National Marine Fisheries Service
Improvements Are Needed in the Federal Process Used to Protect Marine Mammals from Commercial Fishing Gao ID: GAO-09-78 December 8, 2008Because marine mammals, such as whales and dolphins, often inhabit waters where commercial fishing occurs, they can become entangled in fishing gear, which may injure or kill them--this is referred to as "incidental take." The 1994 amendments to the Marine Mammal Protection Act (MMPA) require the National Marine Fisheries Service (NMFS) to establish take reduction teams for certain marine mammals to develop measures to reduce their incidental takes. GAO was asked to determine the extent to which NMFS (1) can accurately identify the marine mammal stocks--generally a population of animals of the same species located in a common area--that meet the MMPA's requirements for establishing such teams, (2) has established teams for those stocks that meet the requirements, (3) has met the MMPA's deadlines for the teams subject to them, and (4) evaluates the effectiveness of take reduction regulations. GAO reviewed the MMPA, and NMFS data on marine mammals, and take reduction team documents and obtained the views of NMFS officials, scientists, and take reduction team members.
Significant limitations in available data make it difficult for NMFS to accurately determine which marine mammal stocks meet the statutory requirements for establishing take reduction teams. For most stocks, NMFS relies on incomplete, outdated, or imprecise data on stocks' population size or mortality to calculate the extent of incidental take. As a result, the agency may overlook some marine mammal stocks that meet the MMPA's requirements for establishing teams or inappropriately identify others as meeting them. NMFS officials told GAO they are aware of the data limitations but lack funding to implement their plans to improve the data. On the basis of NMFS's available information, GAO identified 30 marine mammal stocks that have met the MMPA's requirements for establishing a take reduction team, and NMFS has established six teams that cover 16 of them. For the other 14 stocks, the agency has not complied with the MMPA's requirements. For example, false killer whales, found off the Hawaiian Islands, have met the statutory requirements since 2004, but NMFS has not established a team for them because, according to NMFS officials, the agency lacks sufficient funds. NMFS officials told GAO that the agency has not established teams for the other stocks that meet the MMPA's requirements for reasons such as the following: (1) data on these stocks are outdated or incomplete, and the agency lacks funds to obtain better information and (2) causes other than fishery-related incidental take, such as sonar used by the U.S. Navy, may contribute to their injury or death, therefore changes to fishing practices would not solve the problem. For the five take reduction teams subject to the MMPA's deadlines, the agency has had limited success in meeting the deadlines for establishing teams, developing draft take reduction plans, and publishing proposed and final plans and regulations to implement them. For example, NMFS established three of the five teams--the Atlantic Large Whale, Pelagic Longline, and Bottlenose Dolphin--from 3 months to over 5 years past the deadline. NMFS officials attributed the delays in establishing one of the teams to a lack of information about stock population size and mortality, which teams need to consider before developing draft take reduction plans. NMFS does not have a comprehensive strategy for assessing the effectiveness of take reduction plans and implementing regulations that have been implemented. NMFS has taken some steps to define goals, monitor compliance, and assess whether the goals have been met, but shortcomings in its approach and limitations in its performance data weaken its ability to assess the success of its take reduction regulations. For example, without adequate information about compliance, if incidental takes continue once the regulations have been implemented, it will be difficult to determine whether the regulations were ineffective or whether the fisheries were not complying with them.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-09-78, National Marine Fisheries Service: Improvements Are Needed in the Federal Process Used to Protect Marine Mammals from Commercial Fishing
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Report to the Chairman, Committee on Natural Resources, House of
Representatives:
United States Government Accountability Office:
GAO:
December 2008:
National Marine Fisheries Service:
Improvements Are Needed in the Federal Process Used to Protect Marine
Mammals from Commercial Fishing:
GAO-09-78:
GAO Highlights:
Highlights of GAO-09-78, a report to the Chairman, Committee on Natural
Resources, House of Representatives.
Why GAO Did This Study:
Because marine mammals, such as whales and dolphins, often inhabit
waters where commercial fishing occurs, they can become entangled in
fishing gear, which may injure or kill them––this is referred to as
’incidental take.“ The 1994 amendments to the Marine Mammal Protection
Act (MMPA) require the National Marine Fisheries Service (NMFS) to
establish take reduction teams for certain marine mammals to develop
measures to reduce their incidental takes. GAO was asked to determine
the extent to which NMFS (1) can accurately identify the marine mammal
stocks”generally a population of animals of the same species located in
a common area”that meet the MMPA‘s requirements for establishing such
teams, (2) has established teams for those stocks that meet the
requirements, (3) has met the MMPA‘s deadlines for the teams subject to
them, and (4) evaluates the effectiveness of take reduction
regulations. GAO reviewed the MMPA, and NMFS data on marine mammals,
and take reduction team documents and obtained the views of NMFS
officials, scientists, and take reduction team members.
What GAO Found:
Significant limitations in available data make it difficult for NMFS to
accurately determine which marine mammal stocks meet the statutory
requirements for establishing take reduction teams. For most stocks,
NMFS relies on incomplete, outdated, or imprecise data on stocks‘
population size or mortality to calculate the extent of incidental
take. As a result, the agency may overlook some marine mammal stocks
that meet the MMPA‘s requirements for establishing teams or
inappropriately identify others as meeting them. NMFS officials told
GAO they are aware of the data limitations but lack funding to
implement their plans to improve the data.
On the basis of NMFS‘s available information, GAO identified 30 marine
mammal stocks that have met the MMPA‘s requirements for establishing a
take reduction team, and NMFS has established six teams that cover 16
of them. For the other 14 stocks, the agency has not complied with the
MMPA‘s requirements. For example, false killer whales, found off the
Hawaiian Islands, have met the statutory requirements since 2004, but
NMFS has not established a team for them because, according to NMFS
officials, the agency lacks sufficient funds. NMFS officials told GAO
that the agency has not established teams for the other stocks that
meet the MMPA‘s requirements for reasons such as the following: (1)
data on these stocks are outdated or incomplete, and the agency lacks
funds to obtain better information and (2) causes other than fishery-
related incidental take, such as sonar used by the U.S. Navy, may
contribute to their injury or death, therefore changes to fishing
practices would not solve the problem.
For the five take reduction teams subject to the MMPA‘s deadlines, the
agency has had limited success in meeting the deadlines for
establishing teams, developing draft take reduction plans, and
publishing proposed and final plans and regulations to implement them.
For example, NMFS established three of the five teams”the Atlantic
Large Whale, Pelagic Longline, and Bottlenose Dolphin”from 3 months to
over 5 years past the deadline. NMFS officials attributed the delays in
establishing one of the teams to a lack of information about stock
population size and mortality, which teams need to consider before
developing draft take reduction plans.
NMFS does not have a comprehensive strategy for assessing the
effectiveness of take reduction plans and implementing regulations that
have been implemented. NMFS has taken some steps to define goals,
monitor compliance, and assess whether the goals have been met, but
shortcomings in its approach and limitations in its performance data
weaken its ability to assess the success of its take reduction
regulations. For example, without adequate information about
compliance, if incidental takes continue once the regulations have been
implemented, it will be difficult to determine whether the regulations
were ineffective or whether the fisheries were not complying with them.
What GAO Recommends:
GAO is proposing matters for congressional consideration, including
requiring NMFS to report on the data, resource, and other limitations
that prevent it from meeting the MMPA‘s requirements for take reduction
teams; and recommending that NMFS develop a comprehensive strategy for
assessing plan effectiveness. The agency agreed with our recommendation
to develop such a strategy.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-09-78]. For more
information, contact Anu Mittal at (202) 512-3841 or mittala@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
NMFS Faces Significant Challenges in Accurately Identifying Marine
Mammal Stocks That Meet the Statutory Requirements for Establishing
Take Reduction Teams because of Data Limitations:
NMFS Has Not Established Teams for Many Marine Mammals That Have Met
the Statutory Requirements of the MMPA for a Variety of Reasons:
NMFS Has Had Limited Success in Meeting the Statutory Deadlines for
Take Reduction Teams for a Variety of Reasons:
NMFS Does Not Have a Comprehensive Strategy for Evaluating the
Effectiveness of Take Reduction Regulations:
Conclusions:
Matters for Congressional Consideration:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Commercial Fishing Techniques and How Marine Mammals Are
Affected:
Appendix III: GAO Contact and Staff Acknowledgments:
Tables:
Table 1: MMPA's Take Reduction Team Requirements and Deadlines:
Table 2: Marine Mammals That Have Met the MMPA's Requirements for
Establishing a Take Reduction Team and for Which NMFS Has Established a
Team:
Table 3: Marine Mammals Stocks That Have Met the MMPA's Requirements
for Establishing a Take Reduction Team, but NMFS Has Not Established a
Team:
Table 4: Delays in Establishing Take Reduction Teams:
Table 5: Delays in Developing and Submitting Draft Take Reduction
Plans:
Table 6: Delays in Publishing Proposed Take Reduction Plans:
Table 7: Delays in Publishing Final Take Reduction Plans:
Table 8: Confidence Intervals for Estimates Based on GAO's Review of
Selected Stock Assessment Reports:
Table 9: Commercial Fishing Techniques and How Marine Mammals Are
Affected:
Figures:
Figure 1: Determining Strategic Status by Comparing Human-Caused
Mortality to the Maximum Removal Level:
Figure 2: Information Limitations Make It Difficult to Accurately
Determine Strategic Status:
Abbreviations:
CV: coefficient of variation:
ESA: Endangered Species Act:
MMPA: Marine Mammal Protection Act:
NMFS: National Marine Fisheries Service:
NOAA: National Oceanic and Atmospheric Administration:
OMB: Office of Management and Budget:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
December 8, 2008:
The Honorable Nick J. Rahall II:
Chairman:
Committee on Natural Resources:
House of Representatives:
Dear Mr. Chairman:
Marine mammals--such as whales, dolphins, and porpoises--often swim or
feed in waters where commercial fishing occurs and can become entangled
in fishing gear, which may seriously injure or kill them--this is
referred to as "incidental take." The National Oceanic and Atmospheric
Administration's (NOAA) National Marine Fisheries Service (NMFS)
estimates that commercial fishing operations result in thousands of
such incidental takes each year. For example, large whales, such as the
North Atlantic right whale, may become entangled in the lines that
connect lobster traps; smaller pilot whales may become entangled in
longline fishing gear used to catch fish such as tuna or swordfish; and
dolphins and porpoises may become entangled in commercial fishing nets
used to catch sardines, salmon, or cod. For at least five marine
mammals, incidental takes as a result of commercial fishing operations
are occurring at unsustainable levels.[Footnote 1]
The 1994 amendments to the Marine Mammal Protection Act (MMPA) of 1972
require NMFS to establish take reduction teams to develop regulatory or
voluntary measures for the reduction of incidental mortality and
serious injury to marine mammals during the course of commercial
fishing operations. Under the MMPA, NMFS, in general, must establish
take reduction teams for each marine mammal strategic stock that
interacts with a Category I or Category II commercial fishery.
[Footnote 2] These key terms are defined as follows:
* A commercial fishery is a group of fishermen who use similar gear to
catch the same types of fish, in a common geographic area, and then
sell them.
* A Category I fishery is a commercial fishery that has frequent
incidental takes of marine mammals, while a Category II fishery has
occasional incidental takes.
* A stock is a group of marine mammals of the same species located in a
common spatial arrangement that interbreed when mature.
The MMPA defines a marine mammal stock as strategic, if it (1) is
listed as threatened or endangered under the Endangered Species Act
(ESA), (2) is declining and likely to be listed as a threatened species
under the ESA within the foreseeable future, (3) is designated as
depleted under the MMPA, or (4) has a level of direct human-caused
mortality and serious injury that exceeds the stock's potential
biological removal level. In this report we use the term "maximum
removal level," rather than potential biological removal level; this
term is defined as the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
population.[Footnote 3]
NMFS periodically surveys marine mammal populations to determine
whether they are growing, remaining stable, or declining, so that it
can calculate the maximum removal level. The results of this research
are published in annual stock assessment reports for 156 stocks that
fall under NMFS's jurisdiction. Additionally, NMFS annually publishes
lists that classify commercial fisheries as Category I, II, or III
based on data such as those from observers who are placed on boats,
logbooks that are kept by fishermen, and data gathered by scientists at
universities and government agencies, among others, documenting
instances where marine mammals are found stranded or dead as a result
of fishing or other human causes.[Footnote 4]
According to the MMPA, take reduction teams must include
representatives from the commercial fishing industry, Regional Fishery
Management Councils, interstate fisheries commissions, environmental
groups, academic and scientific organizations, and state and federal
governments. Once NMFS has established a team, the members meet, review
the available information regarding marine mammal takes and fisheries
interactions, and develop draft take reduction plans. The plans
recommend regulatory and voluntary measures, such as modifications in
fishing gear or practices that should reduce serious injury or
mortality of marine mammals caused by commercial fishing. As specified
in the MMPA, NMFS then translates these draft plans into final take
reduction plans and implementing regulations.
The 1994 amendments to the MMPA set several deadlines for establishing
take reduction teams, developing draft take reduction plans, and
publishing proposed and final plans and implementing regulations.
Specifically,
* NMFS must establish a take reduction team within 30 days after a
final stock assessment report indicates that a stock is strategic and
it is listed in the current list of fisheries as interacting with a
Category I or II fishery.
* Take reduction team members must develop a draft plan and submit the
plan to NMFS within 6 months after the take reduction team is
established.[Footnote 5]
* NMFS must publish a proposed take reduction plan in the Federal
Register within 60 days of receiving the team's draft plan.[Footnote 6]
* NMFS must hold a public comment period on the proposed take reduction
plan for up to 90 days after its publication.
* NMFS must publish a final take reduction plan in the Federal Register
60 days after the public comment period on the proposed plan ends.
As Congress prepares to consider the reauthorization of the MMPA, you
asked us to determine the extent to which (1) available data allow NMFS
to accurately identify the marine mammal stocks that meet the MMPA's
requirements for establishing take reduction teams; (2) NMFS has
established take reduction teams for those marine mammal stocks that
meet the statutory requirements; (3) NMFS has met the statutory
deadlines established in the MMPA for the take reduction teams subject
to the deadlines, and the reasons for any delays; and (4) NMFS has
developed a comprehensive strategy for evaluating the effectiveness of
the take reduction plans that have been implemented.
