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entitled 'National Marine Fisheries Service: Improvements Are Needed in 
the Federal Process Used to Protect Marine Mammals from Commercial 
Fishing' which was released on January 7, 2009.

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Report to the Chairman, Committee on Natural Resources, House of 
Representatives: 

United States Government Accountability Office: 
GAO: 

December 2008: 

National Marine Fisheries Service: 

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

GAO-09-78: 

GAO Highlights: 

Highlights of GAO-09-78, a report to the Chairman, Committee on Natural 
Resources, House of Representatives. 

Why GAO Did This Study: 

Because marine mammals, such as whales and dolphins, often inhabit 
waters where commercial fishing occurs, they can become entangled in 
fishing gear, which may injure or kill them––this is referred to as 
“incidental take.” The 1994 amendments to the Marine Mammal Protection 
Act (MMPA) require the National Marine Fisheries Service (NMFS) to 
establish take reduction teams for certain marine mammals to develop 
measures to reduce their incidental takes. GAO was asked to determine 
the extent to which NMFS (1) can accurately identify the marine mammal 
stocks—generally a population of animals of the same species located in 
a common area—that meet the MMPA’s requirements for establishing such 
teams, (2) has established teams for those stocks that meet the 
requirements, (3) has met the MMPA’s deadlines for the teams subject to 
them, and (4) evaluates the effectiveness of take reduction 
regulations. GAO reviewed the MMPA, and NMFS data on marine mammals, 
and take reduction team documents and obtained the views of NMFS 
officials, scientists, and take reduction team members. 

What GAO Found: 

Significant limitations in available data make it difficult for NMFS to 
accurately determine which marine mammal stocks meet the statutory 
requirements for establishing take reduction teams. For most stocks, 
NMFS relies on incomplete, outdated, or imprecise data on stocks’ 
population size or mortality to calculate the extent of incidental 
take. As a result, the agency may overlook some marine mammal stocks 
that meet the MMPA’s requirements for establishing teams or 
inappropriately identify others as meeting them. NMFS officials told 
GAO they are aware of the data limitations but lack funding to 
implement their plans to improve the data. 

On the basis of NMFS’s available information, GAO identified 30 marine 
mammal stocks that have met the MMPA’s requirements for establishing a 
take reduction team, and NMFS has established six teams that cover 16 
of them. For the other 14 stocks, the agency has not complied with the 
MMPA’s requirements. For example, false killer whales, found off the 
Hawaiian Islands, have met the statutory requirements since 2004, but 
NMFS has not established a team for them because, according to NMFS 
officials, the agency lacks sufficient funds. NMFS officials told GAO 
that the agency has not established teams for the other stocks that 
meet the MMPA’s requirements for reasons such as the following: (1) 
data on these stocks are outdated or incomplete, and the agency lacks 
funds to obtain better information and (2) causes other than fishery-
related incidental take, such as sonar used by the U.S. Navy, may 
contribute to their injury or death, therefore changes to fishing 
practices would not solve the problem. 

For the five take reduction teams subject to the MMPA’s deadlines, the 
agency has had limited success in meeting the deadlines for 
establishing teams, developing draft take reduction plans, and 
publishing proposed and final plans and regulations to implement them. 
For example, NMFS established three of the five teams—the Atlantic 
Large Whale, Pelagic Longline, and Bottlenose Dolphin—from 3 months to 
over 5 years past the deadline. NMFS officials attributed the delays in 
establishing one of the teams to a lack of information about stock 
population size and mortality, which teams need to consider before 
developing draft take reduction plans. 

NMFS does not have a comprehensive strategy for assessing the 
effectiveness of take reduction plans and implementing regulations that 
have been implemented. NMFS has taken some steps to define goals, 
monitor compliance, and assess whether the goals have been met, but 
shortcomings in its approach and limitations in its performance data 
weaken its ability to assess the success of its take reduction 
regulations. For example, without adequate information about 
compliance, if incidental takes continue once the regulations have been 
implemented, it will be difficult to determine whether the regulations 
were ineffective or whether the fisheries were not complying with them. 

What GAO Recommends: 

GAO is proposing matters for congressional consideration, including 
requiring NMFS to report on the data, resource, and other limitations 
that prevent it from meeting the MMPA’s requirements for take reduction 
teams; and recommending that NMFS develop a comprehensive strategy for 
assessing plan effectiveness. The agency agreed with our recommendation 
to develop such a strategy. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-09-78]. For more 
information, contact Anu Mittal at (202) 512-3841 or mittala@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

NMFS Faces Significant Challenges in Accurately Identifying Marine 
Mammal Stocks That Meet the Statutory Requirements for Establishing 
Take Reduction Teams because of Data Limitations: 

NMFS Has Not Established Teams for Many Marine Mammals That Have Met 
the Statutory Requirements of the MMPA for a Variety of Reasons: 

NMFS Has Had Limited Success in Meeting the Statutory Deadlines for 
Take Reduction Teams for a Variety of Reasons: 

NMFS Does Not Have a Comprehensive Strategy for Evaluating the 
Effectiveness of Take Reduction Regulations: 

Conclusions: 

Matters for Congressional Consideration: 

Recommendation for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: Commercial Fishing Techniques and How Marine Mammals Are 
Affected: 

Appendix III: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: MMPA's Take Reduction Team Requirements and Deadlines: 

Table 2: Marine Mammals That Have Met the MMPA's Requirements for 
Establishing a Take Reduction Team and for Which NMFS Has Established a 
Team: 

Table 3: Marine Mammals Stocks That Have Met the MMPA's Requirements 
for Establishing a Take Reduction Team, but NMFS Has Not Established a 
Team: 

Table 4: Delays in Establishing Take Reduction Teams: 

Table 5: Delays in Developing and Submitting Draft Take Reduction 
Plans: 

Table 6: Delays in Publishing Proposed Take Reduction Plans: 

Table 7: Delays in Publishing Final Take Reduction Plans: 

Table 8: Confidence Intervals for Estimates Based on GAO's Review of 
Selected Stock Assessment Reports: 

Table 9: Commercial Fishing Techniques and How Marine Mammals Are 
Affected: 

Figures: 

Figure 1: Determining Strategic Status by Comparing Human-Caused 
Mortality to the Maximum Removal Level: 

Figure 2: Information Limitations Make It Difficult to Accurately 
Determine Strategic Status: 

Abbreviations: 

CV: coefficient of variation: 

ESA: Endangered Species Act: 

MMPA: Marine Mammal Protection Act: 

NMFS: National Marine Fisheries Service: 

NOAA: National Oceanic and Atmospheric Administration: 

OMB: Office of Management and Budget: 

[End of section] 

United States Government Accountability Office:
Washington, DC 20548: 

December 8, 2008: 

The Honorable Nick J. Rahall II: 
Chairman: 
Committee on Natural Resources: 
House of Representatives: 

Dear Mr. Chairman: 

Marine mammals--such as whales, dolphins, and porpoises--often swim or 
feed in waters where commercial fishing occurs and can become entangled 
in fishing gear, which may seriously injure or kill them--this is 
referred to as "incidental take." The National Oceanic and Atmospheric 
Administration's (NOAA) National Marine Fisheries Service (NMFS) 
estimates that commercial fishing operations result in thousands of 
such incidental takes each year. For example, large whales, such as the 
North Atlantic right whale, may become entangled in the lines that 
connect lobster traps; smaller pilot whales may become entangled in 
longline fishing gear used to catch fish such as tuna or swordfish; and 
dolphins and porpoises may become entangled in commercial fishing nets 
used to catch sardines, salmon, or cod. For at least five marine 
mammals, incidental takes as a result of commercial fishing operations 
are occurring at unsustainable levels.[Footnote 1] 

The 1994 amendments to the Marine Mammal Protection Act (MMPA) of 1972 
require NMFS to establish take reduction teams to develop regulatory or 
voluntary measures for the reduction of incidental mortality and 
serious injury to marine mammals during the course of commercial 
fishing operations. Under the MMPA, NMFS, in general, must establish 
take reduction teams for each marine mammal strategic stock that 
interacts with a Category I or Category II commercial fishery. 
[Footnote 2] These key terms are defined as follows: 

* A commercial fishery is a group of fishermen who use similar gear to 
catch the same types of fish, in a common geographic area, and then 
sell them. 

* A Category I fishery is a commercial fishery that has frequent 
incidental takes of marine mammals, while a Category II fishery has 
occasional incidental takes. 

* A stock is a group of marine mammals of the same species located in a 
common spatial arrangement that interbreed when mature. 

The MMPA defines a marine mammal stock as strategic, if it (1) is 
listed as threatened or endangered under the Endangered Species Act 
(ESA), (2) is declining and likely to be listed as a threatened species 
under the ESA within the foreseeable future, (3) is designated as 
depleted under the MMPA, or (4) has a level of direct human-caused 
mortality and serious injury that exceeds the stock's potential 
biological removal level. In this report we use the term "maximum 
removal level," rather than potential biological removal level; this 
term is defined as the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population.[Footnote 3] 

NMFS periodically surveys marine mammal populations to determine 
whether they are growing, remaining stable, or declining, so that it 
can calculate the maximum removal level. The results of this research 
are published in annual stock assessment reports for 156 stocks that 
fall under NMFS's jurisdiction. Additionally, NMFS annually publishes 
lists that classify commercial fisheries as Category I, II, or III 
based on data such as those from observers who are placed on boats, 
logbooks that are kept by fishermen, and data gathered by scientists at 
universities and government agencies, among others, documenting 
instances where marine mammals are found stranded or dead as a result 
of fishing or other human causes.[Footnote 4] 

According to the MMPA, take reduction teams must include 
representatives from the commercial fishing industry, Regional Fishery 
Management Councils, interstate fisheries commissions, environmental 
groups, academic and scientific organizations, and state and federal 
governments. Once NMFS has established a team, the members meet, review 
the available information regarding marine mammal takes and fisheries 
interactions, and develop draft take reduction plans. The plans 
recommend regulatory and voluntary measures, such as modifications in 
fishing gear or practices that should reduce serious injury or 
mortality of marine mammals caused by commercial fishing. As specified 
in the MMPA, NMFS then translates these draft plans into final take 
reduction plans and implementing regulations. 

The 1994 amendments to the MMPA set several deadlines for establishing 
take reduction teams, developing draft take reduction plans, and 
publishing proposed and final plans and implementing regulations. 
Specifically, 

* NMFS must establish a take reduction team within 30 days after a 
final stock assessment report indicates that a stock is strategic and 
it is listed in the current list of fisheries as interacting with a 
Category I or II fishery. 

* Take reduction team members must develop a draft plan and submit the 
plan to NMFS within 6 months after the take reduction team is 
established.[Footnote 5] 

* NMFS must publish a proposed take reduction plan in the Federal 
Register within 60 days of receiving the team's draft plan.[Footnote 6] 

* NMFS must hold a public comment period on the proposed take reduction 
plan for up to 90 days after its publication. 

* NMFS must publish a final take reduction plan in the Federal Register 
60 days after the public comment period on the proposed plan ends. 

As Congress prepares to consider the reauthorization of the MMPA, you 
asked us to determine the extent to which (1) available data allow NMFS 
to accurately identify the marine mammal stocks that meet the MMPA's 
requirements for establishing take reduction teams; (2) NMFS has 
established take reduction teams for those marine mammal stocks that 
meet the statutory requirements; (3) NMFS has met the statutory 
deadlines established in the MMPA for the take reduction teams subject 
to the deadlines, and the reasons for any delays; and (4) NMFS has 
developed a comprehensive strategy for evaluating the effectiveness of 
the take reduction plans that have been implemented. 

