Apparently, Members of Congress have not been reading our Overcriminalization blogs. How do we know this? Because the International Fisheries Stewardship and Enforcement Act (IFSEA) is the embodiment of much of what our blogs have highlighted is wrong with legislation.

The Senate sponsors of IFSEA didn’t have the votes to pass it as a standalone bill when it was introduced in January 2011, so they tried to attach it to an appropriations bill, the Coast Guard Authorization Act of 2012. They did this believing the appropriations bill had a better chance of becoming law. Appropriations bills should, of course, not include new substantive laws.

IFSEA was purportedly designed to help with the enforcement of international fishing standards, but that is not all it does. The IFSEA would also:

  • Increase without justification already severe criminal penalties;
  • Expand the authority of the National Oceanic and Atmospheric Administration (NOAA) to promulgate new regulations that provide for criminal penalties for violations; and
  • Provide NOAA with additional funding for law enforcement purposes.

Thanks to the resolve of Senator Rand Paul (R–KY), IFSEA was removed from the Coast Guard Authorization Act. Senator Paul should be applauded for being concerned about overcriminalization, for practicing what he preaches, and for protecting the public against bad public policy.

Under the proposed law, penalties for 12 statutes that deal with fishing conservation (who can fish, where they can fish, which fish can be caught, how many can be caught, etc.) would have increased from six months in jail to up to five years. While we realize that many elected officials wish to portray themselves as “tough on crime” and “deeply committed to the environment,” isn’t the possibility of a six-month prison sentence and hefty criminal fines a sufficient deterrent already? Is it really necessary to threaten people with going to jail for five years because they fished in the wrong area, caught the wrong kind of fish, or exceeded their legal catch limit?

IFSEA would have given NOAA an additional $30 million per year to implement the program. NOAA already has a long history of abusing its power by threatening fishermen—and now marine biologists—with prison time in order to squeeze huge fines out of them.

No fewer than six inspector general reports, dating back to 1998, have criticized NOAA’s enforcement function. Three of them have specifically recommended that NOAA’s criminal investigative capacity be reduced. In a January 2010 report, the inspector general stated:

While we recognize [the Office of Law Enforcement’s] need to maintain a criminal investigative capacity, its caseload reflects that its current staffing is disproportionate to agency function and operational need, particularly compared with other agencies with similar mission profiles and enforcement responsibilities.

In light of these recommendations and NOAA’s checkered enforcement history, giving them additional authority and more public money to engage in questionable enforcement practices strikes us as misguided.

The statute would also have allowed NOAA to adopt any regulation “as may be necessary to carry out this section or any Act to which this section applies.”

Translation: “We think this is bad but don’t know what to do, so you, agency regulators, should deal with this issue however you see fit.” We should expect to see a large number of punts during the football season, but we prefer to see them in a football stadium on the weekends, not in Congress during the work week.

It is estimated that there are currently more than 300,000 criminal regulations buried within the Code of Federal Regulations. As things stand, it is already impossible for anyone to know all or even nearly all of these criminal laws that could potentially land someone in prison. Were it to pass, IFSEA would only add to this problem.

In short, IFSEA would exacerbate the already massive overcriminalization problem. Thank you, Senator Paul, for standing strong and stopping the passage of this bill. You have kept innocent and unwary people from being unjustly investigated by an agency that needs additional restraint, not additional power.