To determine the extent to which available data allow NMFS to identify
the marine mammal stocks that meet the MMPA's requirements for
establishing take reduction teams, we identified several key data
elements, such as human-caused mortality estimates and maximum removal
levels, that NMFS uses to determine whether a marine mammal stock meets
the statutory requirements for establishing a take reduction team, as
well as the criteria NMFS uses to assess data quality for these key
data elements. We then reviewed all of the 2007 marine mammal stock
assessment reports and analyzed reports for the 113 stocks not
currently covered by take reduction teams and not listed as threatened
or endangered species or designated as depleted species. After removing
those that lacked human-caused mortality estimates or maximum removal
levels, we reviewed a sample of the remaining 74 stocks that did have
these determinations to assess the reliability of the information used
to determine human-caused mortality estimates and the maximum removal
levels. We reviewed a sample of the reports for these stocks to
identify any data uncertainties that may limit NMFS's ability to
accurately identify stocks that meet the statutory requirements for
establishing take reduction teams. To determine the extent to which
NMFS has established take reduction teams, we analyzed stock assessment
reports and lists of fisheries from 1995 through 2008 to identify
marine mammal stocks that meet the statutory requirements but are not
currently covered by a team. Additionally, we interviewed NMFS
officials and obtained documentation on the stocks for which the agency
has established take reduction teams. To identify the extent to which
NMFS has met the deadlines established in the MMPA, we identified the
deadlines listed in the MMPA for take reduction teams and obtained
documentation, such as take reduction plans and implementing
regulations, to determine whether NMFS met the statutory deadlines. To
identify the reasons for any delays in meeting the statutory deadlines,
we interviewed the NMFS staff members that coordinate the take
reduction teams, staff from NOAA's Office of General Counsel, marine
biologists in NMFS's Fishery Science Centers, and members of each of
the five take reduction teams subject to the MMPA's deadlines.[Footnote
7] To identify the extent to which NMFS has developed a comprehensive
strategy for evaluating the effectiveness of its take reduction plans,
we reviewed data from stock assessment reports on the level of fishery-
related mortality and serious injury as well as maximum removal levels
before and after a plan's implementation. We also interviewed NMFS
officials, including agency staff that coordinate take reduction teams,
regarding how they assess the effectiveness of take reduction plans. We
conducted this performance audit from September 2007 to December 2008
in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives. Appendix I provides
additional detail on our scope and methodology.
Results in Brief:
Significant limitations in available information make it difficult for
NMFS to accurately determine which marine mammal stocks meet the
statutory requirements for establishing take reduction teams. For most
stocks, NMFS relies on incomplete, outdated, or imprecise information
about human-caused mortality or the maximum removal level to calculate
whether incidental take is above acceptable levels and thereby
determine if the stocks meet the MMPA's definition of "strategic"--one
of two triggers for establishing a take reduction team. For example,
our review of stock assessment reports found that NMFS did not have a
human-caused mortality estimate or a maximum removal level for 39 of
113 marine mammal stocks, making it impossible to determine their
strategic status in accordance with the MMPA's requirements. For the
remaining 74 stocks, NMFS has some data to determine whether incidental
takes exceeded acceptable levels, but these data have significant
limitations that call into question their accuracy. Specifically, for
an estimated 11 of the 74 stocks, the maximum removal levels were based
on information that was 8 years old or older. Marine mammal research
has shown that using such outdated data increases the possibility that
significant population declines could have occurred of which NMFS is
unaware. In addition, our review of a sample of stock assessment
reports from 2007 frequently found that NMFS used population size and
fishery-related mortality estimates that were less precise than
recommended by the agency's own guidance, decreasing the likelihood
that strategic status determinations based on this information are
accurate. Relying on incomplete, outdated, or imprecise information
about human-caused mortality and maximum removal levels may lead NMFS
to overlook some marine mammal stocks that meet the statutory
requirements for establishing take reduction teams or inappropriately
identify others as meeting them. NMFS officials told us that funding
constraints limit their ability to gather sufficient data, although the
agency has taken some steps to identify its data needs. For example, in
a 2004 study, NMFS identified the actions and resources needed to
improve the marine mammal stock assessment data that support MMPA
decisions; however, officials told us that they have not received the
resources necessary to complete the actions identified in the report.
On the basis of NMFS's available information, we identified 30 marine
mammal stocks that met the MMPA's requirement for establishing a take
reduction team, and NMFS has established six teams that cover 16 of
them. For the 14 other marine mammal stocks for which the agency's
available information shows them to be strategic and interacting with
Category I or II fisheries, NMFS has not complied with the MMPA's
requirement to establish take reduction teams and, in some cases, has
not been in compliance for several years. NMFS officials told us that
the agency has not established teams for these 14 marine mammal stocks
for various reasons. First, the agency lacked sufficient funds to
establish a team for one marine mammal stock--the Hawaiian stock of
false killer whales--that has met the statutory requirements since
2004. Second, for 8 of the 14 stocks, NMFS information about the
stocks' population size or mortality is outdated or incomplete, and the
agency lacks funds to obtain better information. Third, for 4 of the 14
stocks, commercial fisheries account for few or no incidental takes,
and other causes, such as acoustic activities, for example, sonar used
by the U.S. Navy, may contribute to the serious injury and mortality of
some of these stocks, so establishing teams for them would not be
appropriate. Finally, the population size of one marine mammal stock--
the Central North Pacific stock of humpback whales--is increasing;
therefore establishing a team for this stock is a low priority.
For the five take reduction teams subject to the MMPA's deadlines, NMFS
has had limited success in meeting them for various reasons.
Specifically,
* NMFS missed statutory deadlines for establishing three of the five
teams--the Atlantic Large Whale, Pelagic Longline, and Bottlenose
Dolphin--by 3 months to more than 5 years. According to NMFS officials,
the reason for delays in establishing one of these three teams was a
lack of information, such as information on stocks' population size and
mortality, that team members need to consider before developing draft
take reduction plans.
* Two of the five teams did not submit their draft take reduction plans
to NMFS within the statutory deadlines. In one case the team missed the
deadline because it had difficulty reaching consensus on a plan, and in
the other case there was an unexpected death of a key team member 1
week before the plan was due.
* NMFS did not publish proposed take reduction plans in accordance with
the statutory deadlines for the five teams. According to agency
officials, these deadlines were missed because of the time needed to
complete the federal rulemaking process, among other things. However,
NMFS complied with the statutory deadline for the public comment
periods for the five teams that have reached this stage of the process.
* NMFS missed the statutory deadline for publishing final take
reduction plans and implementing regulations for four of the five
teams--the Atlantic Large Whale, Pacific Offshore Cetacean, Bottlenose
Dolphin, and the Pelagic Longline--by 8 days to over a year. NMFS
attributed the delays to the time necessary to respond to the public
comments it received on the proposed plan before it could publish the
final plan, among other things.
NMFS does not have a comprehensive strategy for assessing the
effectiveness of take reduction plans and implementing regulations once
they have been implemented. The Government Performance and Results Act
of 1993 provides a foundation for examining agency performance goals
and results. Our work related to the act and the experience of leading
organizations have shown the importance of developing a strategy for
assessing performance that includes, among other things, program
performance goals that identify the desired results of program
activities and reliable information that can be used to assess results.
In the context of NMFS's efforts to measure the success of the
regulations that result from take reduction plans, we believe such a
strategy would include, at a minimum, (1) performance goals that
identify the desired outcomes of the take reduction regulations; (2)
steps for assessing the effectiveness of potential take reduction
regulations, such as fishing gear modifications, in achieving the
goals; (3) a process for monitoring the fishing industry's compliance
with the requirements of the take reduction regulations; and (4)
reliable data assessing the regulations' effect on achieving the goals.
Instead of such a comprehensive strategy, we found that although NMFS
uses short-and long-term goals established by the MMPA to evaluate the
success of take reduction regulations, these goals and the data that
NMFS uses to measure the impact of the take reduction regulations have
a number of limitations. For example, according to officials we spoke
with, it is difficult to assess the impact of the regulations in a 6-
month period, as required by the MMPA's short-term goal. In addition,
while NMFS has taken steps to identify the impact of proposed take
reduction regulations prior to their implementation, the agency has
limited information about the fishing industry's compliance with the
regulations once they have been implemented. As a result, when
incidental takes occur in fisheries covered by take reduction
regulations, it is difficult for NMFS to determine whether the
regulations were not effective in meeting the MMPA's goals or whether
the fisheries were not complying with the regulations.
To facilitate the oversight of NMFS's progress and capacity to meet the
statutory requirements under the MMPA for take reduction teams,
Congress may wish to consider (1) directing NMFS to report on the key
factors that affect its ability to meet the MMPA's requirements for
establishing teams and meeting statutory deadlines, including data,
resources, or other limitations; (2) amending the statutory
requirements in the MMPA for establishing a take reduction team to
stipulate that not only must a marine mammal stock be strategic and
interacting with a Category I or II fishery but that the fishery with
which the marine mammal stock interacts causes at least occasional
incidental mortality or serious injury of that particular marine mammal
stock; and, (3) amending the MMPA to ensure that the statutory
deadlines give NMFS adequate time to complete take reduction plans and
implementing regulations. We are also recommending that NMFS develop a
comprehensive strategy for assessing the effectiveness of each take
reduction plan and implementing regulations. In its comments on a draft
of this report NOAA agreed with our recommendation to develop such a
comprehensive strategy.
Background:
The MMPA was enacted in 1972 to ensure that marine mammals are
maintained at or restored to healthy population levels. Among other
things, this act established the Marine Mammal Commission, which must
continually review the condition of marine mammal stocks and recommend
to the appropriate federal officials and Congress any steps it deems
necessary or desirable for the protection and conservation of marine
mammals.[Footnote 8] In 1994, the MMPA was amended to create a process
for establishing take reduction teams to manage incidental takes--
serious injury or death--in the course of commercial fishing
operations. Commercial fishing in areas where marine mammals swim,
feed, or breed is considered one of the main human causes of incidental
take. Marine mammals can become entangled in fishing equipment such as
nets or hooks, although specific threats vary by the fishing techniques
used. Appendix II provides details on commercial fishing techniques
that can result in incidental take, including gillnetting, longlining,
trap/pot fishing, and trawling, as well as examples of the marine
mammals affected.
Under the 1994 amendments to the MMPA, NMFS must establish take
reduction teams when two requirements are satisfied: (1) NMFS
designates the stock as strategic in a final stock assessment report,
and (2) the stock interacts with a commercial fishery listed as
Category I or II in the current list of fisheries.[Footnote 9]
According to the MMPA, if there is insufficient funding to develop and
implement take reduction plans for all stocks that meet the
requirements, NMFS should establish teams based on specified
priorities.[Footnote 10] For the majority of stocks, NMFS determines
strategic status by comparing whether human-caused mortality exceeds
the maximum removal level (see figure 1).[Footnote 11] Human-caused
mortality and serious injury (hereafter known as human-caused
mortality) is estimated by adding fishery-related mortality estimates
to mortality caused by other human sources, as follows:
* Fishery-related mortality and serious injury estimates (hereafter
known as fishery-related mortality estimates) are generated based on
data from NMFS's fishery observer programs, whereby individuals board
commercial fishing vessels and document instances of incidental take.
NMFS also uses anecdotal information from scientists, fishermen, and
others about additional incidental take to make these estimates.
* Mortality and serious injury caused by other human sources such as
collisions with large ships or authorized subsistence hunting of marine
mammals by Alaska natives.
The maximum removal level--technically known as the potential
biological removal level--is calculated for each marine mammal stock by
multiplying three factors:
* The minimum population estimate (hereafter known as the population
size estimate) for the specific stock of marine mammals.[Footnote 12]
* Two adjustments designed to (1) factor in the expected rate of
natural growth for a stock and (2) reduce the risks associated with
data uncertainties, especially for stocks listed as endangered or
threatened or designated as depleted. By altering the values of these
adjustments, NMFS can make the maximum removal level more conservative-
-meaning that fewer incidental takes will be allowed--in cases of
uncertain data, and therefore make it less likely that they will
identify a stock as nonstrategic.
Figure 1: Determining Strategic Status by Comparing Human-Caused
Mortality to the Maximum Removal Level:
[Refer to PDF for image]
This figure is an illustration of information as follows:
If human-caused mortality is greater than maximum removal level =
strategic stock.
Human-caused mortality key factors:
* Fishery-related mortality;
* Other human-caused mortality.
Maximum removal level kep factors:
* Population size estimate;
* Adjustments to the maximum removal level.
Source: GAO analysis of NMF‘s guidelines for assessing marine mammal
stocks.
[End of figure]
The MMPA requires NMFS to assess the status of each stock under its
jurisdiction and determine whether it is strategic or not. NMFS
publishes annual stock assessment reports that include, among other
things, the strategic status of each marine mammal stock and the
information used to make these strategic status determinations.
Information contained in the reports must be based on the best
scientific information available. NMFS's Fishery Science Centers are
responsible for publishing the stock assessment reports, and the Office
of Protected Resources, along with NMFS regional offices, is
responsible for using the data from the reports to decide whether to
establish a take reduction team. Regional Scientific Review Groups--
composed of individuals with expertise in marine mammal biology,
commercial fishing technology and practices, and other areas--review
all stock assessment reports prior to publication.[Footnote 13] NMFS
also uses fishery-related mortality estimates and maximum removal
levels in the stock assessment reports to categorize fisheries in its
annual list of fisheries.[Footnote 14] Under the amended MMPA,
commercial fisheries are classified as Category I if they have frequent
incidental take of marine mammals and as Category II if they have
occasional take.[Footnote 15]
Once a stock is identified as requiring a take reduction team--because
it is strategic and interacts with a Category I or II fishery--the MMPA
requires NMFS to establish a team and appoint take reduction team
members. The MMPA requires the take reduction team members to develop
and submit a draft take reduction plan designed to reduce the
incidental take of marine mammals by commercial fishing operations. If
NMFS lacks sufficient funding to develop and implement a take reduction
plan for all stocks that satisfy the MMPA's requirements, the MMPA
directs NMFS to give highest priority to take reduction plans for those
stocks (1) for which incidental mortality and serious injury exceed the
maximum removal level, (2) with a small population size, and (3) that
are declining most rapidly. The MMPA requires that draft take reduction
plans be developed by consensus among take reduction team members. If
take reduction team members cannot reach consensus, the members must
submit the range of possibilities they considered and the views of both
the majority and minority to NMFS. These draft plans may include
regulatory measures (known as take reduction regulations) such as gear
modifications or geographical area closures that fisheries would be
required to follow and voluntary measures such as research plans for
identifying the primary causes and solutions for incidental take or
education and outreach for commercial fishermen.
After the take reduction team members develop and submit a draft take
reduction plan to NMFS, the agency must publish a proposed plan in the
Federal Register. The MMPA requires NMFS to take the team's draft plan
into consideration when it develops a proposed plan but does not
require adoption of the draft plan.[Footnote 16] If the team fails to
meet its deadline for submitting a draft plan to NMFS, the MMPA
requires NMFS to develop and propose a plan on its own. For strategic
stocks, the proposed plan must include measures NMFS expects will
reduce incidental take below the maximum removal level within 6 months
of the plan's implementation. Once the proposed plan is published in
the Federal Register, NMFS must solicit public comments on the plan
before the agency finalizes and implements it by publishing a final
plan in the Federal Register. NMFS's development and publication of
proposed and final plans are subject to several laws, including the
following:
* Endangered Species Act: The act requires consultation among federal
agencies including NMFS and the U.S. Fish and Wildlife Service to
ensure that any take reduction plan is not likely to jeopardize the
continued existence of any endangered or threatened species.
* National Environmental Policy Act: The act requires NMFS to evaluate
the likely environmental effects of any take reduction plan using an
environmental assessment or, if the plans will likely have significant
environmental effects, a more detailed environmental impact statement.