To determine the extent to which available data allow NMFS to identify 
the marine mammal stocks that meet the MMPA's requirements for 
establishing take reduction teams, we identified several key data 
elements, such as human-caused mortality estimates and maximum removal 
levels, that NMFS uses to determine whether a marine mammal stock meets 
the statutory requirements for establishing a take reduction team, as 
well as the criteria NMFS uses to assess data quality for these key 
data elements. We then reviewed all of the 2007 marine mammal stock 
assessment reports and analyzed reports for the 113 stocks not 
currently covered by take reduction teams and not listed as threatened 
or endangered species or designated as depleted species. After removing 
those that lacked human-caused mortality estimates or maximum removal 
levels, we reviewed a sample of the remaining 74 stocks that did have 
these determinations to assess the reliability of the information used 
to determine human-caused mortality estimates and the maximum removal 
levels. We reviewed a sample of the reports for these stocks to 
identify any data uncertainties that may limit NMFS's ability to 
accurately identify stocks that meet the statutory requirements for 
establishing take reduction teams. To determine the extent to which 
NMFS has established take reduction teams, we analyzed stock assessment 
reports and lists of fisheries from 1995 through 2008 to identify 
marine mammal stocks that meet the statutory requirements but are not 
currently covered by a team. Additionally, we interviewed NMFS 
officials and obtained documentation on the stocks for which the agency 
has established take reduction teams. To identify the extent to which 
NMFS has met the deadlines established in the MMPA, we identified the 
deadlines listed in the MMPA for take reduction teams and obtained 
documentation, such as take reduction plans and implementing 
regulations, to determine whether NMFS met the statutory deadlines. To 
identify the reasons for any delays in meeting the statutory deadlines, 
we interviewed the NMFS staff members that coordinate the take 
reduction teams, staff from NOAA's Office of General Counsel, marine 
biologists in NMFS's Fishery Science Centers, and members of each of 
the five take reduction teams subject to the MMPA's deadlines.[Footnote 
7] To identify the extent to which NMFS has developed a comprehensive 
strategy for evaluating the effectiveness of its take reduction plans, 
we reviewed data from stock assessment reports on the level of fishery- 
related mortality and serious injury as well as maximum removal levels 
before and after a plan's implementation. We also interviewed NMFS 
officials, including agency staff that coordinate take reduction teams, 
regarding how they assess the effectiveness of take reduction plans. We 
conducted this performance audit from September 2007 to December 2008 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. Appendix I provides 
additional detail on our scope and methodology. 

Results in Brief: 

Significant limitations in available information make it difficult for 
NMFS to accurately determine which marine mammal stocks meet the 
statutory requirements for establishing take reduction teams. For most 
stocks, NMFS relies on incomplete, outdated, or imprecise information 
about human-caused mortality or the maximum removal level to calculate 
whether incidental take is above acceptable levels and thereby 
determine if the stocks meet the MMPA's definition of "strategic"--one 
of two triggers for establishing a take reduction team. For example, 
our review of stock assessment reports found that NMFS did not have a 
human-caused mortality estimate or a maximum removal level for 39 of 
113 marine mammal stocks, making it impossible to determine their 
strategic status in accordance with the MMPA's requirements. For the 
remaining 74 stocks, NMFS has some data to determine whether incidental 
takes exceeded acceptable levels, but these data have significant 
limitations that call into question their accuracy. Specifically, for 
an estimated 11 of the 74 stocks, the maximum removal levels were based 
on information that was 8 years old or older. Marine mammal research 
has shown that using such outdated data increases the possibility that 
significant population declines could have occurred of which NMFS is 
unaware. In addition, our review of a sample of stock assessment 
reports from 2007 frequently found that NMFS used population size and 
fishery-related mortality estimates that were less precise than 
recommended by the agency's own guidance, decreasing the likelihood 
that strategic status determinations based on this information are 
accurate. Relying on incomplete, outdated, or imprecise information 
about human-caused mortality and maximum removal levels may lead NMFS 
to overlook some marine mammal stocks that meet the statutory 
requirements for establishing take reduction teams or inappropriately 
identify others as meeting them. NMFS officials told us that funding 
constraints limit their ability to gather sufficient data, although the 
agency has taken some steps to identify its data needs. For example, in 
a 2004 study, NMFS identified the actions and resources needed to 
improve the marine mammal stock assessment data that support MMPA 
decisions; however, officials told us that they have not received the 
resources necessary to complete the actions identified in the report. 

On the basis of NMFS's available information, we identified 30 marine 
mammal stocks that met the MMPA's requirement for establishing a take 
reduction team, and NMFS has established six teams that cover 16 of 
them. For the 14 other marine mammal stocks for which the agency's 
available information shows them to be strategic and interacting with 
Category I or II fisheries, NMFS has not complied with the MMPA's 
requirement to establish take reduction teams and, in some cases, has 
not been in compliance for several years. NMFS officials told us that 
the agency has not established teams for these 14 marine mammal stocks 
for various reasons. First, the agency lacked sufficient funds to 
establish a team for one marine mammal stock--the Hawaiian stock of 
false killer whales--that has met the statutory requirements since 
2004. Second, for 8 of the 14 stocks, NMFS information about the 
stocks' population size or mortality is outdated or incomplete, and the 
agency lacks funds to obtain better information. Third, for 4 of the 14 
stocks, commercial fisheries account for few or no incidental takes, 
and other causes, such as acoustic activities, for example, sonar used 
by the U.S. Navy, may contribute to the serious injury and mortality of 
some of these stocks, so establishing teams for them would not be 
appropriate. Finally, the population size of one marine mammal stock-- 
the Central North Pacific stock of humpback whales--is increasing; 
therefore establishing a team for this stock is a low priority. 

For the five take reduction teams subject to the MMPA's deadlines, NMFS 
has had limited success in meeting them for various reasons. 
Specifically, 

* NMFS missed statutory deadlines for establishing three of the five 
teams--the Atlantic Large Whale, Pelagic Longline, and Bottlenose 
Dolphin--by 3 months to more than 5 years. According to NMFS officials, 
the reason for delays in establishing one of these three teams was a 
lack of information, such as information on stocks' population size and 
mortality, that team members need to consider before developing draft 
take reduction plans. 

* Two of the five teams did not submit their draft take reduction plans 
to NMFS within the statutory deadlines. In one case the team missed the 
deadline because it had difficulty reaching consensus on a plan, and in 
the other case there was an unexpected death of a key team member 1 
week before the plan was due. 

* NMFS did not publish proposed take reduction plans in accordance with 
the statutory deadlines for the five teams. According to agency 
officials, these deadlines were missed because of the time needed to 
complete the federal rulemaking process, among other things. However, 
NMFS complied with the statutory deadline for the public comment 
periods for the five teams that have reached this stage of the process. 

* NMFS missed the statutory deadline for publishing final take 
reduction plans and implementing regulations for four of the five 
teams--the Atlantic Large Whale, Pacific Offshore Cetacean, Bottlenose 
Dolphin, and the Pelagic Longline--by 8 days to over a year. NMFS 
attributed the delays to the time necessary to respond to the public 
comments it received on the proposed plan before it could publish the 
final plan, among other things. 

NMFS does not have a comprehensive strategy for assessing the 
effectiveness of take reduction plans and implementing regulations once 
they have been implemented. The Government Performance and Results Act 
of 1993 provides a foundation for examining agency performance goals 
and results. Our work related to the act and the experience of leading 
organizations have shown the importance of developing a strategy for 
assessing performance that includes, among other things, program 
performance goals that identify the desired results of program 
activities and reliable information that can be used to assess results. 
In the context of NMFS's efforts to measure the success of the 
regulations that result from take reduction plans, we believe such a 
strategy would include, at a minimum, (1) performance goals that 
identify the desired outcomes of the take reduction regulations; (2) 
steps for assessing the effectiveness of potential take reduction 
regulations, such as fishing gear modifications, in achieving the 
goals; (3) a process for monitoring the fishing industry's compliance 
with the requirements of the take reduction regulations; and (4) 
reliable data assessing the regulations' effect on achieving the goals. 
Instead of such a comprehensive strategy, we found that although NMFS 
uses short-and long-term goals established by the MMPA to evaluate the 
success of take reduction regulations, these goals and the data that 
NMFS uses to measure the impact of the take reduction regulations have 
a number of limitations. For example, according to officials we spoke 
with, it is difficult to assess the impact of the regulations in a 6- 
month period, as required by the MMPA's short-term goal. In addition, 
while NMFS has taken steps to identify the impact of proposed take 
reduction regulations prior to their implementation, the agency has 
limited information about the fishing industry's compliance with the 
regulations once they have been implemented. As a result, when 
incidental takes occur in fisheries covered by take reduction 
regulations, it is difficult for NMFS to determine whether the 
regulations were not effective in meeting the MMPA's goals or whether 
the fisheries were not complying with the regulations. 

To facilitate the oversight of NMFS's progress and capacity to meet the 
statutory requirements under the MMPA for take reduction teams, 
Congress may wish to consider (1) directing NMFS to report on the key 
factors that affect its ability to meet the MMPA's requirements for 
establishing teams and meeting statutory deadlines, including data, 
resources, or other limitations; (2) amending the statutory 
requirements in the MMPA for establishing a take reduction team to 
stipulate that not only must a marine mammal stock be strategic and 
interacting with a Category I or II fishery but that the fishery with 
which the marine mammal stock interacts causes at least occasional 
incidental mortality or serious injury of that particular marine mammal 
stock; and, (3) amending the MMPA to ensure that the statutory 
deadlines give NMFS adequate time to complete take reduction plans and 
implementing regulations. We are also recommending that NMFS develop a 
comprehensive strategy for assessing the effectiveness of each take 
reduction plan and implementing regulations. In its comments on a draft 
of this report NOAA agreed with our recommendation to develop such a 
comprehensive strategy. 

Background: 

The MMPA was enacted in 1972 to ensure that marine mammals are 
maintained at or restored to healthy population levels. Among other 
things, this act established the Marine Mammal Commission, which must 
continually review the condition of marine mammal stocks and recommend 
to the appropriate federal officials and Congress any steps it deems 
necessary or desirable for the protection and conservation of marine 
mammals.[Footnote 8] In 1994, the MMPA was amended to create a process 
for establishing take reduction teams to manage incidental takes--
serious injury or death--in the course of commercial fishing 
operations. Commercial fishing in areas where marine mammals swim, 
feed, or breed is considered one of the main human causes of incidental 
take. Marine mammals can become entangled in fishing equipment such as 
nets or hooks, although specific threats vary by the fishing techniques 
used. Appendix II provides details on commercial fishing techniques 
that can result in incidental take, including gillnetting, longlining, 
trap/pot fishing, and trawling, as well as examples of the marine 
mammals affected. 

Under the 1994 amendments to the MMPA, NMFS must establish take 
reduction teams when two requirements are satisfied: (1) NMFS 
designates the stock as strategic in a final stock assessment report, 
and (2) the stock interacts with a commercial fishery listed as 
Category I or II in the current list of fisheries.[Footnote 9] 
According to the MMPA, if there is insufficient funding to develop and 
implement take reduction plans for all stocks that meet the 
requirements, NMFS should establish teams based on specified 
priorities.[Footnote 10] For the majority of stocks, NMFS determines 
strategic status by comparing whether human-caused mortality exceeds 
the maximum removal level (see figure 1).[Footnote 11] Human-caused 
mortality and serious injury (hereafter known as human-caused 
mortality) is estimated by adding fishery-related mortality estimates 
to mortality caused by other human sources, as follows: 

* Fishery-related mortality and serious injury estimates (hereafter 
known as fishery-related mortality estimates) are generated based on 
data from NMFS's fishery observer programs, whereby individuals board 
commercial fishing vessels and document instances of incidental take. 
NMFS also uses anecdotal information from scientists, fishermen, and 
others about additional incidental take to make these estimates. 

* Mortality and serious injury caused by other human sources such as 
collisions with large ships or authorized subsistence hunting of marine 
mammals by Alaska natives. 

The maximum removal level--technically known as the potential 
biological removal level--is calculated for each marine mammal stock by 
multiplying three factors: 

* The minimum population estimate (hereafter known as the population 
size estimate) for the specific stock of marine mammals.[Footnote 12] 

* Two adjustments designed to (1) factor in the expected rate of 
natural growth for a stock and (2) reduce the risks associated with 
data uncertainties, especially for stocks listed as endangered or 
threatened or designated as depleted. By altering the values of these 
adjustments, NMFS can make the maximum removal level more conservative-
-meaning that fewer incidental takes will be allowed--in cases of 
uncertain data, and therefore make it less likely that they will 
identify a stock as nonstrategic. 

Figure 1: Determining Strategic Status by Comparing Human-Caused 
Mortality to the Maximum Removal Level: 

[Refer to PDF for image] 

This figure is an illustration of information as follows: 

If human-caused mortality is greater than maximum removal level = 
strategic stock. 

Human-caused mortality key factors: 
* Fishery-related mortality; 
* Other human-caused mortality. 

Maximum removal level kep factors: 
* Population size estimate; 
* Adjustments to the maximum removal level. 

Source: GAO analysis of NMF’s guidelines for assessing marine mammal 
stocks. 

