National Marine Fisheries Service: Improvements Are Needed in the Federal Process Used to Protect Marine Mammals from Commercial Fishing
Published: 2008-12-08T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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 For most stocks, NMFS relies on incomplete, outdated, or imprecise data on stocks' population size or mortality to calculate the extent of incidental take.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.

section_title: Letter
paragraphs: 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.
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. 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.
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.
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.
NMFS must publish a proposed take reduction plan in the Federal Register  within 60 days of receiving the team’s draft plan.
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. 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.
subsections: section_title: Background
paragraphs: 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. 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. 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. For the majority of stocks, NMFS determines strategic status  by comparing whether human-caused mortality exceeds the maximum  removal level (see fig. 1). 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.
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.
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. 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. 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.
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. 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.
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. 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.
section_title: NMFS Faces Significant Challenges in Accurately Identifying Marine Mammal Stocks That Meet the Statutory Requirements for Establishing Take Reduction Teams because of Data Limitations
paragraphs: 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.
subsections: section_title: Incomplete Information Reduces the Reliability of NMFS’s Strategic Status Determinations
paragraphs: 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. 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. 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. 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.
section_title: Outdated Information Reduces the Reliability of NMFS’s Strategic Status Determinations
paragraphs: 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. 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. 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.
section_title: Imprecise Information Reduces the Reliability of NMFS’s Strategic Status Determinations
paragraphs: 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. 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. 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. 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.
section_title: Funding Constraints Limit NMFS’s Ability to Gather Sufficient Data, but the Agency Has Taken Some Steps to Identify Data Needs
paragraphs: 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. 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.
section_title: NMFS Has Not Established Teams for Many Marine Mammals That Have Met the Statutory Requirements of the MMPA for a Variety of Reasons
paragraphs: 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.
subsections: section_title: NMFS Has Established Teams for 16 Marine Mammals That Have Met the Requirements of the MMPA
paragraphs: 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. 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.
section_title: NMFS Has Not Established Teams for 14 Other Marine Mammals That Have Also Met the Requirements of the MMPA
paragraphs: 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.
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. 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. 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. 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. 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.
section_title: NMFS Has Had Limited Success in Meeting the Statutory Deadlines for Take Reduction Teams for a Variety of Reasons
paragraphs: 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.  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.
subsections: section_title: NMFS Did Not Establish Three of the Five Teams within the Statutory Deadlines
paragraphs: 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).
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. 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. 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.
section_title: Two Teams Did Not Develop and Submit Draft Take Reduction Plans within the Statutory Deadlines
paragraphs: 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. 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.
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.
section_title: NMFS Did Not Publish Proposed Take Reduction Plans for Five Teams within the Statutory Deadlines for a Variety of Reasons
paragraphs: 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).
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.
section_title: NMFS Has Complied with the Statutory Deadlines for Public Comment Periods
paragraphs: 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.
section_title: NMFS Did Not Publish Final Take Reduction Plans for Four of the Five Teams within the Statutory Deadlines
paragraphs: 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).
According to NMFS officials, the reasons for delays in publishing final  plans and implementing regulations in the Federal Register include the  following:  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.
section_title: NMFS Does Not Have a Comprehensive Strategy for Evaluating the Effectiveness of Take Reduction Regulations
paragraphs: 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. 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.
subsections: section_title: Limitations in the Goals and Data That NMFS Currently Uses to Evaluate the Success of Take Reduction Regulations Impede Effective Program Evaluations
paragraphs: 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. 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, the short-term  goal had been met prior to the regulations being implemented but was no  longer being met in 2007. In addition, for two other stocks, the long-term  goal had been met prior to implementation of the regulations, but was no  longer being met in 2007. 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. 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. 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. 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. 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.
section_title: NMFS Studies the Impact of Proposed Take Reduction Regulations prior to Their Implementation, but Has Limited Information about Industry Compliance
paragraphs: 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. 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.
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. 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.  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. 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.
section_title: Conclusions
paragraphs: 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.
section_title: Matters for Congressional Consideration
paragraphs: 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.
section_title: Recommendation for Executive Action
paragraphs: 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.
section_title: Agency Comments and Our Evaluation
paragraphs: 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.
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section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: 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). 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. 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.
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. 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.
section_title: Appendix II: Commercial Fishing Techniques and How Marine Mammals Are Affected
paragraphs: 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.
section_title: Appendix III: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: 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.