National Marine Fisheries Service: Improvements Are Needed in the Federal Process Used to Protect Marine Mammals from Commercial Fishing
Released: 2009-01-07T00:00:00

Letter

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. 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.

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. 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.

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. 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.

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. 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.

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. 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. 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.

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.

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.

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. 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).

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.

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. 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.

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).

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).

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.

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. 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. 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.

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. 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.

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 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.

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). 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.

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.

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

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.