* Regulatory Flexibility Act: The act requires NMFS to assess the
economic impact of any take reduction plan on small entities.[Footnote
17]
The proposed and final take reduction plans are also subject to the
requirements of the Coastal Zone Management Act, Information Quality
Act, Magnuson-Stevens Act, and the Paperwork Reduction Act, among
others. In addition to these laws, the proposed and final take
reduction plans are subject to the requirements of four executive
orders.[Footnote 18] For example, one executive order requires NMFS to
submit the proposed and final take reduction plans to the Office of
Management and Budget (OMB) for review if NMFS or OMB determines that
the plan is a significant regulatory action.
The 1994 amendments to the MMPA provide deadlines to establish take
reduction teams and develop and publish proposed and final plans. Table
1 outlines these statutory requirements and deadlines.
Table 1: MMPA's Take Reduction Team Requirements and Deadlines:
Requirement: NMFS establishes take reduction team;
Deadline: 30 days after a final stock assessment report indicates that
a stock is strategic and the current list of fisheries lists the stock
as interacting with a Category I or II fishery.
Requirement: Take reduction team members develop a draft plan and
submit the draft plan to NMFS;
Deadline: 6 months after take reduction team is established[A].
Requirement: NMFS translates draft plan into a proposed take reduction
plan and implementing regulations and publishes them in the Federal
Register;
Deadline: 60 days after draft plan is submitted[B].
Requirement: NMFS holds a public comment period on the proposed take
reduction plan and implementing regulations;
Deadline: Up to 90 days after proposed plan's publication.
Requirement: NMFS publishes a final take reduction plan and
implementing regulations in the Federal Register;
Deadline: 60 days after closure of the public comment period on the
proposed plan.
Source: GAO analysis of the 1994 amendments to the MMPA.
[A] If the team's stocks have human-caused mortality and serious injury
below the maximum removal level and interact with a Category I or II
fishery, this deadline is 11 months instead of 6 months.
[B] If the team does not meet its submission deadline for the draft
plan, NMFS must publish a proposed plan 8 months after the team's
establishment for strategic stocks whose human-caused mortality and
serious injury are above the maximum removal level. For strategic
stocks whose human-caused mortality and serious injury are below the
maximum removal level, the deadline is 13 months after the team's
establishment.
[End of table]
NMFS Faces Significant Challenges in Accurately Identifying Marine
Mammal Stocks That Meet the Statutory Requirements for Establishing
Take Reduction Teams because of Data Limitations:
Significant limitations in available information make it difficult for
NMFS to accurately determine which marine mammal stocks meet the
statutory requirements for establishing take reduction teams. The MMPA
states that stocks are strategic--one of two triggers for establishing
a take reduction team--if their human-caused mortality exceeds maximum
removal levels. However, the information NMFS uses to calculate human-
caused mortality or the maximum removal level for most stocks is
incomplete, outdated, or imprecise, a fact that may lead NMFS to
overlook some marine mammal stocks that meet the statutory requirements
for establishing take reduction teams and inappropriately identify
others as meeting them. NMFS officials said that funding constraints
limit their ability to gather sufficient data, although the agency has
taken steps to identify its data needs.
Incomplete Information Reduces the Reliability of NMFS's Strategic
Status Determinations:
Our review of stock assessment reports from 2007 found that NMFS was
missing key information to make well-informed strategic status
determinations for a significant number of marine mammal stocks.
According to the MMPA, a stock is designated strategic--one of two
triggers for establishing a take reduction team--if the human-caused
mortality estimate exceeds the maximum removal level.[Footnote 19] Our
review of stock assessment reports from 2007 found that 39 of 113
stocks are either missing human-caused mortality estimates or maximum
removal levels, making it impossible to determine strategic status in
accordance with the MMPA requirements.[Footnote 20] As a result, for
these 39 stocks, NMFS is determining strategic status without key
information and therefore might not accurately determine whether a
stock requires a take reduction team. According to NMFS officials,
maximum removal level and human-caused mortality estimates are often
missing because scientists have been unable to gather the necessary
data to make these determinations.
In the absence of human-caused mortality estimates or maximum removal
levels, NMFS must make more subjective--and potentially inaccurate--
strategic status determinations for some marine mammal stocks. In these
cases, NMFS guidance directs scientists to use professional judgment to
determine whether a stock is strategic. According to NMFS officials,
scientists may use a variety of sources to make these decisions,
including scientists' field observations of the marine mammals.
However, Marine Mammal Commission officials we spoke with stated that
decisions based on professional judgment are less certain than those
based on data about human-caused mortality and maximum removal levels
and could result in some marine mammal stocks that should be identified
as strategic not being identified as such.
Even in cases where the stock assessment reports include human-caused
mortality estimates and maximum removal levels for a stock, the human-
caused mortality estimates may be inaccurate because the information on
which they are based is incomplete. Human-caused mortality estimates
are based in part on fishery-related mortality. However, according to
Marine Mammal Commission officials, in some cases, mortality may be
occurring in fisheries where NMFS does not systematically collect
mortality information. Specifically, NMFS's observer programs--a key
source of data NMFS uses to calculate fishery-related mortality
estimates---gather information for only half of the total fisheries,
but incidental take may also be occurring in some fisheries that are
not observed, especially those that are classified as Category I or II.
Observer program officials told us that funding limitations prohibit
coverage of all Category I or II fisheries.
In addition, our review of 2007 stock assessment reports found
instances where fishery-related mortality estimates were missing
important information. For example, NMFS scientists identified spinner
and bottlenose dolphins in Hawaii as nonstrategic, but raised concerns
about these decisions because the estimates of fishery-related
mortality for the stocks were likely to be incomplete. Specifically,
they stated that while the agency has observer program data showing
that incidental take from a longline fishery was below the maximum
removal level, it did not have observer programs in gillnet fisheries
that were also likely to incidentally take the stocks, and therefore
might have increased the fishery-related mortality estimate if these
fisheries had been observed.
Furthermore, NMFS, Marine Mammal Commission, and Scientific Review
Group scientists expressed concern that strategic status decisions for
some stocks may not be accurate because NMFS does not have all of the
information needed to define the stocks accurately. Under the MMPA,
marine mammal species are treated as stocks--populations located in a
common area that interbreed when mature. However, a 2004 NMFS report
found that the stock definitions for 61 percent of marine mammal stocks
were potentially not accurate.[Footnote 21] For example, a stock
definition would not be accurate if NMFS defined two distinct
populations of a marine mammal species incorrectly as one stock. If one
of these two populations has a high level of incidental take and the
other does not, the combined human-caused mortality estimate might not
be high enough to result in a strategic status determination. However,
if the two distinct populations were defined as two stocks, the high
incidental take of one stock could result in it being considered
strategic and triggering one of the requirements for take reduction
team establishment. The Alaska Scientific Review Group has raised
concerns that inaccurate stock definitions may be leading to incorrect
strategic status designations. Specifically, in a 2007 letter to NMFS,
the review group said that recent scientific information indicates that
the current stock definitions might inappropriately consolidate harbor
seal populations in Alaska. The review group chair said that this
consolidation may lead to some harbor seal populations being
incorrectly categorized as nonstrategic.
Outdated Information Reduces the Reliability of NMFS's Strategic Status
Determinations:
Our review of a sample of stock assessment reports found that
approximately 11 of the 74 stocks used outdated information--
information that is 8 years old or older--to calculate the maximum
removal level, thereby reducing the reliability of the strategic status
determinations for these stocks.[Footnote 22] According to NMFS
guidelines, information that is 8 years old or older is generally
unreliable for estimating the current stock population. NMFS scientists
estimate the size of a stock's population to determine its maximum
removal level. If human-caused mortality exceeds maximum removal
levels, the stock is considered strategic. However, when the data are 8
years old or older, scientific research has shown that marine mammal
stocks could have declined significantly since the data were
collected.[Footnote 23] This could lead NMFS to inaccurately designate
a stock as nonstrategic and therefore not establish a take reduction
team when one might be needed. In addition, if a stock's population has
increased significantly during the time period since the last estimate
was made, NMFS may inaccurately designate the stock as strategic.
Furthermore, our review found that for approximately 21 of the 74
stocks, the population size information was between 5 and 8 years old,
a situation that is less of a concern than data that are 8 years old or
older, but could also lead NMFS to make an inaccurate strategic stock
determination. NMFS and Marine Mammal Commission scientists stated that
scientists' confidence in the accuracy of the information used to
estimate population size begins to decrease even before 8 years. Also,
a 2004 NMFS report to Congress stated that estimates for population
size based on information 5 years old or older may not accurately
represent a marine mammal stock's current population size.[Footnote 24]
Imprecise Information Reduces the Reliability of NMFS's Strategic
Status Determinations:
Our review of a sample of stock assessment reports from 2007 frequently
found that NMFS used population size or fishery-related mortality
estimates that were less precise than NMFS's guidelines recommend,
decreasing the likelihood that strategic status determinations based on
this information are accurate. Furthermore, we also found that NMFS
could often not identify the level of precision for fishery-related
mortality estimates. Specifically, we found that:
* Approximately 48 of 74 stocks had population size estimates--used to
determine maximum removal levels--that were less precise than NMFS
guidelines recommend.[Footnote 25] According to NMFS officials, one
reason for the lack of precision is that the agency did not have
adequate funding to conduct thorough population surveys. When
conducting a marine mammal population survey, scientists document how
frequently they observe marine mammals during a set period of time and
use this information to estimate total population size. The duration of
the survey and the number of scientists observing different areas
within the stock's natural habitat affect the extent to which the
survey is thorough and the population estimate is precise.
* Scientists could not calculate the precision of fishery-related
mortality estimates--used to determine human-caused mortality
estimates--for approximately 48 of the 74 stocks. In addition, the
estimates for approximately 24 of the remaining 26 stocks were less
precise than NMFS guidance recommends. Specifically, precision cannot
be calculated when the sources of mortality data are anecdotal or the
fishery-related mortality estimate is zero.[Footnote 26] For these
cases, NMFS does not have a systematic way of determining how precise
the estimates are and therefore how much certainty it should have in
their accuracy. NMFS and Marine Mammal Commission officials identified
inadequate observer coverage as one of the main reasons for imprecise
mortality estimates. According to National Observer Program officials,
52 percent of Category I or II fisheries have observer coverage;
however, only 27 percent of Category I or II fisheries have adequate or
near-adequate coverage levels.[Footnote 27] Without adequate observer
coverage in fisheries likely to cause incidental take of marine
mammals, estimates will be less precise because they will be based on
fewer data. NMFS and Marine Mammal Commission officials also stated
that current funding levels for the observer program are inadequate to
gather enough data on fishery-related mortality.
For the stocks for which we found that NMFS could calculate the level
of precision for population size or fishery-related mortality estimates
but these estimates were less precise than NMFS's guidance recommends,
NMFS policy guidelines directed scientists to make adjustments to these
estimates that increased the likelihood that the stocks were
categorized as strategic. By doing this, the imprecision in these
estimates is less likely to lead NMFS to overlook a stock that should
be covered by a take reduction team, but NMFS officials told us that it
is possible these stocks would not be designated as strategic if more
precise estimates had been available and therefore these adjustments
had not been necessary. However, in the approximately 48 of 74 stocks
where NMFS cannot calculate the precision of a fishery-related
mortality estimate--even though high levels of imprecision may exist--
it cannot make these adjustments and therefore may either overlook some
stocks that should be designated as strategic or inaccurately designate
others as nonstrategic. Figure 2 summarizes key data limitations
identified earlier in this report.
Figure 2: Information Limitations Make It Difficult to Accurately
Determine Strategic Status:
[Refer to PDF for image]
This figure illustrates the following information:
A total of 113 stocks require human-caused mortality estimates and
maximum removal levels to determine strategic status [total stocks
reviewed];
* Thirty-nine stocks are missing human-caused mortality estimates or
maximum removal levels [type of data limitation];
- Strategic status cannot be determined as directed in the MMPA [impact
of data limitations].
* Seventy-four stocks have at least one of the following data
limitations for determining strategic status [type of data limitation];
- Data limitations make it difficult to accurately determine strategic
status as directed in the MMPA [impact of data limitations];
- Approximately 11 stocks rely on population size information that is
older than what NMFS considers reliable to determine the maximum
removal levels [subset of 74 stocks];
- Approximately 48 stocks rely on population size information that is
less precise than NMFS recommends to determine the maximum removal
levels [subset of 74 stocks];
- For approximately 48 stocks, NMFS cannot calculate the precision of
the fishery-related mortality information [subset of 74 stocks];
- Approximately 24 stocks rely on fishery-related mortality information
that is less precise than NMFS recommends to determine human-caused
mortality [subset of 74 stocks].
Source: GAO analysis of NMFS data.
[End of figure]
Funding Constraints Limit NMFS's Ability to Gather Sufficient Data, but
the Agency Has Taken Some Steps to Identify Data Needs:
NMFS officials acknowledged limitations in the information available to
determine strategic status and the potential consequences, but
identified funding constraints as an impediment to addressing these
limitations. Specifically, a NMFS official stated that the agency has
insufficient data to make informed management decisions regarding
marine mammals in most instances, and said that a stock with sufficient
data is an exception. However, while NMFS officials acknowledged these
significant data limitations and their potential consequences, they
also stated that they use the best scientific information available to
make these determinations, as required by the MMPA. In addition, NMFS
and Marine Mammal Commission officials stated that funding constraints
have limited the agency's ability to gather the data that it needs to
make accurate decisions about which stocks meet the statutory
requirements for establishing take reduction teams.
NMFS has taken some steps to identify data limitations and proposed
some actions to alleviate them. For example, a 2004 NMFS study found
that the agency must significantly enhance the quantity and quality of
its stock assessment data and analyses to meet MMPA mandates and
outlined the actions and resource increases necessary to achieve these
enhancements.[Footnote 28] According to NMFS officials, the agency
received funding to begin implementing the study's recommendations in
fiscal year 2008 but the program lost other funding sources, so the new
funding did not result in an overall increase in resources to improve
these data. In addition, NMFS is currently completing a study to assess
its sources of fishery-related mortality information. According to
agency documents, this report will include an evaluation of the
adequacy of the scientific techniques and existing observer coverage
levels used to collect these data.
Nonetheless, marine mammal scientists expressed interest in having more
information about the quality of the data used to determine the
strategic status for each stock. Specifically, Marine Mammal Commission
officials supported implementing a process to identify stocks where the
scientists have low confidence in the quality of the data. According to
these officials, if this occurred, interested parties would gain a
better understanding of the data underlying strategic status
determinations and therefore would have more information to judge the
usefulness of the conclusions made from those data. Also, marine mammal
scientists said that a process to identify stocks with poor data could
make it easier to highlight stocks in need of additional data
collection efforts.