[End of figure] 

The MMPA requires NMFS to assess the status of each stock under its 
jurisdiction and determine whether it is strategic or not. NMFS 
publishes annual stock assessment reports that include, among other 
things, the strategic status of each marine mammal stock and the 
information used to make these strategic status determinations. 
Information contained in the reports must be based on the best 
scientific information available. NMFS's Fishery Science Centers are 
responsible for publishing the stock assessment reports, and the Office 
of Protected Resources, along with NMFS regional offices, is 
responsible for using the data from the reports to decide whether to 
establish a take reduction team. Regional Scientific Review Groups-- 
composed of individuals with expertise in marine mammal biology, 
commercial fishing technology and practices, and other areas--review 
all stock assessment reports prior to publication.[Footnote 13] NMFS 
also uses fishery-related mortality estimates and maximum removal 
levels in the stock assessment reports to categorize fisheries in its 
annual list of fisheries.[Footnote 14] Under the amended MMPA, 
commercial fisheries are classified as Category I if they have frequent 
incidental take of marine mammals and as Category II if they have 
occasional take.[Footnote 15] 

Once a stock is identified as requiring a take reduction team--because 
it is strategic and interacts with a Category I or II fishery--the MMPA 
requires NMFS to establish a team and appoint take reduction team 
members. The MMPA requires the take reduction team members to develop 
and submit a draft take reduction plan designed to reduce the 
incidental take of marine mammals by commercial fishing operations. If 
NMFS lacks sufficient funding to develop and implement a take reduction 
plan for all stocks that satisfy the MMPA's requirements, the MMPA 
directs NMFS to give highest priority to take reduction plans for those 
stocks (1) for which incidental mortality and serious injury exceed the 
maximum removal level, (2) with a small population size, and (3) that 
are declining most rapidly. The MMPA requires that draft take reduction 
plans be developed by consensus among take reduction team members. If 
take reduction team members cannot reach consensus, the members must 
submit the range of possibilities they considered and the views of both 
the majority and minority to NMFS. These draft plans may include 
regulatory measures (known as take reduction regulations) such as gear 
modifications or geographical area closures that fisheries would be 
required to follow and voluntary measures such as research plans for 
identifying the primary causes and solutions for incidental take or 
education and outreach for commercial fishermen. 

After the take reduction team members develop and submit a draft take 
reduction plan to NMFS, the agency must publish a proposed plan in the 
Federal Register. The MMPA requires NMFS to take the team's draft plan 
into consideration when it develops a proposed plan but does not 
require adoption of the draft plan.[Footnote 16] If the team fails to 
meet its deadline for submitting a draft plan to NMFS, the MMPA 
requires NMFS to develop and propose a plan on its own. For strategic 
stocks, the proposed plan must include measures NMFS expects will 
reduce incidental take below the maximum removal level within 6 months 
of the plan's implementation. Once the proposed plan is published in 
the Federal Register, NMFS must solicit public comments on the plan 
before the agency finalizes and implements it by publishing a final 
plan in the Federal Register. NMFS's development and publication of 
proposed and final plans are subject to several laws, including the 
following: 

* Endangered Species Act: The act requires consultation among federal 
agencies including NMFS and the U.S. Fish and Wildlife Service to 
ensure that any take reduction plan is not likely to jeopardize the 
continued existence of any endangered or threatened species. 

* National Environmental Policy Act: The act requires NMFS to evaluate 
the likely environmental effects of any take reduction plan using an 
environmental assessment or, if the plans will likely have significant 
environmental effects, a more detailed environmental impact statement. 

* Regulatory Flexibility Act: The act requires NMFS to assess the 
economic impact of any take reduction plan on small entities.[Footnote 
17] 

The proposed and final take reduction plans are also subject to the 
requirements of the Coastal Zone Management Act, Information Quality 
Act, Magnuson-Stevens Act, and the Paperwork Reduction Act, among 
others. In addition to these laws, the proposed and final take 
reduction plans are subject to the requirements of four executive 
orders.[Footnote 18] For example, one executive order requires NMFS to 
submit the proposed and final take reduction plans to the Office of 
Management and Budget (OMB) for review if NMFS or OMB determines that 
the plan is a significant regulatory action. 

The 1994 amendments to the MMPA provide deadlines to establish take 
reduction teams and develop and publish proposed and final plans. Table 
1 outlines these statutory requirements and deadlines. 

Table 1: MMPA's Take Reduction Team Requirements and Deadlines: 

Requirement: NMFS establishes take reduction team; 
Deadline: 30 days after a final stock assessment report indicates that 
a stock is strategic and the current list of fisheries lists the stock 
as interacting with a Category I or II fishery. 

Requirement: Take reduction team members develop a draft plan and 
submit the draft plan to NMFS; 
Deadline: 6 months after take reduction team is established[A]. 

Requirement: NMFS translates draft plan into a proposed take reduction 
plan and implementing regulations and publishes them in the Federal 
Register; 
Deadline: 60 days after draft plan is submitted[B]. 

Requirement: NMFS holds a public comment period on the proposed take 
reduction plan and implementing regulations; 
Deadline: Up to 90 days after proposed plan's publication. 

Requirement: NMFS publishes a final take reduction plan and 
implementing regulations in the Federal Register; 
Deadline: 60 days after closure of the public comment period on the 
proposed plan. 

Source: GAO analysis of the 1994 amendments to the MMPA. 

[A] If the team's stocks have human-caused mortality and serious injury 
below the maximum removal level and interact with a Category I or II 
fishery, this deadline is 11 months instead of 6 months. 

[B] If the team does not meet its submission deadline for the draft 
plan, NMFS must publish a proposed plan 8 months after the team's 
establishment for strategic stocks whose human-caused mortality and 
serious injury are above the maximum removal level. For strategic 
stocks whose human-caused mortality and serious injury are below the 
maximum removal level, the deadline is 13 months after the team's 
establishment. 

[End of table] 

NMFS Faces Significant Challenges in Accurately Identifying Marine 
Mammal Stocks That Meet the Statutory Requirements for Establishing 
Take Reduction Teams because of Data Limitations: 

Significant limitations in available information make it difficult for 
NMFS to accurately determine which marine mammal stocks meet the 
statutory requirements for establishing take reduction teams. The MMPA 
states that stocks are strategic--one of two triggers for establishing 
a take reduction team--if their human-caused mortality exceeds maximum 
removal levels. However, the information NMFS uses to calculate human- 
caused mortality or the maximum removal level for most stocks is 
incomplete, outdated, or imprecise, a fact that may lead NMFS to 
overlook some marine mammal stocks that meet the statutory requirements 
for establishing take reduction teams and inappropriately identify 
others as meeting them. NMFS officials said that funding constraints 
limit their ability to gather sufficient data, although the agency has 
taken steps to identify its data needs. 

Incomplete Information Reduces the Reliability of NMFS's Strategic 
Status Determinations: 

Our review of stock assessment reports from 2007 found that NMFS was 
missing key information to make well-informed strategic status 
determinations for a significant number of marine mammal stocks. 
According to the MMPA, a stock is designated strategic--one of two 
triggers for establishing a take reduction team--if the human-caused 
mortality estimate exceeds the maximum removal level.[Footnote 19] Our 
review of stock assessment reports from 2007 found that 39 of 113 
stocks are either missing human-caused mortality estimates or maximum 
removal levels, making it impossible to determine strategic status in 
accordance with the MMPA requirements.[Footnote 20] As a result, for 
these 39 stocks, NMFS is determining strategic status without key 
information and therefore might not accurately determine whether a 
stock requires a take reduction team. According to NMFS officials, 
maximum removal level and human-caused mortality estimates are often 
missing because scientists have been unable to gather the necessary 
data to make these determinations. 

In the absence of human-caused mortality estimates or maximum removal 
levels, NMFS must make more subjective--and potentially inaccurate-- 
strategic status determinations for some marine mammal stocks. In these 
cases, NMFS guidance directs scientists to use professional judgment to 
determine whether a stock is strategic. According to NMFS officials, 
scientists may use a variety of sources to make these decisions, 
including scientists' field observations of the marine mammals. 
However, Marine Mammal Commission officials we spoke with stated that 
decisions based on professional judgment are less certain than those 
based on data about human-caused mortality and maximum removal levels 
and could result in some marine mammal stocks that should be identified 
as strategic not being identified as such. 

Even in cases where the stock assessment reports include human-caused 
mortality estimates and maximum removal levels for a stock, the human- 
caused mortality estimates may be inaccurate because the information on 
which they are based is incomplete. Human-caused mortality estimates 
are based in part on fishery-related mortality. However, according to 
Marine Mammal Commission officials, in some cases, mortality may be 
occurring in fisheries where NMFS does not systematically collect 
mortality information. Specifically, NMFS's observer programs--a key 
source of data NMFS uses to calculate fishery-related mortality 
estimates---gather information for only half of the total fisheries, 
but incidental take may also be occurring in some fisheries that are 
not observed, especially those that are classified as Category I or II. 
Observer program officials told us that funding limitations prohibit 
coverage of all Category I or II fisheries. 

In addition, our review of 2007 stock assessment reports found 
instances where fishery-related mortality estimates were missing 
important information. For example, NMFS scientists identified spinner 
and bottlenose dolphins in Hawaii as nonstrategic, but raised concerns 
about these decisions because the estimates of fishery-related 
mortality for the stocks were likely to be incomplete. Specifically, 
they stated that while the agency has observer program data showing 
that incidental take from a longline fishery was below the maximum 
removal level, it did not have observer programs in gillnet fisheries 
that were also likely to incidentally take the stocks, and therefore 
might have increased the fishery-related mortality estimate if these 
fisheries had been observed. 

Furthermore, NMFS, Marine Mammal Commission, and Scientific Review 
Group scientists expressed concern that strategic status decisions for 
some stocks may not be accurate because NMFS does not have all of the 
information needed to define the stocks accurately. Under the MMPA, 
marine mammal species are treated as stocks--populations located in a 
common area that interbreed when mature. However, a 2004 NMFS report 
found that the stock definitions for 61 percent of marine mammal stocks 
were potentially not accurate.[Footnote 21] For example, a stock 
definition would not be accurate if NMFS defined two distinct 
populations of a marine mammal species incorrectly as one stock. If one 
of these two populations has a high level of incidental take and the 
other does not, the combined human-caused mortality estimate might not 
be high enough to result in a strategic status determination. However, 
if the two distinct populations were defined as two stocks, the high 
incidental take of one stock could result in it being considered 
strategic and triggering one of the requirements for take reduction 
team establishment. The Alaska Scientific Review Group has raised 
concerns that inaccurate stock definitions may be leading to incorrect 
strategic status designations. Specifically, in a 2007 letter to NMFS, 
the review group said that recent scientific information indicates that 
the current stock definitions might inappropriately consolidate harbor 
seal populations in Alaska. The review group chair said that this 
consolidation may lead to some harbor seal populations being 
incorrectly categorized as nonstrategic. 

Outdated Information Reduces the Reliability of NMFS's Strategic Status 
Determinations: 

Our review of a sample of stock assessment reports found that 
approximately 11 of the 74 stocks used outdated information-- 
information that is 8 years old or older--to calculate the maximum 
removal level, thereby reducing the reliability of the strategic status 
determinations for these stocks.[Footnote 22] According to NMFS 
guidelines, information that is 8 years old or older is generally 
unreliable for estimating the current stock population. NMFS scientists 
estimate the size of a stock's population to determine its maximum 
removal level. If human-caused mortality exceeds maximum removal 
levels, the stock is considered strategic. However, when the data are 8 
years old or older, scientific research has shown that marine mammal 
stocks could have declined significantly since the data were 
collected.[Footnote 23] This could lead NMFS to inaccurately designate 
a stock as nonstrategic and therefore not establish a take reduction 
team when one might be needed. In addition, if a stock's population has 
increased significantly during the time period since the last estimate 
was made, NMFS may inaccurately designate the stock as strategic. 
Furthermore, our review found that for approximately 21 of the 74 
stocks, the population size information was between 5 and 8 years old, 
a situation that is less of a concern than data that are 8 years old or 
older, but could also lead NMFS to make an inaccurate strategic stock 
determination. NMFS and Marine Mammal Commission scientists stated that 
scientists' confidence in the accuracy of the information used to 
estimate population size begins to decrease even before 8 years. Also, 
a 2004 NMFS report to Congress stated that estimates for population 
size based on information 5 years old or older may not accurately 
represent a marine mammal stock's current population size.[Footnote 24] 

Imprecise Information Reduces the Reliability of NMFS's Strategic 
Status Determinations: 

Our review of a sample of stock assessment reports from 2007 frequently 
found that NMFS used population size or fishery-related mortality 
estimates that were less precise than NMFS's guidelines recommend, 
decreasing the likelihood that strategic status determinations based on 
this information are accurate. Furthermore, we also found that NMFS 
could often not identify the level of precision for fishery-related 
mortality estimates. Specifically, we found that: 

* Approximately 48 of 74 stocks had population size estimates--used to 
determine maximum removal levels--that were less precise than NMFS 
guidelines recommend.[Footnote 25] According to NMFS officials, one 
reason for the lack of precision is that the agency did not have 
adequate funding to conduct thorough population surveys. When 
conducting a marine mammal population survey, scientists document how 
frequently they observe marine mammals during a set period of time and 
use this information to estimate total population size. The duration of 
the survey and the number of scientists observing different areas 
within the stock's natural habitat affect the extent to which the 
survey is thorough and the population estimate is precise. 

