While the National Oceanic and Atmospheric Administration's law enforcement branch has made many improvements over the past two years, the project undertaken in response to industry, local, state and federal protests and an inspector general's revelations is lagging, according to a new report by the Commerce Department inspector general.
The report, received by the Times on Friday, tracks progress on 47 action items from the blockbuster findings of Inspector General Todd Zinser, which were released in January 2010 and exposed a law enforcement system that routinely denied fishermen and industry their rights, and subjected some to excessive fines and undue harassment.
The new report indicated that NOAA has decided against some recommended reforms — it will not create an ombudsman's position, for one — and has yet to carry out 13 other reforms to which it agreed.
"We found that NOAA has taken some positive steps in addressing challenges identified in our reviews," Ann C. Eilers, principal assistant inspector general for audit and evaluation, wrote to NOAA Administrator Jane Lubchenco.
The first wave of IG reports that began in January 2010 led to a wholesale restaffing at the top of NOAA's Office of Law Enforcement, and was followed by a Cabinet-level apology and more than $650,000 in reparations to victims in Gloucester and New Bedford.
Yet no one viewed as responsible for NOAA enforcement's wrongful actions has been fired or otherwise punished. Threads of the most egregious cases — claims to recoup legal fees — remain unresolved and bitterly disputed.
While attempting to make amends, Lubchenco and then-Commerce Secretary Gary Locke — now ambassador to China — promised reforms to bring structure, accountability, consistency and equity to the mostly administrative enforcement requirements of fisheries management.
Highlighted achievements of the followup report issued Tuesday include putting "all proposed charges" for alleged violations and settlements through "high-level review," and shifting the burden of proof for justifying a settlement or sanction to NOAA, rather than placing that burden on the accused in cases before administrative law judges.
NOAA earlier this year jettisoned its scandalized relationship with the Coast Guard Administrative Law Judge System, and now brings disputed cases to the Environmental Protection Agency's judicial system.
But Eilers wrote that NOAA's case management system, which involves two software systems, one developed in house, the other "an off-the-shelf" web-based system, is undependable.
The police and agents use one system while the litigators use another.
Of 144 cases examined by the IG, in 12 cases (or 8.3 percent), the agents and enforcement sections were operating with different information, while in 15 cases (or 10.4 percent) the system had recorded an incorrect disposition or status, the IG's review found.
By region, the Northwest case management showed no mistakes and the Northeast fared well, but in the Southeast, of 66 cases examined, nine cases — or 13.6 percent — showed flaws in the accuracy of the tracking.
The unreliability of the data, a recurring theme in the IG's first wave of reports, inspired the largest narrative section of the new report.
"In several instances, the (legal) section had marked the status of a case as 'open' while the Office of Law Enforcement (or agents) had the same case marked as 'closed' — or vice versa," the IG's report noted.
In a response to the draft findings by Eilers, Sam Rauch, the acting assistant administrator of NOAA Fisheries, acknowledged the tracking and computer software problems, but noted that "all software upgrades are currently on hold pending completion of corrective security measures in response to (earlier IG findings)."
Rauch also noted that, using attrition, NOAA is slowly shifting toward a balance between criminal agents and administrative enforcement officers.
Cited as a core reason why NOAA law enforcers treated fishermen as criminals, the IG found that nearly all the agents as of 2009 had come to NOAA from police forces or other crime-fighting assignments.
"The realignment process began with the January 2010 freeze on hiring criminal investigators that still remains in effect," Rauch wrote.
Less than a month ago, the IG announced he was initiating an investigation into rule-making, which was undertaken at the request of Congressmen John Tierney and Barney Frank, who repeatedly expressed suspicion that non-government organizations, from green groups to their funding sources in foundations, had gained an improper influence on NOAA rule-making, especially at the level of the New England Regional Fishery Management Council.
"NOAA has taken a number of significant steps, but by their nature these action items will always be ongoing and open for improvement," said NOAA spokesman Scott Smullen.
"Among the more complex and challenging of the remaining actions that have yet to be completed, such as finalizing a national priorities plan and implementing a national workforce plan, NOAA has made considerable progress to date and is on a solid path toward successful implementation."
Not everyone dealing with the system agrees with that assessment.
"The fact that one-third of the tasks are not completed is troubling enough," New Bedford-based fisheries attorney Pamela Lafreniere told the Times on Friday, "but an overview of what has not been completed is most troubling.
"From all appearances," she said, "not enough progress has been made."
Richard Gaines can be reached at 978-283-7000 x3464, or firstname.lastname@example.org.