NMFS Has Not Established Teams for Many Marine Mammals That Have Met
the Statutory Requirements of the MMPA for a Variety of Reasons:
On the basis of NMFS's available information, we identified 30 marine
mammal stocks that met the MMPA's requirements for establishing a team,
and NMFS has established six teams that cover 16 of them. NMFS has not
established teams for the 14 other marine mammals that have met the
MMPA's requirements for establishing a team for several reasons: (1)
the agency lacked sufficient funds to establish a team, (2) information
about the stock's population size or mortality is outdated or
incomplete and the agency lacks funds to obtain better information, (3)
commercial fisheries account for little or no incidental take, or (4)
the population size is increasing; therefore establishing a team for
the stock is a lower priority.
NMFS Has Established Teams for 16 Marine Mammals That Have Met the
Requirements of the MMPA:
Since 1994, NMFS has established eight take reduction teams, six of
which are still in existence--the Atlantic Large Whale, Atlantic Trawl
Gear, Bottlenose Dolphin, Harbor Porpoise, Pacific Offshore Cetacean,
and Pelagic Longline.[Footnote 29] These six teams cover 16 marine
mammal stocks that have met the MMPA's requirements for establishing a
take reduction team. The MMPA gives NMFS discretion to determine how
teams can be structured. For example, NMFS can establish a take
reduction team for (1) one stock that interacts with multiple
fisheries, such as the Bottlenose Dolphin take reduction team; (2)
multiple stocks within a region, such as the Atlantic Large Whale take
reduction team; or (3) multiple stocks that interact with one fishery,
such as the Pacific Offshore Cetacean take reduction team. The existing
take reduction teams--five of which are located in the Atlantic region
and one in the Pacific--are described in table 2.
Table 2: Marine Mammals That Have Met the MMPA's Requirements for
Establishing a Take Reduction Team and for Which NMFS Has Established a
Team:
Take reduction team name: Atlantic Large Whale;
Marine mammals: Fin whale; Humpback whale; North Atlantic right whale;
Types of fisheries affected:
Multiple trap/pot fisheries; Multiple gillnet fisheries.
Take reduction team name: Atlantic Trawl Gear;
Marine mammals: Short-finned pilot whale; Long-finned pilot whale;
Types of fisheries affected: Multiple trawl fisheries.
Take reduction team name: Bottlenose Dolphin;
Marine mammals: Bottlenose dolphin;
Types of fisheries affected: Multiple gillnet fisheries; One trap/pot
fishery; Two seine fisheries; Two stop/pound net fisheries.
Take reduction team name: Harbor Porpoise[A];
Marine mammals: Harbor porpoise;
Types of fisheries affected: Multiple gillnet fisheries.
Take reduction team name: Pacific Offshore Cetacean;
Marine mammals: Mesoplodont beaked whale; Baird's beaked whale;
Cuvier's beaked whale; Sperm whale; Pygmy sperm whale; Humpback whale;
Short-finned pilot whale; Fin whale; Long-beaked common dolphin;
Types of fisheries affected: One gillnet fishery.
Take reduction team name: Pelagic Longline;
Marine mammals: Short-finned pilot whale[B]; Long-finned pilot
whale[B];
Types of fisheries affected: The Atlantic portion of one longline
fishery.
Source: GAO analysis of Federal Register and NMFS documents.
[A] NMFS has established two take reductions teams for harbor
porpoises. According to the Federal Register, the first team was
established on February 12, 1996, to address harbor porpoises in the
Gulf of Maine (known as the Gulf of Maine Harbor Porpoise take
reduction team). The second team, established on February 25, 1997,
focused on the same stock of harbor porpoises in the mid-Atlantic
(known as the Mid-Atlantic take reduction team). NMFS decided to
combine the two teams into one team in December 2007. For the purposes
of this report, we refer to the combined teams as the Harbor Porpoise
team.
[B] These marine mammal stocks are covered by both the Atlantic Trawl
Gear and Pelagic Longline take reduction teams. Since we are reporting
on the number of marine mammals that met the MMPA's requirements for
establishing a team, we accordingly did not double-count this marine
mammal.
[End of table]
NMFS Has Not Established Teams for 14 Other Marine Mammals That Have
Also Met the Requirements of the MMPA:
NMFS has not established take reduction teams for 14 other marine
mammals that have also met the MMPA's requirements for the
establishment of a take reduction team. Table 3 lists these 14 marine
mammals.
Table 3: Marine Mammals Stocks That Have Met the MMPA's Requirements
for Establishing a Take Reduction Team, but NMFS Has Not Established a
Team:
Marine mammal: Bottlenose dolphin;
Stock: Gulf of Mexico bay, sound, and estuarine.
Marine mammal: Bottlenose dolphin;
Stock: Northern Gulf of Mexico coastal.
Marine mammal: Cuvier's beaked whale;
Stock: Western North Atlantic.
Marine mammal: False killer whale;
Stock: Hawaii.
Marine mammal: Harbor porpoise;
Stock: Bering Sea.
Marine mammal: Harbor porpoise;
Stock: Gulf of Alaska.
Marine mammal: Harbor porpoise;
Stock: South East Alaska.
Marine mammal: Humpback whale;
Stock: Central North Pacific.
Marine mammal: Humpback whale;
Stock: Western North Pacific.
Marine mammal: Mesoplodont beaked whale;
Stock: Western North Atlantic.
Marine mammal: Sperm whale;
Stock: Hawaii.
Marine mammal: Northern fur seal;
Stock: East North Pacific.
Marine mammal: Steller sea lion;
Stock: Eastern United States.
Marine mammal: Steller sea lion;
Stock: Western United States.
Source: GAO analysis of Federal Register and NMFS data.
[End of table]
NMFS has not established teams for these 14 marine mammal stocks for
the following reasons:
Lack of funding. Specifically, NMFS officials told us they did not
establish a take reduction team for one marine mammal--the false killer
whale--due to lack of funding. False killer whales found in the waters
off the Hawaiian Islands have met the MMPA's requirements for
establishing a team since 2004 because the stock has been strategic and
interacts with a Category I longline fishery. Furthermore, since 2004,
estimates of fishery-related mortality of false killer whales are at
levels greater than their maximum removal level, according to stock
assessment reports. According to the most recently available
information, the false killer whale is the only marine mammal for which
incidental take by commercial fisheries is known to be above its
maximum removal level that is not covered by a take reduction team.
[Footnote 30] Since 2003, the Pacific Scientific Review Group has
recommended that NMFS establish a team for these whales. Although NMFS
officials told us that in accordance with the MMPA, the false killer
whales are their highest priority for establishing a team, they said
the agency does not have the funds to do so. NMFS officials told us the
agency instead decided to focus what they characterized as their very
limited funding on the already established take reduction teams.
However, in the absence of a take reduction team, the Hawaii longline
fishery continues to operate without a take reduction plan designed to
reduce incidental take of false killer whales.
Outdated or incomplete data. NMFS has not established take reduction
teams for eight marine mammals that interact with commercial fisheries
in the Gulf of Mexico and the waters off of Alaska's coast because the
information the agency has on them is too outdated or incomplete for
agency officials to determine whether these marine mammals should be
considered a high priority for establishing a take reduction team.
Also, take reduction team members need better information about
mortality before they can propose changes to fishing practices in a
draft take reduction plan. However, because take reduction teams have
not been established for these eight marine mammal stocks, fisheries
continue to operate without take reduction plans that could decrease
incidental take of these stocks.
Specifically, NMFS has not established teams for two stocks of
bottlenose dolphins found in the Gulf of Mexico and six stocks in the
waters off Alaska's coast, including three stocks of harbor porpoises,
two stocks of Steller sea lions, and one stock of humpback whales.
[Footnote 31] Two stocks of bottlenose dolphins found in the Gulf of
Mexico have met the MMPA's requirements for establishing a team since
2005 because they have been strategic and interact with two Category II
fisheries.[Footnote 32] According to stock assessment reports, the best
scientific information available about population size for these two
stocks is 8 years old or older. According to NMFS documents, using such
outdated information increases the possibility that significant
population changes of which NMFS is unaware could have occurred. Agency
officials told us that the 2008 survey to collect new population size
estimates was canceled due to insufficient funding. Furthermore,
according to stock assessment reports, the available mortality
estimates are incomplete because they are based on anecdotal
information. Consequently, scientists can use this information only to
make a minimum estimate of the number of marine mammals being killed or
injured. Agency officials told us they would like to begin observing
the two Gulf of Mexico fisheries, but are currently unable to do so due
to funding constraints.
Similarly, NMFS has not established take reduction teams due to
outdated information for three stocks of harbor porpoises found in the
waters off Alaska's coast that have met the MMPA's statutory
requirements for establishing a team since 2006 because they have been
strategic and interact with multiple Category II fisheries. According
to stock assessment reports, the best scientific information available
about population size for harbor porpoises is outdated because the
estimates are 8 years old or older. NMFS officials told us harbor
porpoises are a major conservation concern for the agency, but they
said funding constraints have limited their ability to collect new
population size estimates for these marine mammals.
In addition, NMFS has not established take reduction teams due to
incomplete information for two stocks of Steller sea lions that have
met the MMPA's requirements for establishing a team since 1996 because
they have been strategic and interact with multiple Category II
fisheries. NMFS officials told us the fishery-related mortality
information for these stocks is incomplete because they are uncertain
whether incidental take is occurring in commercial fisheries not
covered by observer programs. According to these same officials, lack
of funding has limited the agency from obtaining more complete fishery-
related mortality information for Steller sea lions.
Last, NMFS has not established a take reduction team due to outdated
information for the Western North Pacific stock of humpback whales,
which has met the MMPA's requirements for establishing a team since
2006, because it has been strategic and interacts with two Category II
fisheries. According to the stock assessment report, the best
scientific information available about population size for these
humpback whales is outdated because it is 8 years old or older, but
agency officials told us funding constraints limit their ability to
collect new information.
Commercial fisheries account for little or no incidental take. NMFS has
not established teams for four marine mammals--the Hawaii stock of
sperm whales, Western North Atlantic stocks of Cuvier's beaked whales
and Mesoplodont beaked whales, and East North Pacific stock of northern
fur seals--that have met the MMPA requirements for establishing a team
because, according to agency officials, commercial fisheries account
for little or no incidental take of these stocks. According to our
analysis, these sperm whales meet the statutory requirements for a team
because they are listed as an endangered species under the ESA, and
therefore are a strategic stock, and they interact with a Category I
fishery. However, NMFS officials told us that the commercial fishery
with which these sperm whales interact accounts for little or no
incidental take, and therefore it would be inappropriate to establish a
team for them.[Footnote 33] Similarly, NMFS's 2007 stock assessment
reports state that acoustic activities, such as sonar used by the U.S.
Navy, may contribute to the mortality and serious injury of Cuvier's
and Mesoplodont beaked whales, and non-human-related causes of death
that are unknown to scientists are contributing to the population
decline of northern fur seals. NMFS officials told us it would be
inappropriate to establish take reduction teams for these marine mammal
stocks because mortality and serious injuries are not being caused by
interaction with a commercial fishery. According to NMFS officials,
they proposed amending the MMPA in 2005 to require that take reduction
teams be established only for strategic stocks that interact with
Category I or II fisheries and that have some level of fishery-related
incidental take of those stocks, but Congress took no action on the
proposal at that time.
Population size is increasing. NMFS officials said they have not
established a take reduction team for one marine mammal stock that
meets the statutory requirements--the Central North Pacific stock of
humpback whales--because of insufficient funding; however, this stock
would be a low priority because the stock's population size is
increasing. This stock is strategic because it is listed as an
endangered species under the ESA and it interacts with a Category I
fishery off the coast of Hawaii and multiple Category II commercial
fisheries in the waters off Alaska's coast. However, because its
population size is increasing, NMFS officials consider the stock to be
a lower priority for establishing a team than stocks with declining
populations.
NMFS Has Had Limited Success in Meeting the Statutory Deadlines for
Take Reduction Teams for a Variety of Reasons:
For the five take reduction teams subject to the MMPA's deadlines, NMFS
has had limited success in meeting the deadlines for a variety of
reasons.[Footnote 34] NMFS did not meet the statutory deadlines to
establish take reduction teams for three of the five teams, in one case
due to a lack of information about population size or mortality. In
addition, two of the five teams did not submit their draft take
reduction plans to NMFS within the statutory deadlines, in one case
because the team could not reach consensus on a plan. NMFS did not
publish proposed take reduction plans within the statutory deadlines
for any of the five teams because of the time needed to complete the
federal rulemaking process, among other things. However, NMFS has
complied with the statutory deadlines for the public comment periods on
the proposed plans for all five teams. Finally, NMFS did not publish
final take reduction plans within the statutory deadlines for four of
the five teams because of the time associated with analyzing public
comments, among other things.
NMFS Did Not Establish Three of the Five Teams within the Statutory
Deadlines:
According to the MMPA, NMFS has 30 days to establish a take reduction
team after a stock is listed as strategic in a final stock assessment
report and is listed as interacting with a Category I or II fishery in
the current list of fisheries. NMFS established two teams within this
statutory deadline: the Harbor Porpoise and Pacific Offshore Cetacean.
However, NMFS did not meet the statutory deadlines for establishing
three teams--the Atlantic Large Whale, Pelagic Longline, and Bottlenose
Dolphin. These teams were established from 3 months to more than 5
years after their statutory deadlines (see table 4).
Table 4: Delays in Establishing Take Reduction Teams:
Take reduction team: Atlantic Large Whale;
Date of statutory deadline for team establishment: May 1, 1996[A];
Date take reduction team was established: August 6, 1996;
Delay: 97 days (3 months).
Take reduction team: Pelagic Longline;
Date of statutory deadline for team establishment: January 2002[B];
Date take reduction team was established: June 22, 2005[C];
Delay: 1,268 days (over 3 years).
Take reduction team: Bottlenose Dolphin;
Date of statutory deadline for team establishment: May 1, 1996[A];
Date take reduction team was established: October 24, 2001[D];
Delay: 2,001 days (over 5 years).
Source: GAO analysis of information published in Federal Register
notices.
[A] The stocks covered by this team were designated as strategic in the
July 1995 stock assessment reports. The effective date of the list of
fisheries that identified these stocks as interacting with Category I
or II fisheries was April 1, 1996. Accordingly, the deadline for team
establishment is 30 days after the list of fisheries' effective date.
[B] The stock assessment reports for the relevant marine mammal stocks
covered by the Pelagic Longline were published in December 2001.
However the reports did not include a specific date in December. The
stocks covered by this team were listed as strategic in the December
2001 stock assessment reports. Also, the list of fisheries that was in
effect at that time listed the stocks as interacting with Category I or
II fisheries. Accordingly, the deadline for team establishment is 30
days after publication of the stock assessment reports. We determined
the number of days of delay based on the date January 1, 2002, because
the December 2001 stock assessment reports did not indicate a specific
date.
[C] This team was established pursuant to an agreement settling a
lawsuit.
[D] The Bottlenose Dolphin team was originally established on August
31, 2001; however, due to the events of September 11, 2001, the first
meeting was canceled and NMFS subsequently reestablished the team on
October 24, 2001.
[End of table]
According to NMFS officials, the reasons for delays in establishing
these take reduction teams include the following:
* Atlantic Large Whale: It took NMFS officials more than 30 days to
identify sufficient take reduction team members to represent the
stocks' large habitat, which stretches from Maine to Florida.