* Scientists could not calculate the precision of fishery-related 
mortality estimates--used to determine human-caused mortality 
estimates--for approximately 48 of the 74 stocks. In addition, the 
estimates for approximately 24 of the remaining 26 stocks were less 
precise than NMFS guidance recommends. Specifically, precision cannot 
be calculated when the sources of mortality data are anecdotal or the 
fishery-related mortality estimate is zero.[Footnote 26] For these 
cases, NMFS does not have a systematic way of determining how precise 
the estimates are and therefore how much certainty it should have in 
their accuracy. NMFS and Marine Mammal Commission officials identified 
inadequate observer coverage as one of the main reasons for imprecise 
mortality estimates. According to National Observer Program officials, 
52 percent of Category I or II fisheries have observer coverage; 
however, only 27 percent of Category I or II fisheries have adequate or 
near-adequate coverage levels.[Footnote 27] Without adequate observer 
coverage in fisheries likely to cause incidental take of marine 
mammals, estimates will be less precise because they will be based on 
fewer data. NMFS and Marine Mammal Commission officials also stated 
that current funding levels for the observer program are inadequate to 
gather enough data on fishery-related mortality. 

For the stocks for which we found that NMFS could calculate the level 
of precision for population size or fishery-related mortality estimates 
but these estimates were less precise than NMFS's guidance recommends, 
NMFS policy guidelines directed scientists to make adjustments to these 
estimates that increased the likelihood that the stocks were 
categorized as strategic. By doing this, the imprecision in these 
estimates is less likely to lead NMFS to overlook a stock that should 
be covered by a take reduction team, but NMFS officials told us that it 
is possible these stocks would not be designated as strategic if more 
precise estimates had been available and therefore these adjustments 
had not been necessary. However, in the approximately 48 of 74 stocks 
where NMFS cannot calculate the precision of a fishery-related 
mortality estimate--even though high levels of imprecision may exist-- 
it cannot make these adjustments and therefore may either overlook some 
stocks that should be designated as strategic or inaccurately designate 
others as nonstrategic. Figure 2 summarizes key data limitations 
identified earlier in this report. 

Figure 2: Information Limitations Make It Difficult to Accurately 
Determine Strategic Status: 

[Refer to PDF for image] 

This figure illustrates the following information: 

A total of 113 stocks require human-caused mortality estimates and 
maximum removal levels to determine strategic status [total stocks 
reviewed]; 

* Thirty-nine stocks are missing human-caused mortality estimates or 
maximum removal levels [type of data limitation]; 
- Strategic status cannot be determined as directed in the MMPA [impact 
of data limitations]. 

* Seventy-four stocks have at least one of the following data 
limitations for determining strategic status [type of data limitation]; 

- Data limitations make it difficult to accurately determine strategic 
status as directed in the MMPA [impact of data limitations]; 

- Approximately 11 stocks rely on population size information that is 
older than what NMFS considers reliable to determine the maximum 
removal levels [subset of 74 stocks]; 

- Approximately 48 stocks rely on population size information that is 
less precise than NMFS recommends to determine the maximum removal 
levels [subset of 74 stocks]; 

- For approximately 48 stocks, NMFS cannot calculate the precision of 
the fishery-related mortality information [subset of 74 stocks]; 

- Approximately 24 stocks rely on fishery-related mortality information 
that is less precise than NMFS recommends to determine human-caused 
mortality [subset of 74 stocks]. 

Source: GAO analysis of NMFS data. 

[End of figure] 

Funding Constraints Limit NMFS's Ability to Gather Sufficient Data, but 
the Agency Has Taken Some Steps to Identify Data Needs: 

NMFS officials acknowledged limitations in the information available to 
determine strategic status and the potential consequences, but 
identified funding constraints as an impediment to addressing these 
limitations. Specifically, a NMFS official stated that the agency has 
insufficient data to make informed management decisions regarding 
marine mammals in most instances, and said that a stock with sufficient 
data is an exception. However, while NMFS officials acknowledged these 
significant data limitations and their potential consequences, they 
also stated that they use the best scientific information available to 
make these determinations, as required by the MMPA. In addition, NMFS 
and Marine Mammal Commission officials stated that funding constraints 
have limited the agency's ability to gather the data that it needs to 
make accurate decisions about which stocks meet the statutory 
requirements for establishing take reduction teams. 

NMFS has taken some steps to identify data limitations and proposed 
some actions to alleviate them. For example, a 2004 NMFS study found 
that the agency must significantly enhance the quantity and quality of 
its stock assessment data and analyses to meet MMPA mandates and 
outlined the actions and resource increases necessary to achieve these 
enhancements.[Footnote 28] According to NMFS officials, the agency 
received funding to begin implementing the study's recommendations in 
fiscal year 2008 but the program lost other funding sources, so the new 
funding did not result in an overall increase in resources to improve 
these data. In addition, NMFS is currently completing a study to assess 
its sources of fishery-related mortality information. According to 
agency documents, this report will include an evaluation of the 
adequacy of the scientific techniques and existing observer coverage 
levels used to collect these data. 

Nonetheless, marine mammal scientists expressed interest in having more 
information about the quality of the data used to determine the 
strategic status for each stock. Specifically, Marine Mammal Commission 
officials supported implementing a process to identify stocks where the 
scientists have low confidence in the quality of the data. According to 
these officials, if this occurred, interested parties would gain a 
better understanding of the data underlying strategic status 
determinations and therefore would have more information to judge the 
usefulness of the conclusions made from those data. Also, marine mammal 
scientists said that a process to identify stocks with poor data could 
make it easier to highlight stocks in need of additional data 
collection efforts. 

NMFS Has Not Established Teams for Many Marine Mammals That Have Met 
the Statutory Requirements of the MMPA for a Variety of Reasons: 

On the basis of NMFS's available information, we identified 30 marine 
mammal stocks that met the MMPA's requirements for establishing a team, 
and NMFS has established six teams that cover 16 of them. NMFS has not 
established teams for the 14 other marine mammals that have met the 
MMPA's requirements for establishing a team for several reasons: (1) 
the agency lacked sufficient funds to establish a team, (2) information 
about the stock's population size or mortality is outdated or 
incomplete and the agency lacks funds to obtain better information, (3) 
commercial fisheries account for little or no incidental take, or (4) 
the population size is increasing; therefore establishing a team for 
the stock is a lower priority. 

NMFS Has Established Teams for 16 Marine Mammals That Have Met the 
Requirements of the MMPA: 

Since 1994, NMFS has established eight take reduction teams, six of 
which are still in existence--the Atlantic Large Whale, Atlantic Trawl 
Gear, Bottlenose Dolphin, Harbor Porpoise, Pacific Offshore Cetacean, 
and Pelagic Longline.[Footnote 29] These six teams cover 16 marine 
mammal stocks that have met the MMPA's requirements for establishing a 
take reduction team. The MMPA gives NMFS discretion to determine how 
teams can be structured. For example, NMFS can establish a take 
reduction team for (1) one stock that interacts with multiple 
fisheries, such as the Bottlenose Dolphin take reduction team; (2) 
multiple stocks within a region, such as the Atlantic Large Whale take 
reduction team; or (3) multiple stocks that interact with one fishery, 
such as the Pacific Offshore Cetacean take reduction team. The existing 
take reduction teams--five of which are located in the Atlantic region 
and one in the Pacific--are described in table 2. 

Table 2: Marine Mammals That Have Met the MMPA's Requirements for 
Establishing a Take Reduction Team and for Which NMFS Has Established a 
Team: 

Take reduction team name: Atlantic Large Whale; 
Marine mammals: Fin whale; Humpback whale; North Atlantic right whale; 
Types of fisheries affected: 
Multiple trap/pot fisheries; Multiple gillnet fisheries. 

Take reduction team name: Atlantic Trawl Gear; 
Marine mammals: Short-finned pilot whale; Long-finned pilot whale; 
Types of fisheries affected: Multiple trawl fisheries. 

Take reduction team name: Bottlenose Dolphin; 
Marine mammals: Bottlenose dolphin; 
Types of fisheries affected: Multiple gillnet fisheries; One trap/pot 
fishery; Two seine fisheries; Two stop/pound net fisheries. 

Take reduction team name: Harbor Porpoise[A]; 
Marine mammals: Harbor porpoise; 
Types of fisheries affected: Multiple gillnet fisheries. 

Take reduction team name: Pacific Offshore Cetacean; 
Marine mammals: Mesoplodont beaked whale; Baird's beaked whale; 
Cuvier's beaked whale; Sperm whale; Pygmy sperm whale; Humpback whale; 
Short-finned pilot whale; Fin whale; Long-beaked common dolphin; 
Types of fisheries affected: One gillnet fishery. 

Take reduction team name: Pelagic Longline; 
Marine mammals: Short-finned pilot whale[B]; Long-finned pilot 
whale[B]; 
Types of fisheries affected: The Atlantic portion of one longline 
fishery. 

Source: GAO analysis of Federal Register and NMFS documents. 

[A] NMFS has established two take reductions teams for harbor 
porpoises. According to the Federal Register, the first team was 
established on February 12, 1996, to address harbor porpoises in the 
Gulf of Maine (known as the Gulf of Maine Harbor Porpoise take 
reduction team). The second team, established on February 25, 1997, 
focused on the same stock of harbor porpoises in the mid-Atlantic 
(known as the Mid-Atlantic take reduction team). NMFS decided to 
combine the two teams into one team in December 2007. For the purposes 
of this report, we refer to the combined teams as the Harbor Porpoise 
team. 

[B] These marine mammal stocks are covered by both the Atlantic Trawl 
Gear and Pelagic Longline take reduction teams. Since we are reporting 
on the number of marine mammals that met the MMPA's requirements for 
establishing a team, we accordingly did not double-count this marine 
mammal. 

[End of table] 

NMFS Has Not Established Teams for 14 Other Marine Mammals That Have 
Also Met the Requirements of the MMPA: 

NMFS has not established take reduction teams for 14 other marine 
mammals that have also met the MMPA's requirements for the 
establishment of a take reduction team. Table 3 lists these 14 marine 
mammals. 

Table 3: Marine Mammals Stocks That Have Met the MMPA's Requirements 
for Establishing a Take Reduction Team, but NMFS Has Not Established a 
Team: 

Marine mammal: Bottlenose dolphin; 
Stock: Gulf of Mexico bay, sound, and estuarine. 

Marine mammal: Bottlenose dolphin; 
Stock: Northern Gulf of Mexico coastal. 

Marine mammal: Cuvier's beaked whale; 
Stock: Western North Atlantic. 

Marine mammal: False killer whale; 
Stock: Hawaii. 

Marine mammal: Harbor porpoise; 
Stock: Bering Sea. 

Marine mammal: Harbor porpoise; 
Stock: Gulf of Alaska. 

Marine mammal: Harbor porpoise; 
Stock: South East Alaska. 

Marine mammal: Humpback whale; 
Stock: Central North Pacific. 

Marine mammal: Humpback whale; 
Stock: Western North Pacific. 

Marine mammal: Mesoplodont beaked whale; 
Stock: Western North Atlantic. 

Marine mammal: Sperm whale; 
Stock: Hawaii. 

Marine mammal: Northern fur seal; 
Stock: East North Pacific. 

Marine mammal: Steller sea lion; 
Stock: Eastern United States. 

Marine mammal: Steller sea lion; 
Stock: Western United States. 

Source: GAO analysis of Federal Register and NMFS data. 

