National Marine Fisheries Service:

Improvements Are Needed in the Federal Process Used to Protect Marine Mammals from Commercial Fishing

GAO-09-78: Published: Dec 8, 2008. Publicly Released: Jan 7, 2009.

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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.

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 For most stocks, NMFS relies on incomplete, outdated, or imprecise data on stocks' population size or mortality to calculate the extent of incidental take.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.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Matters for Congressional Consideration

    Matter: To facilitate the oversight of NMFS's progress and capacity to meet the statutory requirements for take reduction teams, Congress may wish to consider amending 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.

    Status: Closed - Not Implemented

    Comments: On September 27, 2013, GAO's Office of General Counsel confirmed that the Marine Mammal Protection Act was not amended to address this matter for consideration.

    Matter: To facilitate the oversight of NMFS's progress and capacity to meet the statutory requirements for take reduction teams, Congress may wish to consider directing 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.

    Status: Closed - Not Implemented

    Comments: On September 27, 2013, GAO's Office of General Counsel confirmed that the Marine Mammal Protection Act was not amended to address this matter for consideration.

    Matter: To facilitate the oversight of NMFS's progress and capacity to meet the statutory requirements for take reduction teams, Congress may wish to consider amending 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.

    Status: Closed - Not Implemented

    Comments: On September 27, 2013, GAO's Office of General Counsel confirmed that the Marine Mammal Protection Act was not amended to address this matter for consideration.

    Recommendation for Executive Action

    Recommendation: The Assistant Administrator of NMFS should 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 Affected: Department of Commerce: National Oceanic and Atmospheric Administration: National Marine Fisheries Service

    Status: Closed - Implemented

    Comments: On September 24, 2013, we received documentation from the agency supporting their assertion that they developed comprehensive monitoring strategies for assessing the effectiveness of each take reduction plan and implementing regulations, including, among other things, establishing steps for comprehensively monitoring and analyzing rates of compliance with take reduction measures. Specifically, in January 2009, NMFS developed an audit action plan in response to our recommendation. The audit action plan included several actions needed prior to implementing our recommendation, that is actions that preceded developing comprehensive monitoring strategies to evaluate the effectiveness of each take reduction plan. The agency completed the first monitoring strategy in April 2010 and finalized the last strategy on September 17, 2013, which resulted in full implementation of the recommendation.

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