* Pelagic Longline: After 2001, NMFS officials were waiting to see if
modifications to the longline fishery, intended to reduce the
incidental take of billfish and sea turtles, would also reduce
incidental take of pilot whales, which would eliminate the need for
this team.[Footnote 35] However, in 2002, an environmental group sued
NMFS because of the agency's alleged failure to establish take
reduction teams for marine mammals that met the statutory requirements.
According to an agreement settling the lawsuit, NMFS had to conduct
surveys and develop new population size estimates for pilot whales. In
addition, it had to establish a take reduction team for the Atlantic
portion of a large pelagic longline fishery by June 30, 2005.
* Bottlenose Dolphin: NMFS lacked information about population size and
mortality for bottlenose dolphins that take reduction team members need
to consider before they can propose changes to fishing practices in a
draft take reduction plan, and NMFS scientists recommended that the
agency obtain better information before establishing a team.[Footnote
36] According to a NMFS official, mortality information for bottlenose
dolphins collected between 1995 and 1998 was published in the 2000
stock assessment report. As a result of this new information, NMFS
established a team in 2001.
Two Teams Did Not Develop and Submit Draft Take Reduction Plans within
the Statutory Deadlines:
According to the MMPA, after NMFS establishes a take reduction team,
the team must develop a draft take reduction plan and submit it to NMFS
within 6 months if it covers strategic stocks whose level of human-
caused mortality exceeds the maximum removal level. However, if the
level of human-caused mortality for strategic stocks covered by the
plan is below the maximum removal level, as it is for the Pelagic
Longline team, then the team has 11 months to develop a draft plan and
submit the draft plan to NMFS. Three of the five teams submitted their
draft plans within the statutory deadlines.[Footnote 37] However, two
teams--the Pelagic Longline and Bottlenose Dolphin--submitted their
draft take reduction plans to NMFS, 17 and 23 days respectively, after
their statutory deadlines (see table 5). Table 5 shows the delays in
developing and submitting draft plans for the two take reduction teams
that missed the statutory deadline.
Table 5: Delays in Developing and Submitting Draft Take Reduction
Plans:
Take reduction team: Pelagic Longline;
Date of statutory deadline for submission of draft plan: May 22, 2006;
Date draft plan submitted to NMFS: June 8, 2006;
Delay: 17 days.
Take reduction team: Bottlenose Dolphin;
Date of statutory deadline for submission of draft plan: April 24,
2002;
Date draft plan submitted to NMFS: May 17, 2002[A];
Delay: 23 days.
Source: GAO analysis of information published in Federal Register
proposed rules.
[A] The Federal Register notice states that the draft plan was
submitted on May 17, 2002; NMFS's records indicate that the team's
facilitator submitted a draft plan to NMFS on May 6, 2002; however, the
date on the draft plan is May 7, 2002. Due to discrepancies in the
various records, we relied on the date in the Federal Register notice
to determine the deadlines. An addendum to the plan was submitted to
NMFS on May 3, 2003, after the team reconvened on April 1-3, 2003, to
discuss new scientific information. We used the date of the original
submission because NMFS was not obligated to reconvene the team to
address the new information. Under the MMPA, NMFS has the statutory
authority to issue a proposed plan that departs from a team's draft
plan.
[End of table]
According to NMFS officials, the reasons for delays in submitting draft
take reduction plans to NMFS include the following:
* Pelagic Longline: The unexpected death of a take reduction team
member 1 week before the plan's due date delayed the team's submission
to NMFS. This team member was a key liaison to the fishing industry,
working with commercial fishermen to obtain agreement on potential take
reduction plan measures.
* Bottlenose Dolphin: The take reduction team found it difficult to
reach consensus about modifications to fishing practices to help reduce
incidental take because of the large number of team members involved
(44) representing multiple types of fisheries. For example, the
Bottlenose Dolphin team includes four gillnet, one trap/pot, two seine,
and two stop/pound net fisheries, making it difficult to agree on
modifications to fishing practices. See appendix II for a description
of these fishing techniques.
NMFS Did Not Publish Proposed Take Reduction Plans for Five Teams
within the Statutory Deadlines for a Variety of Reasons:
According to the MMPA, once NMFS receives a draft take reduction plan,
it must publish a proposed plan and implementing regulations in the
Federal Register within 60 days. NMFS missed the statutory deadline for
publishing proposed plans and implementing regulations for all five
teams by 5 days to more than 2 years after the statutory deadlines (see
table 6).
Table 6: Delays in Publishing Proposed Take Reduction Plans:
Take reduction team: Atlantic Large Whale;
Date of statutory deadline for publication[A]: April 2, 1997;
Date NMFS published the proposed plan in Federal Register: April 7,
1997;
Delay: 5 days.
Take reduction team: Pacific Offshore Cetacean;
Date of statutory deadline for publication[A]: October 14, 1996;
Date NMFS published the proposed plan in Federal Register: February 14,
1997;
Delay: 123 days (4 months).
Take reduction team: Harbor Porpoise;
Date of statutory deadline for publication[A]: March 15, 1998[B];
Date NMFS published the proposed plan in Federal Register: September
11, 1998;
Delay: 180 days (6 months).
Take reduction team: Pelagic Longline;
Date of statutory deadline for publication[A]: August 7, 2006;
Date NMFS published the proposed plan in Federal Register: June 24,
2008;
Delay: 686 days (almost 2 years).
Take reduction team: Bottlenose Dolphin;
Date of statutory deadline for publication[A]: July 16, 2002;
Date NMFS published the proposed plan in Federal Register: November 10,
2004;
Delay: 847 days (over 2 years).
Source: GAO analysis of information published in Federal Register
proposed rules.
[A] This deadline was calculated based on 60 days after the team
members submitted a draft plan to NMFS. Two teams, the Pelagic Longline
and Bottlenose Dolphin, submitted their draft plans to NMFS late, but
we calculated this deadline based on 60 days after the team submitted a
draft plan to NMFS, not based on 60 days after the prescribed deadline.
[B] NMFS established the Gulf of Maine take reduction team on February
12, 1996, and the Mid-Atlantic take reduction team on February 25,
1997. The current Harbor Porpoise take reduction team is a combination
of these two prior teams that focused on harbor porpoises in distinct
geographic areas, the Gulf of Maine and the mid-Atlantic. The original
draft plan for the Gulf of Maine take reduction team was submitted to
NMFS on August 8, 1996. Then the Mid-Atlantic team submitted its draft
plan to NMFS on August 25, 1997. The Gulf of Maine take reduction team
developed and submitted a second draft take reduction plan on January
14, 1998. The Mid-Atlantic take reduction team recommendations were
then incorporated into this January 14, 1998, draft plan as a combined
plan. We consider this last date, January 14, 1998, as the submission
date for a draft plan because at that point both teams had concluded
their deliberations.
[End of table]
According to NMFS officials, the reasons for delays in publishing
proposed plans and implementing regulations include the following:
* Atlantic Large Whale: Agency officials submitted the proposed plan
for publication within the statutory deadline but told us that the
Federal Register did not print the notice containing the proposed take
reduction plan until 5 days after the statutory deadline.
* Pacific Offshore Cetacean: The former team coordinator for this team
said that the proposed plan was delayed because of the time it took to
comply with various applicable laws. For example, NMFS is required to
review the proposed plan and consider its effects on small businesses
and other small entities under the Regulatory Flexibility Act and
prepare an environmental assessment under the National Environmental
Policy Act, among other requirements. Developing and drafting an
environmental assessment is a labor-intensive process requiring
coordination among scientists, economists, and policymakers.
* Harbor Porpoise: According to NMFS officials, they delayed preparing
the proposed plan for publication in the Federal Register because they
were waiting to see if closures of some fishing areas to protect fish
would also reduce incidental take of harbor porpoises. In addition,
NMFS scientists determined that this stock of harbor porpoises was
migratory and interacting not only with the Gulf of Maine fisheries but
with mid-Atlantic fisheries as well. As a result of this finding, NMFS
established another team, the Mid-Atlantic take reduction team, for the
mid-Atlantic fisheries. NMFS delayed the publication of the proposed
take reduction plan for the Gulf of Maine fisheries until the Mid-
Atlantic team developed and submitted a draft plan. Ultimately, the two
plans were combined and published as a single plan for both the Gulf of
Maine and mid-Atlantic fisheries.
* Pelagic Longline: According to NMFS officials, a combination of
factors caused the proposed plan to be published in the Federal
Register almost 2 years after the deadline. Take reduction team
coordinators are responsible for coordinating NMFS's internal review
and approval for take reduction plans, crafting the regulatory language
for the plan, and submitting the proposed plans for publication in the
Federal Register. Because the team coordinator position was vacant for
approximately 16 months, completion of these tasks was delayed.
* Bottlenose Dolphin: A combination of factors caused this proposed
plan to be published in the Federal Register 2 years after the
deadline, according to NMFS officials. The publication of the proposed
plan was delayed because NMFS asked team members to reconvene when it
became clear that the recommended regulatory measures would not reduce
incidental take to levels below the maximum removal level, as required
by the MMPA. Although NMFS can propose a plan of its own that deviates
from the team's draft plan, officials from NOAA's Office of General
Counsel told us NMFS prefers to wait until the team completes its work
and submits a draft plan. After they reconvened, the take reduction
team members developed and submitted a revised draft plan; however,
because the team coordinator position was vacant for about 8 months,
preparing the proposed plan for publication was delayed. Additionally,
because NMFS combined two rules--to benefit both sea turtles and
bottlenose dolphins--into one, the proposed plan was delayed due to the
time needed to update an environmental assessment required under the
National Environmental Policy Act and other associated documents. Also,
the proposed plan was delayed because of the time it took to comply
with various laws and executive orders. Finally, the Office of
Management and Budget took 90 days to review the proposed plan--the
maximum time allowed for such a review. This review by itself exceeded
the MMPA's 60-day deadline.
NMFS officials told us it is extremely difficult for the agency to meet
the MMPA's deadline for this step in the process. As the examples above
demonstrate, NMFS officials provided us with a variety of reasons for
delays in meeting the statutory deadlines for publishing proposed plans
in the Federal Register; however, the agency has not conducted a
comprehensive analysis that would identify all of the tasks that must
be completed during this stage in the process, along with the total
time needed to complete them. NMFS stated that it has not conducted
such an analysis because, in some cases, the documents needed are 10
years old and are not available electronically.
NMFS Has Complied with the Statutory Deadlines for Public Comment
Periods:
According to the MMPA, NMFS must hold a public notice and comment
period on the proposed plan and implementing regulations for up to 90
days after the proposed plan's publication in the Federal Register. The
public comment period is an opportunity for interested persons to
participate in the development of a take reduction plan by submitting
their views and concerns about the proposed plan. For all five teams--
the Atlantic Large Whale, Bottlenose Dolphin, Harbor Porpoise, Pacific
Offshore Cetacean, and Pelagic Longline--NMFS has complied with the
statutory deadline each time.
NMFS Did Not Publish Final Take Reduction Plans for Four of the Five
Teams within the Statutory Deadlines:
According to the MMPA, once the public comment period ends, NMFS must
publish the final plan and implementing regulations in the Federal
Register within 60 days. NMFS missed the statutory deadline for four
teams but met it for the Harbor Porpoise team. According to our
analysis, the delays ranged from 8 days to just over 1 year (see table
7).
Table 7: Delays in Publishing Final Take Reduction Plans:
Take reduction team: Atlantic Large Whale;
Date of statutory deadline for publication: July 14, 1997;
Date NMFS published the final plan in Federal Register: July 22,
1997[A];
Delay: 8 days.
Take reduction team: Pacific Offshore Cetacean;
Date of statutory deadline for publication: May 30, 1997;
Date NMFS published the final plan in Federal Register: October 3,
1997;
Delay: 136 days (4 months).
Take reduction team: Bottlenose Dolphin;
Date of statutory deadline for publication: April 9, 2005;
Date NMFS published the final plan in Federal Register: April 26, 2006;
Delay: 382 days (over 1 year).
Take reduction team: Pelagic Longline;
Date of statutory deadline for publication: November 21, 2008;
Date NMFS published the final plan in Federal Register: To be
determined[B];
Delay: To be determined.
Source: GAO analysis of information published in Federal Register final
rules.
[A] NMFS published an "interim final plan" for the Atlantic Large Whale
team. Although the MMPA is silent on interim final plans, we consider
it the final plan because it was in force and had the same effect as a
final plan.
[B] NMFS had not published the final plan in the Federal Register as of
the publication date of our report, December 8, 2008.
[End of table]
According to NMFS officials, the reasons for delays in publishing final
plans and implementing regulations in the Federal Register include the
following:[Footnote 38]
* Atlantic Large Whale: The delay was due, in part, to NMFS's efforts
in responding to the large number of public comments received on the
proposed plan.
* Pacific Offshore Cetacean: Because the plan included a fishing gear
modification, NMFS waited until the preliminary results of a gear
research experiment indicated that the modification reduced incidental
take before publishing the final plan. The experiment tested the
effectiveness of acoustic devices, known as pingers, that are attached
to fishing nets and emit high-pitched sounds so that marine mammals
would avoid the nets.
* Bottlenose Dolphin: According to NMFS officials, the delay was the
result of the time needed to review and analyze over 4,000 comments the
agency received during the public comment period and the 90 days the
Office of Management and Budget took to review the final take reduction
plan before NMFS could publish it in the Federal Register.
NMFS Does Not Have a Comprehensive Strategy for Evaluating the
Effectiveness of Take Reduction Regulations:
NMFS does not have a comprehensive strategy--identified as a key
principle by the Government Performance and Results Act of 1993--for
assessing the effectiveness of take reduction regulations once they
have been implemented. The Government Performance and Results Act of
1993 provides a foundation for examining agency performance goals and
results. Our work related to the act and the experience of leading
organizations have shown the importance of developing a comprehensive
strategy for assessing program effectiveness that includes, among other
things, program performance goals that identify the desired results of
program activities and reliable information that can be used to assess
results.[Footnote 39] In the context of NMFS's efforts to measure the
success of take reduction plans and implementing regulations, such a
strategy would include, at a minimum, (1) performance goals that
identify the desired outcomes of the take reduction regulations; (2)
steps for assessing the effectiveness of potential take reduction
regulations, such as fishing gear modifications, in achieving the
goals; (3) a process for monitoring the fishing industry's compliance
with the requirements of the take reduction regulations; and (4)
reliable data assessing the regulation's effect on achieving the goals.
Instead of such a comprehensive strategy, we found that although NMFS
uses short- and long-term goals established by the MMPA to evaluate the
success of take reduction regulations, these goals and the data that
NMFS uses to measure the impact of the take reduction regulations have
a number of limitations. In addition, while NMFS has taken steps to
identify the impact of proposed take reduction regulations prior to
their implementation, the agency has limited information about the
fishing industry's compliance with the regulations once they have been
implemented. As a result, when incidental takes occur in fisheries
covered by take reduction regulations, it is difficult for NMFS to
determine whether the regulations were not effective in meeting the
MMPA's goals or whether the fisheries were not complying with the
regulations.