[End of table] 

NMFS has not established teams for these 14 marine mammal stocks for 
the following reasons: 

Lack of funding. Specifically, NMFS officials told us they did not 
establish a take reduction team for one marine mammal--the false killer 
whale--due to lack of funding. False killer whales found in the waters 
off the Hawaiian Islands have met the MMPA's requirements for 
establishing a team since 2004 because the stock has been strategic and 
interacts with a Category I longline fishery. Furthermore, since 2004, 
estimates of fishery-related mortality of false killer whales are at 
levels greater than their maximum removal level, according to stock 
assessment reports. According to the most recently available 
information, the false killer whale is the only marine mammal for which 
incidental take by commercial fisheries is known to be above its 
maximum removal level that is not covered by a take reduction team. 
[Footnote 30] Since 2003, the Pacific Scientific Review Group has 
recommended that NMFS establish a team for these whales. Although NMFS 
officials told us that in accordance with the MMPA, the false killer 
whales are their highest priority for establishing a team, they said 
the agency does not have the funds to do so. NMFS officials told us the 
agency instead decided to focus what they characterized as their very 
limited funding on the already established take reduction teams. 
However, in the absence of a take reduction team, the Hawaii longline 
fishery continues to operate without a take reduction plan designed to 
reduce incidental take of false killer whales. 

Outdated or incomplete data. NMFS has not established take reduction 
teams for eight marine mammals that interact with commercial fisheries 
in the Gulf of Mexico and the waters off of Alaska's coast because the 
information the agency has on them is too outdated or incomplete for 
agency officials to determine whether these marine mammals should be 
considered a high priority for establishing a take reduction team. 
Also, take reduction team members need better information about 
mortality before they can propose changes to fishing practices in a 
draft take reduction plan. However, because take reduction teams have 
not been established for these eight marine mammal stocks, fisheries 
continue to operate without take reduction plans that could decrease 
incidental take of these stocks. 

Specifically, NMFS has not established teams for two stocks of 
bottlenose dolphins found in the Gulf of Mexico and six stocks in the 
waters off Alaska's coast, including three stocks of harbor porpoises, 
two stocks of Steller sea lions, and one stock of humpback whales. 
[Footnote 31] Two stocks of bottlenose dolphins found in the Gulf of 
Mexico have met the MMPA's requirements for establishing a team since 
2005 because they have been strategic and interact with two Category II 
fisheries.[Footnote 32] According to stock assessment reports, the best 
scientific information available about population size for these two 
stocks is 8 years old or older. According to NMFS documents, using such 
outdated information increases the possibility that significant 
population changes of which NMFS is unaware could have occurred. Agency 
officials told us that the 2008 survey to collect new population size 
estimates was canceled due to insufficient funding. Furthermore, 
according to stock assessment reports, the available mortality 
estimates are incomplete because they are based on anecdotal 
information. Consequently, scientists can use this information only to 
make a minimum estimate of the number of marine mammals being killed or 
injured. Agency officials told us they would like to begin observing 
the two Gulf of Mexico fisheries, but are currently unable to do so due 
to funding constraints. 

Similarly, NMFS has not established take reduction teams due to 
outdated information for three stocks of harbor porpoises found in the 
waters off Alaska's coast that have met the MMPA's statutory 
requirements for establishing a team since 2006 because they have been 
strategic and interact with multiple Category II fisheries. According 
to stock assessment reports, the best scientific information available 
about population size for harbor porpoises is outdated because the 
estimates are 8 years old or older. NMFS officials told us harbor 
porpoises are a major conservation concern for the agency, but they 
said funding constraints have limited their ability to collect new 
population size estimates for these marine mammals. 

In addition, NMFS has not established take reduction teams due to 
incomplete information for two stocks of Steller sea lions that have 
met the MMPA's requirements for establishing a team since 1996 because 
they have been strategic and interact with multiple Category II 
fisheries. NMFS officials told us the fishery-related mortality 
information for these stocks is incomplete because they are uncertain 
whether incidental take is occurring in commercial fisheries not 
covered by observer programs. According to these same officials, lack 
of funding has limited the agency from obtaining more complete fishery- 
related mortality information for Steller sea lions. 

Last, NMFS has not established a take reduction team due to outdated 
information for the Western North Pacific stock of humpback whales, 
which has met the MMPA's requirements for establishing a team since 
2006, because it has been strategic and interacts with two Category II 
fisheries. According to the stock assessment report, the best 
scientific information available about population size for these 
humpback whales is outdated because it is 8 years old or older, but 
agency officials told us funding constraints limit their ability to 
collect new information. 

Commercial fisheries account for little or no incidental take. NMFS has 
not established teams for four marine mammals--the Hawaii stock of 
sperm whales, Western North Atlantic stocks of Cuvier's beaked whales 
and Mesoplodont beaked whales, and East North Pacific stock of northern 
fur seals--that have met the MMPA requirements for establishing a team 
because, according to agency officials, commercial fisheries account 
for little or no incidental take of these stocks. According to our 
analysis, these sperm whales meet the statutory requirements for a team 
because they are listed as an endangered species under the ESA, and 
therefore are a strategic stock, and they interact with a Category I 
fishery. However, NMFS officials told us that the commercial fishery 
with which these sperm whales interact accounts for little or no 
incidental take, and therefore it would be inappropriate to establish a 
team for them.[Footnote 33] Similarly, NMFS's 2007 stock assessment 
reports state that acoustic activities, such as sonar used by the U.S. 
Navy, may contribute to the mortality and serious injury of Cuvier's 
and Mesoplodont beaked whales, and non-human-related causes of death 
that are unknown to scientists are contributing to the population 
decline of northern fur seals. NMFS officials told us it would be 
inappropriate to establish take reduction teams for these marine mammal 
stocks because mortality and serious injuries are not being caused by 
interaction with a commercial fishery. According to NMFS officials, 
they proposed amending the MMPA in 2005 to require that take reduction 
teams be established only for strategic stocks that interact with 
Category I or II fisheries and that have some level of fishery-related 
incidental take of those stocks, but Congress took no action on the 
proposal at that time. 

Population size is increasing. NMFS officials said they have not 
established a take reduction team for one marine mammal stock that 
meets the statutory requirements--the Central North Pacific stock of 
humpback whales--because of insufficient funding; however, this stock 
would be a low priority because the stock's population size is 
increasing. This stock is strategic because it is listed as an 
endangered species under the ESA and it interacts with a Category I 
fishery off the coast of Hawaii and multiple Category II commercial 
fisheries in the waters off Alaska's coast. However, because its 
population size is increasing, NMFS officials consider the stock to be 
a lower priority for establishing a team than stocks with declining 
populations. 

NMFS Has Had Limited Success in Meeting the Statutory Deadlines for 
Take Reduction Teams for a Variety of Reasons: 

For the five take reduction teams subject to the MMPA's deadlines, NMFS 
has had limited success in meeting the deadlines for a variety of 
reasons.[Footnote 34] NMFS did not meet the statutory deadlines to 
establish take reduction teams for three of the five teams, in one case 
due to a lack of information about population size or mortality. In 
addition, two of the five teams did not submit their draft take 
reduction plans to NMFS within the statutory deadlines, in one case 
because the team could not reach consensus on a plan. NMFS did not 
publish proposed take reduction plans within the statutory deadlines 
for any of the five teams because of the time needed to complete the 
federal rulemaking process, among other things. However, NMFS has 
complied with the statutory deadlines for the public comment periods on 
the proposed plans for all five teams. Finally, NMFS did not publish 
final take reduction plans within the statutory deadlines for four of 
the five teams because of the time associated with analyzing public 
comments, among other things. 

NMFS Did Not Establish Three of the Five Teams within the Statutory 
Deadlines: 

According to the MMPA, NMFS has 30 days to establish a take reduction 
team after a stock is listed as strategic in a final stock assessment 
report and is listed as interacting with a Category I or II fishery in 
the current list of fisheries. NMFS established two teams within this 
statutory deadline: the Harbor Porpoise and Pacific Offshore Cetacean. 
However, NMFS did not meet the statutory deadlines for establishing 
three teams--the Atlantic Large Whale, Pelagic Longline, and Bottlenose 
Dolphin. These teams were established from 3 months to more than 5 
years after their statutory deadlines (see table 4). 

Table 4: Delays in Establishing Take Reduction Teams: 

Take reduction team: Atlantic Large Whale; 
Date of statutory deadline for team establishment: May 1, 1996[A]; 
Date take reduction team was established: August 6, 1996; 
Delay: 97 days (3 months). 

Take reduction team: Pelagic Longline; 
Date of statutory deadline for team establishment: January 2002[B]; 
Date take reduction team was established: June 22, 2005[C]; 
Delay: 1,268 days (over 3 years). 

Take reduction team: Bottlenose Dolphin; 
Date of statutory deadline for team establishment: May 1, 1996[A]; 
Date take reduction team was established: October 24, 2001[D]; 
Delay: 2,001 days (over 5 years). 

Source: GAO analysis of information published in Federal Register 
notices. 

[A] The stocks covered by this team were designated as strategic in the 
July 1995 stock assessment reports. The effective date of the list of 
fisheries that identified these stocks as interacting with Category I 
or II fisheries was April 1, 1996. Accordingly, the deadline for team 
establishment is 30 days after the list of fisheries' effective date. 

[B] The stock assessment reports for the relevant marine mammal stocks 
covered by the Pelagic Longline were published in December 2001. 
However the reports did not include a specific date in December. The 
stocks covered by this team were listed as strategic in the December 
2001 stock assessment reports. Also, the list of fisheries that was in 
effect at that time listed the stocks as interacting with Category I or 
II fisheries. Accordingly, the deadline for team establishment is 30 
days after publication of the stock assessment reports. We determined 
the number of days of delay based on the date January 1, 2002, because 
the December 2001 stock assessment reports did not indicate a specific 
date. 

[C] This team was established pursuant to an agreement settling a 
lawsuit. 

[D] The Bottlenose Dolphin team was originally established on August 
31, 2001; however, due to the events of September 11, 2001, the first 
meeting was canceled and NMFS subsequently reestablished the team on 
October 24, 2001. 

[End of table] 

According to NMFS officials, the reasons for delays in establishing 
these take reduction teams include the following: 

* Atlantic Large Whale: It took NMFS officials more than 30 days to 
identify sufficient take reduction team members to represent the 
stocks' large habitat, which stretches from Maine to Florida. 

* Pelagic Longline: After 2001, NMFS officials were waiting to see if 
modifications to the longline fishery, intended to reduce the 
incidental take of billfish and sea turtles, would also reduce 
incidental take of pilot whales, which would eliminate the need for 
this team.[Footnote 35] However, in 2002, an environmental group sued 
NMFS because of the agency's alleged failure to establish take 
reduction teams for marine mammals that met the statutory requirements. 
According to an agreement settling the lawsuit, NMFS had to conduct 
surveys and develop new population size estimates for pilot whales. In 
addition, it had to establish a take reduction team for the Atlantic 
portion of a large pelagic longline fishery by June 30, 2005. 

* Bottlenose Dolphin: NMFS lacked information about population size and 
mortality for bottlenose dolphins that take reduction team members need 
to consider before they can propose changes to fishing practices in a 
draft take reduction plan, and NMFS scientists recommended that the 
agency obtain better information before establishing a team.[Footnote 
36] According to a NMFS official, mortality information for bottlenose 
dolphins collected between 1995 and 1998 was published in the 2000 
stock assessment report. As a result of this new information, NMFS 
established a team in 2001. 

Two Teams Did Not Develop and Submit Draft Take Reduction Plans within 
the Statutory Deadlines: 

According to the MMPA, after NMFS establishes a take reduction team, 
the team must develop a draft take reduction plan and submit it to NMFS 
within 6 months if it covers strategic stocks whose level of human- 
caused mortality exceeds the maximum removal level. However, if the 
level of human-caused mortality for strategic stocks covered by the 
plan is below the maximum removal level, as it is for the Pelagic 
Longline team, then the team has 11 months to develop a draft plan and 
submit the draft plan to NMFS. Three of the five teams submitted their 
draft plans within the statutory deadlines.[Footnote 37] However, two 
teams--the Pelagic Longline and Bottlenose Dolphin--submitted their 
draft take reduction plans to NMFS, 17 and 23 days respectively, after 
their statutory deadlines (see table 5). Table 5 shows the delays in 
developing and submitting draft plans for the two take reduction teams 
that missed the statutory deadline. 

Table 5: Delays in Developing and Submitting Draft Take Reduction 
Plans: 

Take reduction team: Pelagic Longline; 
Date of statutory deadline for submission of draft plan: May 22, 2006; 
Date draft plan submitted to NMFS: June 8, 2006; 
Delay: 17 days. 

Take reduction team: Bottlenose Dolphin; 
Date of statutory deadline for submission of draft plan: April 24, 
2002; 
Date draft plan submitted to NMFS: May 17, 2002[A]; 
Delay: 23 days. 

Source: GAO analysis of information published in Federal Register 
proposed rules. 

[A] The Federal Register notice states that the draft plan was 
submitted on May 17, 2002; NMFS's records indicate that the team's 
facilitator submitted a draft plan to NMFS on May 6, 2002; however, the 
date on the draft plan is May 7, 2002. Due to discrepancies in the 
various records, we relied on the date in the Federal Register notice 
to determine the deadlines. An addendum to the plan was submitted to 
NMFS on May 3, 2003, after the team reconvened on April 1-3, 2003, to 
discuss new scientific information. We used the date of the original 
submission because NMFS was not obligated to reconvene the team to 
address the new information. Under the MMPA, NMFS has the statutory 
authority to issue a proposed plan that departs from a team's draft 
plan. 

[End of table] 

According to NMFS officials, the reasons for delays in submitting draft 
take reduction plans to NMFS include the following: 

* Pelagic Longline: The unexpected death of a take reduction team 
member 1 week before the plan's due date delayed the team's submission 
to NMFS. This team member was a key liaison to the fishing industry, 
working with commercial fishermen to obtain agreement on potential take 
reduction plan measures. 

* Bottlenose Dolphin: The take reduction team found it difficult to 
reach consensus about modifications to fishing practices to help reduce 
incidental take because of the large number of team members involved 
(44) representing multiple types of fisheries. For example, the 
Bottlenose Dolphin team includes four gillnet, one trap/pot, two seine, 
and two stop/pound net fisheries, making it difficult to agree on 
modifications to fishing practices. See appendix II for a description 
of these fishing techniques. 

NMFS Did Not Publish Proposed Take Reduction Plans for Five Teams 
within the Statutory Deadlines for a Variety of Reasons: 

According to the MMPA, once NMFS receives a draft take reduction plan, 
it must publish a proposed plan and implementing regulations in the 
Federal Register within 60 days. NMFS missed the statutory deadline for 
publishing proposed plans and implementing regulations for all five 
teams by 5 days to more than 2 years after the statutory deadlines (see 
table 6). 

Table 6: Delays in Publishing Proposed Take Reduction Plans: 

Take reduction team: Atlantic Large Whale; 
Date of statutory deadline for publication[A]: April 2, 1997; 
Date NMFS published the proposed plan in Federal Register: April 7, 
1997; 
Delay: 5 days. 

Take reduction team: Pacific Offshore Cetacean; 
Date of statutory deadline for publication[A]: October 14, 1996; 
Date NMFS published the proposed plan in Federal Register: February 14, 
1997; 
Delay: 123 days (4 months). 

Take reduction team: Harbor Porpoise; 
Date of statutory deadline for publication[A]: March 15, 1998[B]; 
Date NMFS published the proposed plan in Federal Register: September 
11, 1998; 
Delay: 180 days (6 months). 

Take reduction team: Pelagic Longline; 
Date of statutory deadline for publication[A]: August 7, 2006; 
Date NMFS published the proposed plan in Federal Register: June 24, 
2008; 
Delay: 686 days (almost 2 years). 

Take reduction team: Bottlenose Dolphin; 
Date of statutory deadline for publication[A]: July 16, 2002; 
Date NMFS published the proposed plan in Federal Register: November 10, 
2004; 
Delay: 847 days (over 2 years). 

Source: GAO analysis of information published in Federal Register 
proposed rules. 

[A] This deadline was calculated based on 60 days after the team 
members submitted a draft plan to NMFS. Two teams, the Pelagic Longline 
and Bottlenose Dolphin, submitted their draft plans to NMFS late, but 
we calculated this deadline based on 60 days after the team submitted a 
draft plan to NMFS, not based on 60 days after the prescribed deadline. 

[B] NMFS established the Gulf of Maine take reduction team on February 
12, 1996, and the Mid-Atlantic take reduction team on February 25, 
1997. The current Harbor Porpoise take reduction team is a combination 
of these two prior teams that focused on harbor porpoises in distinct 
geographic areas, the Gulf of Maine and the mid-Atlantic. The original 
draft plan for the Gulf of Maine take reduction team was submitted to 
NMFS on August 8, 1996. Then the Mid-Atlantic team submitted its draft 
plan to NMFS on August 25, 1997. The Gulf of Maine take reduction team 
developed and submitted a second draft take reduction plan on January 
14, 1998. The Mid-Atlantic take reduction team recommendations were 
then incorporated into this January 14, 1998, draft plan as a combined 
plan. We consider this last date, January 14, 1998, as the submission 
date for a draft plan because at that point both teams had concluded 
their deliberations. 

[End of table] 

According to NMFS officials, the reasons for delays in publishing 
proposed plans and implementing regulations include the following: 

* Atlantic Large Whale: Agency officials submitted the proposed plan 
for publication within the statutory deadline but told us that the 
Federal Register did not print the notice containing the proposed take 
reduction plan until 5 days after the statutory deadline. 

* Pacific Offshore Cetacean: The former team coordinator for this team 
said that the proposed plan was delayed because of the time it took to 
comply with various applicable laws. For example, NMFS is required to 
review the proposed plan and consider its effects on small businesses 
and other small entities under the Regulatory Flexibility Act and 
prepare an environmental assessment under the National Environmental 
Policy Act, among other requirements. Developing and drafting an 
environmental assessment is a labor-intensive process requiring 
coordination among scientists, economists, and policymakers. 

* Harbor Porpoise: According to NMFS officials, they delayed preparing 
the proposed plan for publication in the Federal Register because they 
were waiting to see if closures of some fishing areas to protect fish 
would also reduce incidental take of harbor porpoises. In addition, 
NMFS scientists determined that this stock of harbor porpoises was 
migratory and interacting not only with the Gulf of Maine fisheries but 
with mid-Atlantic fisheries as well. As a result of this finding, NMFS 
established another team, the Mid-Atlantic take reduction team, for the 
mid-Atlantic fisheries. NMFS delayed the publication of the proposed 
take reduction plan for the Gulf of Maine fisheries until the Mid- 
Atlantic team developed and submitted a draft plan. Ultimately, the two 
plans were combined and published as a single plan for both the Gulf of 
Maine and mid-Atlantic fisheries. 

* Pelagic Longline: According to NMFS officials, a combination of 
factors caused the proposed plan to be published in the Federal 
Register almost 2 years after the deadline. Take reduction team 
coordinators are responsible for coordinating NMFS's internal review 
and approval for take reduction plans, crafting the regulatory language 
for the plan, and submitting the proposed plans for publication in the 
Federal Register. Because the team coordinator position was vacant for 
approximately 16 months, completion of these tasks was delayed. 

* Bottlenose Dolphin: A combination of factors caused this proposed 
plan to be published in the Federal Register 2 years after the 
deadline, according to NMFS officials. The publication of the proposed 
plan was delayed because NMFS asked team members to reconvene when it 
became clear that the recommended regulatory measures would not reduce 
incidental take to levels below the maximum removal level, as required 
by the MMPA. Although NMFS can propose a plan of its own that deviates 
from the team's draft plan, officials from NOAA's Office of General 
Counsel told us NMFS prefers to wait until the team completes its work 
and submits a draft plan. After they reconvened, the take reduction 
team members developed and submitted a revised draft plan; however, 
because the team coordinator position was vacant for about 8 months, 
preparing the proposed plan for publication was delayed. Additionally, 
because NMFS combined two rules--to benefit both sea turtles and 
bottlenose dolphins--into one, the proposed plan was delayed due to the 
time needed to update an environmental assessment required under the 
National Environmental Policy Act and other associated documents. Also, 
the proposed plan was delayed because of the time it took to comply 
with various laws and executive orders. Finally, the Office of 
Management and Budget took 90 days to review the proposed plan--the 
maximum time allowed for such a review. This review by itself exceeded 
the MMPA's 60-day deadline. 

NMFS officials told us it is extremely difficult for the agency to meet 
the MMPA's deadline for this step in the process. As the examples above 
demonstrate, NMFS officials provided us with a variety of reasons for 
delays in meeting the statutory deadlines for publishing proposed plans 
in the Federal Register; however, the agency has not conducted a 
comprehensive analysis that would identify all of the tasks that must 
be completed during this stage in the process, along with the total 
time needed to complete them. NMFS stated that it has not conducted 
such an analysis because, in some cases, the documents needed are 10 
years old and are not available electronically. 

NMFS Has Complied with the Statutory Deadlines for Public Comment 
Periods: 

According to the MMPA, NMFS must hold a public notice and comment 
period on the proposed plan and implementing regulations for up to 90 
days after the proposed plan's publication in the Federal Register. The 
public comment period is an opportunity for interested persons to 
participate in the development of a take reduction plan by submitting 
their views and concerns about the proposed plan. For all five teams-- 
the Atlantic Large Whale, Bottlenose Dolphin, Harbor Porpoise, Pacific 
Offshore Cetacean, and Pelagic Longline--NMFS has complied with the 
statutory deadline each time. 

NMFS Did Not Publish Final Take Reduction Plans for Four of the Five 
Teams within the Statutory Deadlines: 

According to the MMPA, once the public comment period ends, NMFS must 
publish the final plan and implementing regulations in the Federal 
Register within 60 days. NMFS missed the statutory deadline for four 
teams but met it for the Harbor Porpoise team. According to our 
analysis, the delays ranged from 8 days to just over 1 year (see table 
7). 

Table 7: Delays in Publishing Final Take Reduction Plans: 

Take reduction team: Atlantic Large Whale; 
Date of statutory deadline for publication: July 14, 1997; 
Date NMFS published the final plan in Federal Register: July 22, 
1997[A]; 
Delay: 8 days. 

Take reduction team: Pacific Offshore Cetacean; 
Date of statutory deadline for publication: May 30, 1997; 
Date NMFS published the final plan in Federal Register: October 3, 
1997; 
Delay: 136 days (4 months). 

Take reduction team: Bottlenose Dolphin; 
Date of statutory deadline for publication: April 9, 2005; 
Date NMFS published the final plan in Federal Register: April 26, 2006; 
Delay: 382 days (over 1 year). 

Take reduction team: Pelagic Longline; 
Date of statutory deadline for publication: November 21, 2008; 
Date NMFS published the final plan in Federal Register: To be 
determined[B]; 
Delay: To be determined. 

Source: GAO analysis of information published in Federal Register final 
rules. 

[A] NMFS published an "interim final plan" for the Atlantic Large Whale 
team. Although the MMPA is silent on interim final plans, we consider 
it the final plan because it was in force and had the same effect as a 
final plan. 

[B] NMFS had not published the final plan in the Federal Register as of 
the publication date of our report, December 8, 2008. 

[End of table] 

According to NMFS officials, the reasons for delays in publishing final 
plans and implementing regulations in the Federal Register include the 
following:[Footnote 38] 

* Atlantic Large Whale: The delay was due, in part, to NMFS's efforts 
in responding to the large number of public comments received on the 
proposed plan. 

* Pacific Offshore Cetacean: Because the plan included a fishing gear 
modification, NMFS waited until the preliminary results of a gear 
research experiment indicated that the modification reduced incidental 
take before publishing the final plan. The experiment tested the 
effectiveness of acoustic devices, known as pingers, that are attached 
to fishing nets and emit high-pitched sounds so that marine mammals 
would avoid the nets. 

* Bottlenose Dolphin: According to NMFS officials, the delay was the 
result of the time needed to review and analyze over 4,000 comments the 
agency received during the public comment period and the 90 days the 
Office of Management and Budget took to review the final take reduction 
plan before NMFS could publish it in the Federal Register. 

NMFS Does Not Have a Comprehensive Strategy for Evaluating the 
Effectiveness of Take Reduction Regulations: 

NMFS does not have a comprehensive strategy--identified as a key 
principle by the Government Performance and Results Act of 1993--for 
assessing the effectiveness of take reduction regulations once they 
have been implemented. The Government Performance and Results Act of 
1993 provides a foundation for examining agency performance goals and 
results. Our work related to the act and the experience of leading 
organizations have shown the importance of developing a comprehensive 
strategy for assessing program effectiveness that includes, among other 
things, program performance goals that identify the desired results of 
program activities and reliable information that can be used to assess 
results.[Footnote 39] In the context of NMFS's efforts to measure the 
success of take reduction plans and implementing regulations, such a 
strategy would include, at a minimum, (1) performance goals that 
identify the desired outcomes of the take reduction regulations; (2) 
steps for assessing the effectiveness of potential take reduction 
regulations, such as fishing gear modifications, in achieving the 
goals; (3) a process for monitoring the fishing industry's compliance 
with the requirements of the take reduction regulations; and (4) 
reliable data assessing the regulation's effect on achieving the goals. 
Instead of such a comprehensive strategy, we found that although NMFS 
uses short- and long-term goals established by the MMPA to evaluate the 
success of take reduction regulations, these goals and the data that 
NMFS uses to measure the impact of the take reduction regulations have 
a number of limitations. In addition, while NMFS has taken steps to 
identify the impact of proposed take reduction regulations prior to 
their implementation, the agency has limited information about the 
fishing industry's compliance with the regulations once they have been 
implemented. As a result, when incidental takes occur in fisheries 
covered by take reduction regulations, it is difficult for NMFS to 
determine whether the regulations were not effective in meeting the 
MMPA's goals or whether the fisheries were not complying with the 
regulations. 