Limitations in the Goals and Data That NMFS Currently Uses to Evaluate
the Success of Take Reduction Regulations Impede Effective Program
Evaluations:
The MMPA identifies, and NMFS further defines, short-and long-term
goals for reducing incidental take of marine mammals that take
reduction regulations should achieve. Specifically, the MMPA set a
short-term goal of reducing incidental take--also known as fishery-
related mortality--for strategic stocks below the maximum removal level
within 6 months of a plan's implementation and set a long-term goal of
reducing fishery-related mortality to insignificant levels approaching
a zero mortality and serious injury rate within 5 years of a plan's
implementation, which NMFS generally defines as 10 percent of the
maximum removal level.[Footnote 40] NMFS officials told us that NMFS
staff and take reduction team members review whether or not the goals
have been met for the stocks covered by their teams.
However, NMFS officials, Marine Mammal Commission officials, and a
Scientific Review Group chair all considered the 6-month time frame for
meeting the short-term goal to be unrealistic. Specifically, some noted
that due to the extensive time needed to gather and publish data on the
maximum removal level and fishery-related mortality estimates, NMFS
does not have the necessary information to assess the goal within the 6-
month time frame. A NMFS official also noted that fishing changes over
the year; therefore, assessing whether fishery-related morality is
below the maximum removal level during a 6-month time frame may not
consider mortality that may occur during both the busiest and the
slowest fishing seasons. While the MMPA sets this 6-month goal, it does
not impose consequences on NMFS or the regulated fisheries if the goal
is not met.
Furthermore, these goals may not help NMFS assess the success of the
regulations because we found that there was not always greater success
in meeting the goals after take reduction regulations were implemented
than before they were implemented. Also, if the goals had been met for
a stock in a given year, in some cases the goals did not continue to be
met in the following years. Specifically, we found that for two stocks,
[Footnote 41] the short-term goal had been met prior to the regulations
being implemented but was no longer being met in 2007.[Footnote 42] In
addition, for two other stocks, the long-term goal had been met prior
to implementation of the regulations,[Footnote 43] but was no longer
being met in 2007.[Footnote 44] Furthermore, for two stocks, the short-
term goal had been met and for two stocks, the long-term goal had been
met in 2007, but these goals had already been met prior to
implementation of the take reduction regulations.[Footnote 45] In cases
where the goals were met prior to the implementation of take reduction
regulations, the goals cannot be used to determine the regulations'
impact on reducing take.
In addition, according to NMFS officials, changes to the marine
environment that happen during the same time period as the
implementation of take reduction regulations make it difficult to
assess whether the regulations are the reason that the short-and long-
term goals for a stock have been achieved or whether it was other
changes. Specifically, state or federal fishing regulations unrelated
to the take reduction team process may result in less fishing in the
fisheries covered by the take reduction team. In such a scenario,
fishery-related mortality may decrease because there are fewer
opportunities for fishing vessels to interact with marine mammals.
Therefore, a lower level of fishery-related mortality may lead to
achievement of the MMPA's goals for a stock even if the take reduction
regulations themselves were not the primary reason for the lower level
of incidental take.
Moreover, limitations in some of the data used to determine whether the
MMPA's short-and long-term goals for reducing incidental take by
commercial fisheries have been met may lead to inaccurate conclusions
about the effectiveness of the take reduction regulations.[Footnote 46]
We reviewed the stock assessment reports for 9 of the 10 strategic
stocks and all 3 of the nonstrategic stocks covered by take reduction
regulations and found that for 2007, the short-term goal for 4 of the 9
strategic stocks had been achieved and the long-term goal had been
achieved for 3 of the 12 strategic and nonstrategic stocks.[Footnote
47] However, we also found that the information used to determine the
maximum removal level or the fishery-related mortality estimate for 6
of the 9 strategic stocks covered by these regulations was less precise
than NMFS guidelines recommend. Because these are the two key sources
of information for determining whether the MMPA's short-and long-term
goals have been met, this imprecision may cause NMFS to incorrectly
assess whether the take reduction regulations have been successful.
NMFS officials stated that limitations in the data make it difficult to
know the reason for changes in meeting the goals from one year to
another. For example, we found that the short-term goal for the Gulf of
Maine stock of humpback whales covered by the Atlantic Large Whale take
reduction team had been met prior to implementation of the take
reduction regulations; however, according to the stock assessment
report, it did not meet the goal in 2007.[Footnote 48] Meanwhile,
between the year prior to when the regulations were implemented and
2007, NMFS altered its stock definition for these marine mammals in a
way that decreased the number of animals included in the population
size estimate--a key aspect of determining the maximum removal level.
This change made the maximum removal level much lower than it had been
before the regulations were implemented, making it more difficult to
achieve the goals. Because of this change in NMFS's approach to
calculating the maximum removal level, it is difficult to determine
whether ineffectiveness of the take reduction regulations or the change
in the maximum removal level led to the short-term goal no longer being
met for this stock.
NMFS Studies the Impact of Proposed Take Reduction Regulations prior to
Their Implementation, but Has Limited Information about Industry
Compliance:
NMFS has assessed the likelihood that proposed take reduction
regulations would achieve the short-and long-term goals of reducing
incidental take for all four teams with final take reduction plans and
regulations. Specifically, for all four plans, scientists evaluated
whether key proposed measures for modifying fishing gear or changing
the times or areas where fishing could occur were likely to decrease
incidental take. For example, NMFS scientists analyzed data from
previous incidental take in the gillnet fisheries of concern for
bottlenose dolphins and found that incidental take had occurred at a
higher rate on the vessels that used nets with larger mesh openings.
Because this type of gear would be restricted under the proposed
regulations, NMFS had reason to believe that these gear restrictions
would result in reduced incidental take of bottlenose dolphins.
[Footnote 49] Similarly, according to the environmental assessment
report for the Harbor Porpoise take reduction team, a controlled
experiment tested the effectiveness of acoustic devices--often called
pingers--attached to fishing nets. Pingers emit a high-pitched sound
that harbor porpoises can hear, which results in them avoiding fishing
nets. This experiment allowed NMFS scientists to predict that proposed
regulations to implement pingers would likely result in a decline of
incidental take.[Footnote 50]
Although NMFS has conducted some assessments of the likelihood that
proposed take reduction regulations will achieve the goals of reducing
incidental take, they have limited information about the extent to
which fisheries comply with take reduction regulations once they have
been implemented. As a result, when incidental takes occur in fisheries
covered by take reduction regulations, it is difficult for NMFS to
determine whether the regulations were not effective in meeting the
MMPA's goals or whether the fisheries were not complying with the
regulations. Specifically, we determined that NMFS does not have
comprehensive approaches to measure the extent to which fisheries
comply with the regulations for the four take reduction plans that it
has implemented. However, for all of these implemented regulations,
NMFS has some--albeit limited--information from fisheries observer or
enforcement programs that provide an indication of whether fisheries
are complying with the regulations.[Footnote 51] For example, when
incidental take of harbor porpoises in the fisheries covered by the
Harbor Porpoise take reduction team recently increased, NMFS scientists
used observer information about incidental take to determine whether or
not these takes occurred when vessels were complying with the
requirement to use pingers on their nets.[Footnote 52] However,
according to the scientists, the usefulness of this information in
determining actual compliance was limited because observers could only
identify whether the pingers were attached to the net, not whether
these pingers functioned properly. On the Pacific Offshore Cetacean
team, the team coordinator stated that in the past, NMFS has received
information from the observer program about fishing vessels monitored
by observers that were not in compliance with the take reduction
regulations. However, she stated that NMFS does not routinely review
the observer information to identify or document the extent of these
instances or estimate the extent of overall compliance with the take
reduction regulations.
In addition to the information that it receives from the observer
programs, NMFS receives some information about compliance from NOAA's
Office of Law Enforcement, the U.S. Coast Guard, or state enforcement
agencies. Specifically, team coordinators told us that officials from
the U.S. Coast Guard attend take reduction team meetings to discuss
instances where the agencies found vessels out of compliance with take
reduction regulations during the course of their enforcement work.
However this information is not generally extensive enough to provide
overall assessments of the extent to which fisheries are complying with
the regulations.
In 2007, we reported that NMFS lacked a strategy for assessing industry
compliance with the Atlantic Large Whale team's take reduction plan,
and we recommended that it develop one.[Footnote 53] In response to our
report, the team is beginning to develop a comprehensive approach to
monitoring compliance. NMFS staff members are currently developing a
plan for take reduction team members to review during their next
meeting, which is planned for early 2009. No other take reduction teams
are developing comprehensive approaches for monitoring compliance at
this time.
Conclusions:
NMFS faces a very large, complex, and difficult task in trying to
protect marine mammals from incidental mortality and serious injury
during the course of commercial fishing operations, as the MMPA
requires. Without comprehensive, timely, and accurate population and
mortality data for the 156 marine mammal stocks that NMFS is charged
with protecting, NMFS may be unable to accurately identify stocks that
meet the legal requirements for establishing take reduction teams,
thereby depriving them of the protection they need to help recover or
maintain healthy populations. Conversely, unreliable data may lead NMFS
to erroneously establish teams for stocks that do not need them,
wasting NMFS's limited resources.
For those stocks that meet the requirements for establishing take
reduction teams, it is important that NMFS adhere to the deadlines in
the MMPA, as delays in establishing teams and developing and finalizing
take reduction plans could result in continued harm to already
dwindling marine mammal populations. However, we recognize that it may
not be useful to establish take reduction teams for those stocks that
meet the MMPA requirements but whose population declines are not being
caused by commercial fisheries. We also acknowledge it may not be
possible for NMFS to meet some of the MMPA's deadlines given the
requirements of other laws that NMFS must comply with in developing
take reduction plans and the need for various levels of review and
approval. Nonetheless, the MMPA's deadlines are clear, and unless the
law is amended to address these situations, NMFS has a legal obligation
to comply with them.
Finally, for stocks for which NMFS has developed take reduction
regulations, it is important for NMFS to assess their effectiveness in
reducing serious injury and mortality to acceptable levels. Doing so
will require more comprehensive information about the fishing
industry's compliance with take reduction regulations so that if the
short-and long-term goals are not met, NMFS knows whether to attribute
the failure to a flaw in the regulations or to noncompliance with them.
Without a comprehensive strategy for assessing the effectiveness of its
take reduction plans and implementing regulations and industry's
compliance with them, NMFS may be missing opportunities to better
protect marine mammals.
Matters for Congressional Consideration:
To facilitate the oversight of NMFS's progress and capacity to meet the
statutory requirements for take reduction teams, Congress may wish to
consider taking the following three actions:
* direct the Assistant Administrator of NMFS to report on major data,
resource, or other limitations that make it difficult for NMFS to
accurately determine which marine mammals meet the statutory
requirements for establishing take reduction teams; establish teams for
stocks that meet these requirements; and meet the statutory deadlines
for take reduction teams;
* amend the statutory requirements for establishing a take reduction
team to stipulate that not only must a marine mammal stock be strategic
and interacting with a Category I or II fishery, but that the fishery
with which the marine mammal stock interacts causes at least occasional
incidental mortality or serious injury of that particular marine mammal
stock; and:
* amend the MMPA to ensure that its deadlines give NMFS adequate time
to publish proposed and final take reduction plans and implementing
regulations while meeting all the requirements of the federal
rulemaking process.
Recommendation for Executive Action:
We recommend that the Assistant Administrator of NMFS develop a
comprehensive strategy for assessing the effectiveness of each take
reduction plan and implementing regulations, including, among other
things, establishing appropriate goals and steps for comprehensively
monitoring and analyzing rates of compliance with take reduction
measures.
Agency Comments and Our Evaluation:
We provided a draft copy of this report to the Secretary of Commerce
for review and comment. In response to our request, we received
general, technical, and editorial comments from NOAA by email, which
stated that the agency agreed with our recommendation that NMFS should
develop a comprehensive strategy for assessing the effectiveness of
each take reduction plan and the implementing regulations. We have
incorporated the technical and editorial comments provided by the
agency, as appropriate.
As we agreed with your office, unless you publicly announce the
contents of this report earlier, we plan no further distribution until
30 days from the report date. At that time, we will send copies to the
Secretary of Commerce, the Administrator of NOAA, and appropriate
congressional committees, and other interested parties. In addition,
the report will be available at no charge on the GAO Web site at
[hyperlink, http://www.gao.gov].
If you or your staff have any questions about this report or need
additional information, please contact me at (202) 512-3841 or
mittala@gao.gov. Contact points for our Offices of Congressional
Relations and Public:
Affairs may be found on the last page of this report. GAO staff who
made major contributions to this report are listed in appendix III.
Sincerely yours,
Signed by:
Anu K. Mittal:
Director, Natural Resources and Environment:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
The objectives of this review were to determine the extent to which (1)
available data allow the National Marine Fisheries Service (NMFS) to
accurately identify the marine mammal stocks that meet the Marine
Mammal Protection Act‘s (MMPA) requirements for establishing take
reduction teams, (2) NMFS has established take reduction teams for
those marine mammal stocks that meet the statutory requirements, (3)
NMFS has met the statutory deadlines established in the MMPA for the
take reduction teams subject to the deadlines and the reasons for any
delays, and (4) NMFS has developed a comprehensive strategy for
evaluating the effectiveness of the take reduction plans that have been
implemented.
To determine the extent to which available data allowed NMFS to
accurately identify marine mammal stocks that meet the MMPA‘s
requirements for establishing take reduction teams, we identified
stocks for which NMFS lacked data on either the human-caused mortality
and serious injury estimate (hereafter referred to as human-caused
mortality estimate) or the potential biological removal levels
(hereafter referred to as maximum removal levels).[Footnote 54] To do
this, we first reviewed all 156 stocks identified in NMFS‘s 2007 stock
assessment reports and removed 19 stocks currently covered by take
reduction teams. Then we removed 24 stocks that are listed as
endangered or threatened under the Endangered Species Act (ESA) or
designated as depleted under the MMPA because NMFS does not use
information about human-caused mortality and the maximum removal level
to make strategic status decisions for these stocks. We then reviewed
the remaining 113 stocks to identify those that lacked either a human-
caused mortality estimate or a maximum removal level. After identifying
those that lacked human-caused mortality or maximum removal levels, we
reviewed a sample of the remaining 74 stocks that did have these
determinations to assess the reliability of the information used to
determine human-caused mortality estimates and maximum removal levels.
We identified several key data elements in NMFS‘s stock assessment
reports that the agency uses to determine human-caused mortality
estimates and maximum removal levels:
* abundance estimates (population size estimates) and NMFS calculation
of the estimates‘ precision,
* the age of data used to calculate population size estimates,
* fishery-related mortality and serious injury estimates (hereafter
known as fishery-related mortality estimates) and NMFS calculation of
the estimates‘ precision,
* adjustments made to the maximum removal level in order to account for
fishery-related mortality estimate imprecision,
* information sources such as observer data used to calculate fishery-
related mortality estimates, and,
* qualitative information identified in the stock assessment reports
about scientists‘ concerns regarding data strengths or limitations.