Limitations in the Goals and Data That NMFS Currently Uses to Evaluate 
the Success of Take Reduction Regulations Impede Effective Program 
Evaluations: 

The MMPA identifies, and NMFS further defines, short-and long-term 
goals for reducing incidental take of marine mammals that take 
reduction regulations should achieve. Specifically, the MMPA set a 
short-term goal of reducing incidental take--also known as fishery- 
related mortality--for strategic stocks below the maximum removal level 
within 6 months of a plan's implementation and set a long-term goal of 
reducing fishery-related mortality to insignificant levels approaching 
a zero mortality and serious injury rate within 5 years of a plan's 
implementation, which NMFS generally defines as 10 percent of the 
maximum removal level.[Footnote 40] NMFS officials told us that NMFS 
staff and take reduction team members review whether or not the goals 
have been met for the stocks covered by their teams. 

However, NMFS officials, Marine Mammal Commission officials, and a 
Scientific Review Group chair all considered the 6-month time frame for 
meeting the short-term goal to be unrealistic. Specifically, some noted 
that due to the extensive time needed to gather and publish data on the 
maximum removal level and fishery-related mortality estimates, NMFS 
does not have the necessary information to assess the goal within the 6-
month time frame. A NMFS official also noted that fishing changes over 
the year; therefore, assessing whether fishery-related morality is 
below the maximum removal level during a 6-month time frame may not 
consider mortality that may occur during both the busiest and the 
slowest fishing seasons. While the MMPA sets this 6-month goal, it does 
not impose consequences on NMFS or the regulated fisheries if the goal 
is not met. 

Furthermore, these goals may not help NMFS assess the success of the 
regulations because we found that there was not always greater success 
in meeting the goals after take reduction regulations were implemented 
than before they were implemented. Also, if the goals had been met for 
a stock in a given year, in some cases the goals did not continue to be 
met in the following years. Specifically, we found that for two stocks, 
[Footnote 41] the short-term goal had been met prior to the regulations 
being implemented but was no longer being met in 2007.[Footnote 42] In 
addition, for two other stocks, the long-term goal had been met prior 
to implementation of the regulations,[Footnote 43] but was no longer 
being met in 2007.[Footnote 44] Furthermore, for two stocks, the short-
term goal had been met and for two stocks, the long-term goal had been 
met in 2007, but these goals had already been met prior to 
implementation of the take reduction regulations.[Footnote 45] In cases 
where the goals were met prior to the implementation of take reduction 
regulations, the goals cannot be used to determine the regulations' 
impact on reducing take. 

In addition, according to NMFS officials, changes to the marine 
environment that happen during the same time period as the 
implementation of take reduction regulations make it difficult to 
assess whether the regulations are the reason that the short-and long- 
term goals for a stock have been achieved or whether it was other 
changes. Specifically, state or federal fishing regulations unrelated 
to the take reduction team process may result in less fishing in the 
fisheries covered by the take reduction team. In such a scenario, 
fishery-related mortality may decrease because there are fewer 
opportunities for fishing vessels to interact with marine mammals. 
Therefore, a lower level of fishery-related mortality may lead to 
achievement of the MMPA's goals for a stock even if the take reduction 
regulations themselves were not the primary reason for the lower level 
of incidental take. 

Moreover, limitations in some of the data used to determine whether the 
MMPA's short-and long-term goals for reducing incidental take by 
commercial fisheries have been met may lead to inaccurate conclusions 
about the effectiveness of the take reduction regulations.[Footnote 46] 
We reviewed the stock assessment reports for 9 of the 10 strategic 
stocks and all 3 of the nonstrategic stocks covered by take reduction 
regulations and found that for 2007, the short-term goal for 4 of the 9 
strategic stocks had been achieved and the long-term goal had been 
achieved for 3 of the 12 strategic and nonstrategic stocks.[Footnote 
47] However, we also found that the information used to determine the 
maximum removal level or the fishery-related mortality estimate for 6 
of the 9 strategic stocks covered by these regulations was less precise 
than NMFS guidelines recommend. Because these are the two key sources 
of information for determining whether the MMPA's short-and long-term 
goals have been met, this imprecision may cause NMFS to incorrectly 
assess whether the take reduction regulations have been successful. 

NMFS officials stated that limitations in the data make it difficult to 
know the reason for changes in meeting the goals from one year to 
another. For example, we found that the short-term goal for the Gulf of 
Maine stock of humpback whales covered by the Atlantic Large Whale take 
reduction team had been met prior to implementation of the take 
reduction regulations; however, according to the stock assessment 
report, it did not meet the goal in 2007.[Footnote 48] Meanwhile, 
between the year prior to when the regulations were implemented and 
2007, NMFS altered its stock definition for these marine mammals in a 
way that decreased the number of animals included in the population 
size estimate--a key aspect of determining the maximum removal level. 
This change made the maximum removal level much lower than it had been 
before the regulations were implemented, making it more difficult to 
achieve the goals. Because of this change in NMFS's approach to 
calculating the maximum removal level, it is difficult to determine 
whether ineffectiveness of the take reduction regulations or the change 
in the maximum removal level led to the short-term goal no longer being 
met for this stock. 

NMFS Studies the Impact of Proposed Take Reduction Regulations prior to 
Their Implementation, but Has Limited Information about Industry 
Compliance: 

NMFS has assessed the likelihood that proposed take reduction 
regulations would achieve the short-and long-term goals of reducing 
incidental take for all four teams with final take reduction plans and 
regulations. Specifically, for all four plans, scientists evaluated 
whether key proposed measures for modifying fishing gear or changing 
the times or areas where fishing could occur were likely to decrease 
incidental take. For example, NMFS scientists analyzed data from 
previous incidental take in the gillnet fisheries of concern for 
bottlenose dolphins and found that incidental take had occurred at a 
higher rate on the vessels that used nets with larger mesh openings. 
Because this type of gear would be restricted under the proposed 
regulations, NMFS had reason to believe that these gear restrictions 
would result in reduced incidental take of bottlenose dolphins. 
[Footnote 49] Similarly, according to the environmental assessment 
report for the Harbor Porpoise take reduction team, a controlled 
experiment tested the effectiveness of acoustic devices--often called 
pingers--attached to fishing nets. Pingers emit a high-pitched sound 
that harbor porpoises can hear, which results in them avoiding fishing 
nets. This experiment allowed NMFS scientists to predict that proposed 
regulations to implement pingers would likely result in a decline of 
incidental take.[Footnote 50] 

Although NMFS has conducted some assessments of the likelihood that 
proposed take reduction regulations will achieve the goals of reducing 
incidental take, they have limited information about the extent to 
which fisheries comply with take reduction regulations once they have 
been implemented. As a result, when incidental takes occur in fisheries 
covered by take reduction regulations, it is difficult for NMFS to 
determine whether the regulations were not effective in meeting the 
MMPA's goals or whether the fisheries were not complying with the 
regulations. Specifically, we determined that NMFS does not have 
comprehensive approaches to measure the extent to which fisheries 
comply with the regulations for the four take reduction plans that it 
has implemented. However, for all of these implemented regulations, 
NMFS has some--albeit limited--information from fisheries observer or 
enforcement programs that provide an indication of whether fisheries 
are complying with the regulations.[Footnote 51] For example, when 
incidental take of harbor porpoises in the fisheries covered by the 
Harbor Porpoise take reduction team recently increased, NMFS scientists 
used observer information about incidental take to determine whether or 
not these takes occurred when vessels were complying with the 
requirement to use pingers on their nets.[Footnote 52] However, 
according to the scientists, the usefulness of this information in 
determining actual compliance was limited because observers could only 
identify whether the pingers were attached to the net, not whether 
these pingers functioned properly. On the Pacific Offshore Cetacean 
team, the team coordinator stated that in the past, NMFS has received 
information from the observer program about fishing vessels monitored 
by observers that were not in compliance with the take reduction 
regulations. However, she stated that NMFS does not routinely review 
the observer information to identify or document the extent of these 
instances or estimate the extent of overall compliance with the take 
reduction regulations. 

In addition to the information that it receives from the observer 
programs, NMFS receives some information about compliance from NOAA's 
Office of Law Enforcement, the U.S. Coast Guard, or state enforcement 
agencies. Specifically, team coordinators told us that officials from 
the U.S. Coast Guard attend take reduction team meetings to discuss 
instances where the agencies found vessels out of compliance with take 
reduction regulations during the course of their enforcement work. 
However this information is not generally extensive enough to provide 
overall assessments of the extent to which fisheries are complying with 
the regulations. 

In 2007, we reported that NMFS lacked a strategy for assessing industry 
compliance with the Atlantic Large Whale team's take reduction plan, 
and we recommended that it develop one.[Footnote 53] In response to our 
report, the team is beginning to develop a comprehensive approach to 
monitoring compliance. NMFS staff members are currently developing a 
plan for take reduction team members to review during their next 
meeting, which is planned for early 2009. No other take reduction teams 
are developing comprehensive approaches for monitoring compliance at 
this time. 

Conclusions: 

NMFS faces a very large, complex, and difficult task in trying to 
protect marine mammals from incidental mortality and serious injury 
during the course of commercial fishing operations, as the MMPA 
requires. Without comprehensive, timely, and accurate population and 
mortality data for the 156 marine mammal stocks that NMFS is charged 
with protecting, NMFS may be unable to accurately identify stocks that 
meet the legal requirements for establishing take reduction teams, 
thereby depriving them of the protection they need to help recover or 
maintain healthy populations. Conversely, unreliable data may lead NMFS 
to erroneously establish teams for stocks that do not need them, 
wasting NMFS's limited resources. 

For those stocks that meet the requirements for establishing take 
reduction teams, it is important that NMFS adhere to the deadlines in 
the MMPA, as delays in establishing teams and developing and finalizing 
take reduction plans could result in continued harm to already 
dwindling marine mammal populations. However, we recognize that it may 
not be useful to establish take reduction teams for those stocks that 
meet the MMPA requirements but whose population declines are not being 
caused by commercial fisheries. We also acknowledge it may not be 
possible for NMFS to meet some of the MMPA's deadlines given the 
requirements of other laws that NMFS must comply with in developing 
take reduction plans and the need for various levels of review and 
approval. Nonetheless, the MMPA's deadlines are clear, and unless the 
law is amended to address these situations, NMFS has a legal obligation 
to comply with them. 

Finally, for stocks for which NMFS has developed take reduction 
regulations, it is important for NMFS to assess their effectiveness in 
reducing serious injury and mortality to acceptable levels. Doing so 
will require more comprehensive information about the fishing 
industry's compliance with take reduction regulations so that if the 
short-and long-term goals are not met, NMFS knows whether to attribute 
the failure to a flaw in the regulations or to noncompliance with them. 
Without a comprehensive strategy for assessing the effectiveness of its 
take reduction plans and implementing regulations and industry's 
compliance with them, NMFS may be missing opportunities to better 
protect marine mammals. 

Matters for Congressional Consideration: 

To facilitate the oversight of NMFS's progress and capacity to meet the 
statutory requirements for take reduction teams, Congress may wish to 
consider taking the following three actions: 

* direct the Assistant Administrator of NMFS to report on major data, 
resource, or other limitations that make it difficult for NMFS to 
accurately determine which marine mammals meet the statutory 
requirements for establishing take reduction teams; establish teams for 
stocks that meet these requirements; and meet the statutory deadlines 
for take reduction teams; 

* amend the statutory requirements for establishing a take reduction 
team to stipulate that not only must a marine mammal stock be strategic 
and interacting with a Category I or II fishery, but that the fishery 
with which the marine mammal stock interacts causes at least occasional 
incidental mortality or serious injury of that particular marine mammal 
stock; and: 

* amend the MMPA to ensure that its deadlines give NMFS adequate time 
to publish proposed and final take reduction plans and implementing 
regulations while meeting all the requirements of the federal 
rulemaking process. 