We also identified criteria for assessing the quality of these data
elements using information from the MMPA and publications such as
NMFS‘s guidelines for preparing stock assessment reports and stock
assessment improvement plan and confirmed the criteria with NMFS
officials.[Footnote 55] While scientists and publications also
identified bias in population size and mortality estimates as a
potential data reliability problem, we did not assess the extent to
which existing data sources included bias because data and accompanying
criteria to make such an assessment were not available.
We then analyzed the key data elements for a sample of stocks to
determine the extent to which the data met the criteria we identified.
We chose our sample of stocks to review by conducting a stratified
random sample of the 74 stocks that were not currently covered by take
reduction teams, did not receive strategic status due to MMPA
designations or listings under the ESA, and had both human-caused
mortality and serious injury estimates and maximum removal levels. The
sample of 28 stocks included all strategic stocks that met these
criteria as well as a representative sample of stocks from each of the
three NMFS Fishery Science Centers responsible for publishing the stock
assessment reports. We then extrapolated the results of our review for
this sample to all 74 stocks that met the criteria listed above. We
calculated 95 percent confidence intervals for each of the estimates
made from this sample. The confidence intervals for these estimates are
presented in table 8.
Table 8: Confidence Intervals for Estimates Based on GAO‘s Review of
Selected Stock Assessment Reports:
Characteristics: Population estimates used information that was 8 years
old or older;
Estimated population total with this characteristic: 11;
95 percent confidence interval of the total estimate: 5 - 18.
Characteristics: Population size estimates used information that was
between 5 and 8 years old;
Estimated population total with this characteristic: 21;
95 percent confidence interval of the total estimate: 12 - 29.
Characteristics: Population size estimates were less precise than NMFS
guidelines recommend;
Estimated population total with this characteristic: 48;
95 percent confidence interval of the total estimate: 41 - 56.
Characteristics: Scientists could not calculate the precision of
fishery-related mortality estimates;
Estimated population total with this characteristic: 48;
95 percent confidence interval of the total estimate: 38 - 58.
Characteristics: Mortality estimates were less precise than NMFS
guidance recommends;
Estimated population total with this characteristic: 24;
95 percent confidence interval of the total estimate: 14 - 34
Source: GAO analysis.
[End of table]
We also spoke with NMFS and Marine Mammal Commission officials to
identify the potential impacts of using unreliable information to
determine human-caused mortality or maximum removal levels.
In some cases, we found potentially conflicting information within
individual stock assessment reports about whether fishery-related
mortality was unknown or estimated as zero. In these cases, we used the
information that NMFS provided in stock assessment report summary
tables to resolve the inconsistencies within the individual stock
assessment reports because we considered these estimates to be the
agency‘s final decision. In all cases, these summary tables identified
the fishery-related mortality estimates for these stocks as zero rather
than unknown.
To determine the extent to which NMFS has established take reduction
teams for those marine mammal stocks that meet the statutory
requirements, we analyzed stock assessment reports for 1995 through
2007 and lists of fisheries for 1996 through 2008 and identified marine
mammal stocks that met the statutory requirements for establishing take
reduction teams. To do this, we reviewed the MMPA and identified the
statutory requirements for establishing take reduction teams, then
interviewed officials from the National Oceanic and Atmospheric
Administration‘s (NOAA) Office of General Counsel to verify that we had
identified the correct requirements. We also analyzed the stock
assessment reports and list of fisheries and identified all of the
stocks that have met the statutory requirements, which include marine
mammal stocks that (1) were listed as strategic according to a final
stock assessment report and (2) interacted with a Category I or II
fishery according to a current list of fisheries. We developed a
database and used it to analyze this information. Once we identified
the marine mammal stocks that met the statutory requirements, we
verified with NMFS officials the stocks for which the agency has
already established take reduction teams. On the basis of this
information, we determined which stocks met the statutory requirements
but are not covered by a team. We met with NMFS officials to review and
verify our findings, and interviewed NMFS officials to obtain reasons
why the agency has not established take reduction teams for these
stocks. We also met with representatives of the Marine Mammal
Commission to review our findings.
To determine the extent to which NMFS has met the MMPA‘s deadlines for
the five take reduction teams subject to the deadlines and the reasons
for any delays, we:
* identified five key deadlines listed in the MMPA for NMFS and take
reduction teams and interviewed officials from NOAA‘s Office of General
Counsel to confirm the deadlines;
* obtained and reviewed documentation, such as take reduction plans,
Federal Register notices announcing the establishment of teams, and
NMFS‘s proposed and final take reduction plans and implementing
regulations published in the Federal Register;
* analyzed the dates published in the Federal Register documents to
determine whether each of the five take reduction teams had met their
statutory deadlines; and;
* met with NMFS officials to confirm the accuracy of our analysis of
information published in Federal Register notices.
To determine the reasons for any delays in meeting the statutory
deadlines, we interviewed take reduction team coordinators from NMFS‘s
Office of Protected Resources, officials from NOAA‘s Office of General
Counsel, marine biologists in NMFS‘s Fishery Science Centers, and
members of each of the five teams subject to the deadlines. We also
obtained and reviewed NMFS documentation about various laws and
executive orders that the agency must comply with when publishing
proposed and final take reduction plans in the Federal Register.
To determine the extent to which NMFS has developed a comprehensive
strategy for evaluating the effectiveness of the take reduction plans
that have been implemented, we reviewed the MMPA and relevant NMFS
documentation and spoke with NMFS officials and Scientific Review Group
chairs regarding the (1) performance goals used by NMFS to assess the
success of take reduction regulations, (2) actions taken prior to
implementing proposed regulations to increase the likelihood that the
regulations will achieve these performance goals, and (3) extent to
which NMFS has information about fisheries‘ compliance with implemented
take reduction regulations. We also reviewed stock assessment reports
from 1995 through 2007 for stocks covered by three of the four take
reduction teams with final regulations in place to determine whether
the stocks met the short- and long-term goals in each of those years.
[Footnote 56] To calculate whether the goals were met prior to
implementation of the take reduction regulations, we used the last year
for which the fishery-related mortality estimates in the stock
assessment reports did not include any information about incidental
take that was collected after the regulations were implemented. We
excluded the strategic bottlenose dolphins from our review due to
methodological differences between the way NMFS reports on fishery-
related mortality and maximum removal levels for them versus for the
other stocks. Specifically, due to concerns about the stock definition
for the Western North Atlantic coastal bottlenose dolphins covered by
the Bottlenose Dolphin take reduction team, NMFS further divides this
population into management units. NMFS identifies different fishery-
related mortality estimates for each of these management units, but not
for the Western North Atlantic coastal bottlenose dolphins as a whole,
making it difficult to determine whether the total population met the
short- and long-term goals. In addition, we assessed the reliability of
the data used to determine whether NMFS has met the goals for the
strategic stocks covered by three of the four take reduction teams with
final regulations. To do this, we analyzed the extent to which key data
elements met data quality criteria identified by the MMPA and NMFS. We
reviewed strategic stocks because they are most likely to be at
continued risk of fishery-related take leading to unsustainable
population declines. We also compared the data for the year prior to
when the regulations were first implemented with the data from 2007 to
identify any changes that occurred in meeting the goals before and
after the take reduction regulations went into effect.
We conducted this performance audit from September 2007 to December
2008 in accordance with generally accepted government auditing
standards. Those standards require that we plan and perform the audit
to obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions based on our audit objectives.
We believe that the evidence obtained provides a reasonable basis for
our findings and conclusions based on our audit objectives.
[End of section]
Appendix II: Commercial Fishing Techniques and How Marine Mammals Are
Affected:
The table below presents information about select commercial fishing
techniques, including the type of gear, how the injury or death occurs,
and examples of marine mammals affected.
Table 9: Commercial Fishing Techniques and How Marine Mammals Are
Affected:
Type of fishery: Gillnet;
Type of gear: A gillnet is a curtain of netting that hangs in the water
at various depths, suspended by a system of floats and weights.
Gillnets may sometimes be anchored. The mesh spaces are large enough
for a fish‘s head to pass through, but not its body. As fish, such as
sardines, salmon, or cod try to back out, their gills are entangled in
the net or buoy lines.
How injury or death occurs: Marine mammals get entangled in the nets or
fishing lines associated with the gear.
Examples of marine mammals affected: Dolphins (bottlenose and common);
Large whales (right, humpback, and sperm); Harbor porpoises.
Type of fishery: Longline;
Type of gear: Longline fishing is conducted by extending a central
fishing line behind a fishing boat that ranges from 1 to more than 50
miles long. This central line is strung with smaller lines of baited
hooks, which hang at spaced intervals. After leaving the line to soak
for a time to attract fish, fishermen return to haul in their catch,
such as tuna or swordfish.
How injury or death occurs: Marine mammals are attracted to the baited
hooks or the catch and become caught on the hooks or the catch on the
hooks. They might also come into accidental contact with gear and
become entangled in the fishing gear.
Examples of marine mammals affected: Dolphins (Risso‘s); Small whales
(pilot and false killer).
Type of fishery: Long-haul and beach-seine;
Type of gear: Long-haul seine fishing uses very large nets
(approximately 3,000 to 6,000 feet) pulled by two boats that encircle
fish, such as bluefish and croaker, and are then gathered together
around a fixed stake. Beach-seine fishing involves setting large nets
in the water near a beach with the top floating on the surface and
bottom falling deeper in the water. The nets are then pulled up onto
the beach, entrapping fish in their path.
How injury or death occurs: Marine mammals can get entangled in the
large nets that encircle fish.
Examples of marine mammals affected: Dolphins (bottlenose).
Type of fishery: Stop/pound nets;
Type of gear: Stop net fishing uses a stationary, anchored net extended
perpendicular to the beach. Once the catch accumulates near the end of
the stop net, a beach haul seine is used to capture fish and bring them
ashore. The stop net is traditionally left in the water for 1–5 days,
but can be left as long as 15 days. Stop nets are used to catch mullet.
Pound nets are stationary gear in nearshore coastal and estuarine
waters. Pound net gear includes a large mesh lead posted perpendicular
to the shoreline and extending outward to the corral, or ……heart,‘‘
where the catch accumulates. Pound nets typically catch weakfish, spot,
and croaker.
How injury or death occurs: Marine mammals can get entangled in the
stationary nets along with the fish the nets intend to catch.
Examples of marine mammals affected: Dolphins (bottlenose).
Type of fishery: Traps/pots;
Type of gear: Traps and pots are submerged cages that usually lie on
the ocean floor, attract fish or shellfish, and hold them alive until
fishermen return to haul in the gear. Ropes run between the cages along
the ocean floor and to a buoy floating at the surface, so fishermen can
locate their gear.
How injury or death occurs: Marine mammals get entangled in the rope
connecting the cages to each other and the floating buoy. Specifically,
right whales feed with their mouths open for extended periods of time
and can become entangled in ropes and other gear.
Examples of marine mammals affected: Large whales (right, humpback, and
fin); Dolphins (bottlenose).
Type of fishery: Trawl;
Type of gear: Trawlers tow a cone-shaped net behind a fishing boat.
They tow nets at various depths, ranging from just below the surface to
along the ocean floor, depending on the type of fish they are trying to
catch.
How injury or death occurs: Marine mammals become entangled or caught
within the nets.
Examples of marine mammals affected: Dolphins (common and white-sided);
Small whales (pilot).
Source: GAO analysis of data from the National Marine Fisheries Service
and the Monterey Bay Aquarium.
[End of table]
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
Anu K. Mittal, Director, (202) 512-3841, or mittala@gao.gov.
Staff Acknowledgments:
In addition to the individual named above, Stephen D. Secrist,
Assistant Director; Leo G. Acosta; Mark Braza; Carmen Donohue; Beth
Faraguna; Rich Johnson; Alison O‘Neill; Dae Park; Kim Raheb; Bruce
Skud; Jeanette Soares; and Barbara Steel-Lowney made significant
contributions to this report.
[End of section]
Footnotes:
[1] These five marine mammals are (1) Western Atlantic stock of North
Atlantic right whales, (2) Gulf of Maine stock of humpback whales, (3)
Gulf of Maine/Bay of Fundy stock of harbor porpoises, (4) California
stock of long-beaked common dolphins, and (5) Hawaii stock of false
killer whales.
[2] Under 16 U.S.C. § 1387(f)(3), if there is insufficient funding
available to develop and implement a take reduction plan for all stocks
that meet the requirements, the Secretary of Commerce must establish
teams according to the priorities listed in the statute. Further, under
16 U.S.C. § 1387(f)(3)(6)(A), the Secretary has the discretion to
establish take reduction teams for any marine mammal stock that
interacts with a Category I fishery and for which the Secretary has
determined, after notice and opportunity for public comment, has a high
level of mortality and serious injury across a number of such marine
mammal stocks.
[3] Optimum sustainable population is defined by the MMPA as ’with
respect to any population stock, the number of animals which will
result in the maximum productivity of the population or the species,
keeping in mind the carrying capacity of the habitat and the health of
the ecosystem of which they form a constituent element.“
[4] Specifically, a fishery is classified as Category I if it is by
itself responsible for the annual removal of 50 percent or more of any
stock‘s maximum removal level. A fishery is classified as Category II
if it is one that, collectively with other fisheries, is responsible
for the annual removal of more than 10 percent of any marine mammal
stock‘s maximum removal level and that is by itself responsible for the
annual removal of between 1 and 50 percent, exclusive, of any stock‘s
maximum removal level. Category III fisheries have a remote likelihood
of, or no known incidental mortality and serious injury of marine
mammals. Specifically, Category III fisheries include, among others,
those that collectively with other fisheries are responsible for the
annual removal of 10 percent or less of any marine mammal stock‘s
maximum removal level.
[5] If a strategic stock has human-caused mortality and serious injury
that is less than the maximum removal level and the stock interacts
with Category I or II fisheries, this deadline is 11 months instead of
6 months. The deadline is also 11 months for nonstrategic stocks
interacting with Category I fisheries that NMFS has found, after notice
and public comment, to have a high level of mortality across a number
of marine mammal stocks.
[6] If a take reduction team addressing a strategic stock whose human-
caused mortality and serious injury is above the maximum removal level
does not submit a draft plan to NMFS within 6 months, NMFS must publish
a proposed plan within 8 months of the team‘s establishment. For
strategic stocks whose human-caused mortality and serious injury is
below the maximum removal level but that interact with Category I or II
fisheries, NMFS‘s deadline is 13 months.
[7] One team––the Atlantic Trawl Gear––is not subject to the statutory
deadlines. NMFS established the Atlantic Trawl Gear take reduction team
as a result of a settlement agreement ending the 2002 lawsuit brought
by an environmental group. At the time of the settlement agreement, the
stocks covered by the team were strategic and interacting with Category
I fisheries. After conducting the research and surveys the settlement
required, NMFS realized that the stocks were not strategic. NMFS chose
to abide by the settlement agreement‘s requirement to establish the
team despite this change in the strategic status because the stocks
were interacting with a Category I fishery. The MMPA gives NMFS the
discretion to establish teams for nonstrategic stocks interacting with
Category I fisheries that NMFS has determined, after notice and public
comment, to have a high level of mortality across a number of marine
mammal stocks. However, at the present time, the fisheries involved are
no longer Category I fisheries and NMFS has never made the required
determination. The MMPA is silent on deadlines for teams, such as the
Atlantic Trawl Gear team, that address nonstrategic stocks that do not
interact with Category I fisheries. Therefore none of the deadlines
apply to this team.
[8] The Marine Mammal Commission is composed of three presidential
appointees who are knowledgeable in the fields of marine ecology and
resource management and are not in a position to profit from the taking
of marine mammals.
[9] The MMPA divides jurisdiction over marine mammals between the U.S.
Fish and Wildlife Service and NMFS but gives NMFS the exclusive
authority to establish take reduction teams and implement take
reduction plans for all marine mammals. NMFS has not established take
reduction teams for any of the marine mammals under the Fish and
Wildlife Service‘s jurisdiction (sea otters, polar bears, manatees,
dugongs, and walruses). This report focuses on marine mammals under
NMFS‘s jurisdiction.
[10] Under 16 U.S.C. § 1387(f)(3), highest priority must be given to
the development and implementation of take reduction plans for species
or stocks whose level of incidental mortality and serious injury
exceeds the maximum removal level, those that have a small population
size, and those that are declining most rapidly.
[11] A stock is also considered strategic if it is designated as
depleted under the MMPA or if it is listed or likely to be listed as
endangered or threatened under the Endangered Species Act. For these
stocks, human-caused mortality does not necessarily have to exceed the
maximum removal level.
[12] The minimum population estimate is an estimate of the number of
animals in a stock that (1) is based on the best available scientific
information on abundance, incorporating the precision and variability
associated with such information, and (2) provides reasonable assurance
that the stock size is equal to or greater than the estimate.
[13] Regional Scientific Review Groups were established by the 1994
amendments to the MMPA. The MMPA directs NMFS to identify members of
these groups in consultation with the Marine Mammal Commission, among
others.
[14] For the purposes of categorizing fisheries, NMFS uses only
estimates for fishery-related mortality rather than the estimates for
total human-caused mortality.
[15] Fisheries are classified as Category I if the fishery by itself is
responsible for the annual removal of 50 percent or more of any stock‘s
maximum removal level. A Category II fishery is one that, collectively
with other fisheries, is responsible for the annual removal of more
than 10 percent of any marine mammal stock‘s maximum removal level, and
by itself is responsible for the annual removal of between 1 and 50
percent, exclusive, of any stock‘s maximum removal level.
[16] Specifically, the MMPA requires the Secretary to publish the take
reduction plan proposed by the team, any changes proposed by the
Secretary with an explanation of the reasons for the changes, and
proposed regulations to implement such a plan.
[17] ’Small entities“ includes businesses, small governmental
jurisdictions, and certain not-for-profit organizations.
[18] Exec. Order No. 12866, 58 Fed. Reg. 51735 (Sept. 30, 1993); Exec.
Order No. 13,132, 64 Fed. Reg. 43255 (Aug. 4, 1999); Exec. Order No.
12898, 59 Fed. Reg. 7629 (Feb. 11, 1994); Exec. Order No. 13158, 65
Fed. Reg. 34909 (May 26, 2000).
[19] The MMPA directs NMFS to establish take reduction teams for stocks
designated as strategic that interact with Category I or II fisheries.
[20] NMFS has identified a total of 156 marine mammal stocks in United
States waters that are under its jurisdiction. However, a NMFS
scientist told us that additional marine mammals exist in the waters
off the Pacific islands under NMFS‘s jurisdiction that have not been
identified and defined as stocks because the agency does not have the
necessary data for these marine mammals. Our analysis of the stock
assessment reports focused on 113 of the 156 stocks that NMFS has
identified, excluding from our analysis the 19 stocks that are
currently addressed by take reduction teams and the 24 that are
designated as strategic because of ESA listing or MMPA designation and
therefore do not rely on human-caused mortality estimates and maximum
removal levels to determine strategic status.
[21] NOAA Fisheries National Task Force for Improving Marine Mammal and
Turtle Stock Assessments, A Requirements Plan for Improving the
Understanding of the Status of U.S. Protected Marine Species. National
Marine Fisheries Service, NOAA Technical Memorandum NMFS-F/SPO-63
(Silver Spring, Maryland: September 2004).
[22] We analyzed a stratified random sample of 28 stocks out of the 74
stocks that had both mortality estimates and maximum removal levels and
used the results from this sample to estimate the results for all 74
stocks. For this reason, numbers in the report about these 74 stocks
are described as approximations. We calculated 95 percent confidence
intervals for each of the estimates made from our sample. The
confidence intervals for these estimates are presented in appendix I,
table 8.
[23] NMFS guidelines identified data that are 8 years old or older as
unreliable because a population that declines at 10 percent per year
from a sustainable level would be reduced to less than 50 percent of
its original abundance in 8 years.
[24] National Marine Fisheries Service, Office of Protected Resources,
Review of Commercial Fisheries‘ Progress Toward Reducing Mortality and
Serious Injury of Marine Mammals Incidental to Commercial Fishing
Operations. United States Department of Commerce, National Oceanic and
Atmospheric Administration (Silver Spring, Maryland: 2004).
[25] NMFS calculates precision by identifying a coefficient of
variation (CV) for each estimate. The lower the CV percentage, the more
precise the estimate. NMFS‘s publications state that CVs of 30 percent
or lower are considered to have a desirable level of precision
appropriate for determining strategic status. Therefore, estimates with
CVs greater than 30 percent are less precise than NMFS guidelines
recommend.
[26] Scientists may use data sources––such as stranding data––that do
not allow them to make statistically based estimates of total fishery-
related mortality. A stranded marine mammal is either dead and on the
beach or shore, or in the water, or is alive and on the beach or shore
but unable to return to the water under its own power. Information from
such sources is anecdotal because it is not based on scientific
sampling techniques that are used to make generalizable estimates.
[27] According to NMFS officials, the National Observer Program uses
the following categories to characterize the observer coverage level
for fisheries: none, pilot, baseline, near-adequate, or adequate
coverage. NMFS officials stated that the agency often chooses not to
observe trap/pot fisheries because the nature of marine mammal
interactions with this type of fishing gear make it unlikely that an
observer would see any instances of incidental take.
[28] NOAA Fisheries National Task Force for Improving Marine Mammal and
Turtle Stock Assessments, A Requirements Plan for Improving the
Understanding of the Status of U.S. Protected Marine Species.
[29] The two take reduction teams no longer in existence were the
Atlantic Offshore Cetacean and Mid-Atlantic take reduction teams. Some
of the stocks covered by the Atlantic Offshore Cetacean team are now
covered by the Pelagic Longline and Atlantic Trawl Gear teams. The Mid-
Atlantic take reduction team merged with the Gulf of Maine Harbor
Porpoise team, and both teams covered the same stock of harbor
porpoises. The merged team is now referred to by NMFS as the Harbor
Porpoise team.
[30] According to NMFS‘s 2007 stock assessment reports.
[31] In the Gulf of Mexico, the two strategic stocks are the Northern
Gulf of Mexico coastal stock and the Gulf of Mexico bay, sound, and
estuarine stock of bottlenose dolphins. In the waters off Alaska‘s
coast, the six strategic stocks are the Gulf of Alaska, Bering Sea, and
Southeast Alaska stocks of harbor porpoises; the Western and Eastern
U.S. stocks of Steller sea lions; and the Western North Pacific stock
of humpback whales.
[32] The Gulf of Mexico Gillnet fishery and the Gulf of Mexico Menhaden
Purse Seine fishery.
[33] Sperm whales meet the statutory requirements for establishing a
team because they are strategic and interact with a Category I fishery,
but this fishery is a Category I fishery because of its incidental take
of other marine mammal stocks.
[34] As explained in footnote 7, the Atlantic Trawl Gear team is not
subject to the MMPA‘s deadlines.
[35] From 1996 to 2001, these whales were covered by a former take
reduction team known as the Atlantic Offshore Cetacean team, but this
team was disbanded in 2001 without the publication of a final take
reduction plan.
[36] According to the Federal Register notice announcing the
establishment of the Mid-Atlantic take reduction team, the team was not
established to address bottlenose dolphins. At preestablishment
meetings, NMFS and the team determined that there was not enough
information available about the bottlenose dolphins to implement a take
reduction plan at that time and agreed to delay establishing a take
reduction team and developing a take reduction plan specific to
bottlenose dolphins until more information was obtained. However, the
team provided NMFS with research and data recommendations that
addressed bottlenose dolphins in its 1997 draft take reduction plan.
[37] The three teams are the Atlantic Large Whale, Harbor Porpoise, and
Pacific Offshore Cetacean.
[38] Because the deadline for publication of the Pelagic Longline final
plan occurred after we had concluded our audit work, we did not
interview NMFS to ascertain the reasons for the delay.
[39] For example, see GAO, The Results Act: An Evaluator‘s Guide to
Assessing Agency Annual Performance Plans, GAO/GGD-10.1.20 (Washington,
D.C.: April 1998).
[40] The long-term goal is also known as the zero mortality rate goal
(ZMRG) or reducing incidental take to an insignificant level
approaching a zero mortality and serious injury rate. The goal of
commercial fisheries reducing mortality and serious injuries to
insignificant levels approaching a zero mortality rate goal within 5
years of a take reduction plan‘s implementation must take ’into account
the economics of the fishery, the availability of existing technology,
and existing state or regional fishery management plans.“ The MMPA also
has a deadline of April 30, 2001, for ’commercial fisheries to reduce
mortality and serious injuries to insignificant levels approaching a
zero mortality rate goal.“ The MMPA does not define ZMRG, but NMFS has
defined ’insignificance threshold“ as the default target level of
mortality and serious injury for all marine mammal stocks. Under NMFS‘s
regulation, take reduction plans and implementing regulations are the
mechanisms that help Category I and II fisheries meet the
insignificance threshold but these take reduction plans and regulations
must take into account the fishery‘s economics, availability of
existing technology, and existing fishery management plans.
[41] These are the California/Oregon/Washington stock of long-beaked
common dolphins and what is now called the Gulf of Maine stock of
humpback whales.
[42] In some cases, strategic stocks could be meeting the goal of
reducing fishery-related mortality to below the maximum removal level
prior to implementation. Specifically, this might be the case for
stocks that receive their strategic status determination through an ESA
listing or designation as depleted under the MMPA.
[43] While NMFS‘s guidance provides that the long-term goal must take
into account the economics of the fishery, the availability of existing
technology, and existing state or regional fishery management plans,
the agency has not specified how it considers these factors in
establishing long-term goals for the current take reduction plans.
Therefore we examined whether or not the long-term goals had been met
by assessing whether fishery-related mortality was less than 10 percent
of the maximum removal level. We used data from 2007 to measure whether
the goals had been met rather than measuring 5 years after the
implementation of each plan‘s regulations in order to make general
determinations about whether these goals are adequate measures of
success.
[44] These are the Western North Atlantic stock of fin whales and the
Canadian East Coast stock of minke whales. NMFS told us that because
minke whales are not a strategic stock, they are not relevant in
assessing NMFS‘s achievement of the long-term goal. However, the
Atlantic Large Whale take reduction plan states that a goal of the plan
is to reduce entanglement-related serious injury of minke whales to
insignificant levels approaching zero mortality and serious injury
rate. Thus, NMFS has stated its intent in the plan to achieve the long-
term goal for the minke whales.
[45] The two stocks that had already met the short-term goal were the
Western North Atlantic stock of fin whales and the
California/Oregon/Washington stock of fin whales. The two stocks that
had already met the long-term goal were the
California/Oregon/Washington stock of fin whales and the
California/Oregon/Washington stock of short-beaked common dolphins.
[46] There are currently 13 stocks––10 strategic and 3
nonstrategic––covered by take reduction regulations. According to the
MMPA, as amended, the short-term goal is applicable only to strategic
stocks. Under authority granted by the MMPA, NMFS may choose to
establish teams for nonstrategic stocks, but these stocks are subject
only to the long-term goal of reducing fishery-related mortality to 10
percent of the maximum removal level. However, by definition, these
stocks have already met the short-term goal.
[47] Western North Atlantic coastal bottlenose dolphins are also
strategic. We chose not to assess progress by the Bottlenose Dolphin
take reduction team in meeting the goals due to the unique data
collection system that NMFS uses for this team. Specifically, due to
concerns about the stock definition for the Western North Atlantic
coastal bottlenose dolphins covered by the Bottlenose Dolphin take
reduction team, NMFS further divides this population into management
units. NMFS identifies different fishery-related mortality estimates
for each of these management units, but not for the Western North
Atlantic coastal bottlenose dolphins as a whole, making it difficult to
determine whether the total population met the short- and long-term
goals.
[48] The humpback whale is listed as an endangered species under the
ESA and therefore is designated as strategic even though human-caused
mortality was lower than the maximum removal level when the take
reduction team was established.
[49] Marjorie C. Rossman and Debra L. Palka, ’A Review of Coastal
Bottlenose Dolphin Bycatch Mortality Estimates in Relation to the
Potential Effectiveness of the Proposed CBDTRP.“ Northeast Fisheries
Science Center Protected Species Branch (Woods Hole, Massachusetts:
2004).
[50] Office of Protected Resources, National Marine Fisheries Service,
Harbor Porpoise Take Reduction Plan (HPTRP) Final Environmental
Assessment and Final Regulatory Flexibility Analysis (Silver Spring,
Maryland: 1998).
[51] Fishery observer programs place individuals on commercial fishing
vessels to observe operations, including documenting any instances of
incidental take of marine mammals.
[52] Debra Palka, ’Effect of Pingers on Harbor Porpoise and Seal
Bycatch.“ Northeast Fisheries Science Center (Woods Hole,
Massachusetts: 2007).
[53] GAO, National Marine Fisheries Service: Improved Economic Analysis
and Evaluation Strategies Needed for Proposed Changes to Atlantic Large
Whale Protection Plan, [hyperlink,
http://www.gao.gov/products/GAO-07-881] (Washington, D.C.: July 20,
2007).
[54] Maximum removal level is defined as the maximum number of
animals––not including natural mortalities––that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population.
[55] National Marine Fisheries Service, Guidelines for Preparing Stock
Assessment Reports Pursuant to Section 117 of the Marine Mammal
Protection Act: SAR Guidelines, June 2005 Revision. (Silver Spring,
Maryland: June 2005), and NOAA Fisheries National Task Force for
Improving Marine Mammal and Turtle Stock Assessments, A Requirements
Plan for Improving the Understanding of the Status of U.S. Protected
Marine Species. National Marine Fisheries Service, NOAA Technical
Memorandum NMFS-F/SPO-63 (Silver Spring, Maryland: September 2004).
[56] Three stocks, the Canadian East Coast stock of minke whales, the
California/Oregon/Washington stock of northern right whale dolphins,
and the California/Oregon/Washington stock of short-beaked common
dolphins, were included in the teams even though they were not
strategic when the teams were established. In accordance with the MMPA,
only the long-term goal applies to these stocks, so we did not analyze
whether these stocks had met the short-term goal.
[End of section]
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