Recommendation for Executive Action: 

We recommend that the Assistant Administrator of NMFS develop a 
comprehensive strategy for assessing the effectiveness of each take 
reduction plan and implementing regulations, including, among other 
things, establishing appropriate goals and steps for comprehensively 
monitoring and analyzing rates of compliance with take reduction 
measures. 

Agency Comments and Our Evaluation: 

We provided a draft copy of this report to the Secretary of Commerce 
for review and comment. In response to our request, we received 
general, technical, and editorial comments from NOAA by email, which 
stated that the agency agreed with our recommendation that NMFS should 
develop a comprehensive strategy for assessing the effectiveness of 
each take reduction plan and the implementing regulations. We have 
incorporated the technical and editorial comments provided by the 
agency, as appropriate. 

As we agreed with your office, unless you publicly announce the 
contents of this report earlier, we plan no further distribution until 
30 days from the report date. At that time, we will send copies to the 
Secretary of Commerce, the Administrator of NOAA, and appropriate 
congressional committees, and other interested parties. In addition, 
the report will be available at no charge on the GAO Web site at 
[hyperlink, http://www.gao.gov]. 

If you or your staff have any questions about this report or need 
additional information, please contact me at (202) 512-3841 or 
mittala@gao.gov. Contact points for our Offices of Congressional 
Relations and Public: 

Affairs may be found on the last page of this report. GAO staff who 
made major contributions to this report are listed in appendix III. 

Sincerely yours, 

Signed by: 

Anu K. Mittal: 
Director, Natural Resources and Environment: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

The objectives of this review were to determine the extent to which (1) 
available data allow the National Marine Fisheries Service (NMFS) to 
accurately identify the marine mammal stocks that meet the Marine 
Mammal Protection Act’s (MMPA) requirements for establishing take 
reduction teams, (2) NMFS has established take reduction teams for 
those marine mammal stocks that meet the statutory requirements, (3) 
NMFS has met the statutory deadlines established in the MMPA for the 
take reduction teams subject to the deadlines and the reasons for any 
delays, and (4) NMFS has developed a comprehensive strategy for 
evaluating the effectiveness of the take reduction plans that have been 
implemented. 

To determine the extent to which available data allowed NMFS to 
accurately identify marine mammal stocks that meet the MMPA’s 
requirements for establishing take reduction teams, we identified 
stocks for which NMFS lacked data on either the human-caused mortality 
and serious injury estimate (hereafter referred to as human-caused 
mortality estimate) or the potential biological removal levels 
(hereafter referred to as maximum removal levels).[Footnote 54] To do 
this, we first reviewed all 156 stocks identified in NMFS’s 2007 stock 
assessment reports and removed 19 stocks currently covered by take 
reduction teams. Then we removed 24 stocks that are listed as 
endangered or threatened under the Endangered Species Act (ESA) or 
designated as depleted under the MMPA because NMFS does not use 
information about human-caused mortality and the maximum removal level 
to make strategic status decisions for these stocks. We then reviewed 
the remaining 113 stocks to identify those that lacked either a human-
caused mortality estimate or a maximum removal level. After identifying 
those that lacked human-caused mortality or maximum removal levels, we 
reviewed a sample of the remaining 74 stocks that did have these 
determinations to assess the reliability of the information used to 
determine human-caused mortality estimates and maximum removal levels. 

We identified several key data elements in NMFS’s stock assessment 
reports that the agency uses to determine human-caused mortality 
estimates and maximum removal levels: 

* abundance estimates (population size estimates) and NMFS calculation 
of the estimates’ precision, 

* the age of data used to calculate population size estimates, 

* fishery-related mortality and serious injury estimates (hereafter 
known as fishery-related mortality estimates) and NMFS calculation of 
the estimates’ precision, 

* adjustments made to the maximum removal level in order to account for 
fishery-related mortality estimate imprecision, 

* information sources such as observer data used to calculate fishery-
related mortality estimates, and, 

* qualitative information identified in the stock assessment reports 
about scientists’ concerns regarding data strengths or limitations. 

We also identified criteria for assessing the quality of these data 
elements using information from the MMPA and publications such as 
NMFS’s guidelines for preparing stock assessment reports and stock 
assessment improvement plan and confirmed the criteria with NMFS 
officials.[Footnote 55] While scientists and publications also 
identified bias in population size and mortality estimates as a 
potential data reliability problem, we did not assess the extent to 
which existing data sources included bias because data and accompanying 
criteria to make such an assessment were not available. 

We then analyzed the key data elements for a sample of stocks to 
determine the extent to which the data met the criteria we identified. 
We chose our sample of stocks to review by conducting a stratified 
random sample of the 74 stocks that were not currently covered by take 
reduction teams, did not receive strategic status due to MMPA 
designations or listings under the ESA, and had both human-caused 
mortality and serious injury estimates and maximum removal levels. The 
sample of 28 stocks included all strategic stocks that met these 
criteria as well as a representative sample of stocks from each of the 
three NMFS Fishery Science Centers responsible for publishing the stock 
assessment reports. We then extrapolated the results of our review for 
this sample to all 74 stocks that met the criteria listed above. We 
calculated 95 percent confidence intervals for each of the estimates 
made from this sample. The confidence intervals for these estimates are 
presented in table 8. 

Table 8: Confidence Intervals for Estimates Based on GAO’s Review of 
Selected Stock Assessment Reports: 

Characteristics: Population estimates used information that was 8 years 
old or older; 
Estimated population total with this characteristic: 11;
95 percent confidence interval of the total estimate: 5 - 18. 

Characteristics: Population size estimates used information that was 
between 5 and 8 years old; 
Estimated population total with this characteristic: 21;
95 percent confidence interval of the total estimate: 12 - 29. 

Characteristics: Population size estimates were less precise than NMFS 
guidelines recommend; 
Estimated population total with this characteristic: 48; 
95 percent confidence interval of the total estimate: 41 - 56. 

Characteristics: Scientists could not calculate the precision of 
fishery-related mortality estimates; 
Estimated population total with this characteristic: 48; 
95 percent confidence interval of the total estimate: 38 - 58. 

Characteristics: Mortality estimates were less precise than NMFS 
guidance recommends; 
Estimated population total with this characteristic: 24; 
95 percent confidence interval of the total estimate: 14 - 34 

Source: GAO analysis. 

[End of table] 

We also spoke with NMFS and Marine Mammal Commission officials to 
identify the potential impacts of using unreliable information to 
determine human-caused mortality or maximum removal levels. 

In some cases, we found potentially conflicting information within 
individual stock assessment reports about whether fishery-related 
mortality was unknown or estimated as zero. In these cases, we used the 
information that NMFS provided in stock assessment report summary 
tables to resolve the inconsistencies within the individual stock 
assessment reports because we considered these estimates to be the 
agency’s final decision. In all cases, these summary tables identified 
the fishery-related mortality estimates for these stocks as zero rather 
than unknown. 

To determine the extent to which NMFS has established take reduction 
teams for those marine mammal stocks that meet the statutory 
requirements, we analyzed stock assessment reports for 1995 through 
2007 and lists of fisheries for 1996 through 2008 and identified marine 
mammal stocks that met the statutory requirements for establishing take 
reduction teams. To do this, we reviewed the MMPA and identified the 
statutory requirements for establishing take reduction teams, then 
interviewed officials from the National Oceanic and Atmospheric 
Administration’s (NOAA) Office of General Counsel to verify that we had 
identified the correct requirements. We also analyzed the stock 
assessment reports and list of fisheries and identified all of the 
stocks that have met the statutory requirements, which include marine 
mammal stocks that (1) were listed as strategic according to a final 
stock assessment report and (2) interacted with a Category I or II 
fishery according to a current list of fisheries. We developed a 
database and used it to analyze this information. Once we identified 
the marine mammal stocks that met the statutory requirements, we 
verified with NMFS officials the stocks for which the agency has 
already established take reduction teams. On the basis of this 
information, we determined which stocks met the statutory requirements 
but are not covered by a team. We met with NMFS officials to review and 
verify our findings, and interviewed NMFS officials to obtain reasons 
why the agency has not established take reduction teams for these 
stocks. We also met with representatives of the Marine Mammal 
Commission to review our findings. 

To determine the extent to which NMFS has met the MMPA’s deadlines for 
the five take reduction teams subject to the deadlines and the reasons 
for any delays, we: 

* identified five key deadlines listed in the MMPA for NMFS and take 
reduction teams and interviewed officials from NOAA’s Office of General 
Counsel to confirm the deadlines; 

* obtained and reviewed documentation, such as take reduction plans, 
Federal Register notices announcing the establishment of teams, and 
NMFS’s proposed and final take reduction plans and implementing 
regulations published in the Federal Register; 

* analyzed the dates published in the Federal Register documents to 
determine whether each of the five take reduction teams had met their 
statutory deadlines; and; 

* met with NMFS officials to confirm the accuracy of our analysis of 
information published in Federal Register notices. 

To determine the reasons for any delays in meeting the statutory 
deadlines, we interviewed take reduction team coordinators from NMFS’s 
Office of Protected Resources, officials from NOAA’s Office of General 
Counsel, marine biologists in NMFS’s Fishery Science Centers, and 
members of each of the five teams subject to the deadlines. We also 
obtained and reviewed NMFS documentation about various laws and 
executive orders that the agency must comply with when publishing 
proposed and final take reduction plans in the Federal Register. 

To determine the extent to which NMFS has developed a comprehensive 
strategy for evaluating the effectiveness of the take reduction plans 
that have been implemented, we reviewed the MMPA and relevant NMFS 
documentation and spoke with NMFS officials and Scientific Review Group 
chairs regarding the (1) performance goals used by NMFS to assess the 
success of take reduction regulations, (2) actions taken prior to 
implementing proposed regulations to increase the likelihood that the 
regulations will achieve these performance goals, and (3) extent to 
which NMFS has information about fisheries’ compliance with implemented 
take reduction regulations. We also reviewed stock assessment reports 
from 1995 through 2007 for stocks covered by three of the four take 
reduction teams with final regulations in place to determine whether 
the stocks met the short- and long-term goals in each of those years. 
[Footnote 56] To calculate whether the goals were met prior to 
implementation of the take reduction regulations, we used the last year 
for which the fishery-related mortality estimates in the stock 
assessment reports did not include any information about incidental 
take that was collected after the regulations were implemented. We 
excluded the strategic bottlenose dolphins from our review due to 
methodological differences between the way NMFS reports on fishery-
related mortality and maximum removal levels for them versus for the 
other stocks. Specifically, due to concerns about the stock definition 
for the Western North Atlantic coastal bottlenose dolphins covered by 
the Bottlenose Dolphin take reduction team, NMFS further divides this 
population into management units. NMFS identifies different fishery-
related mortality estimates for each of these management units, but not 
for the Western North Atlantic coastal bottlenose dolphins as a whole, 
making it difficult to determine whether the total population met the 
short- and long-term goals. In addition, we assessed the reliability of 
the data used to determine whether NMFS has met the goals for the 
strategic stocks covered by three of the four take reduction teams with 
final regulations. To do this, we analyzed the extent to which key data 
elements met data quality criteria identified by the MMPA and NMFS. We 
reviewed strategic stocks because they are most likely to be at 
continued risk of fishery-related take leading to unsustainable 
population declines. We also compared the data for the year prior to 
when the regulations were first implemented with the data from 2007 to 
identify any changes that occurred in meeting the goals before and 
after the take reduction regulations went into effect. 

We conducted this performance audit from September 2007 to December 
2008 in accordance with generally accepted government auditing 
standards. Those standards require that we plan and perform the audit 
to obtain sufficient, appropriate evidence to provide a reasonable 
basis for our findings and conclusions based on our audit objectives. 
We believe that the evidence obtained provides a reasonable basis for 
our findings and conclusions based on our audit objectives. 

[End of section] 

Appendix II: Commercial Fishing Techniques and How Marine Mammals Are 
Affected: 

The table below presents information about select commercial fishing 
techniques, including the type of gear, how the injury or death occurs, 
and examples of marine mammals affected. 

Table 9: Commercial Fishing Techniques and How Marine Mammals Are 
Affected: 

Type of fishery: Gillnet; 
Type of gear: A gillnet is a curtain of netting that hangs in the water 
at various depths, suspended by a system of floats and weights. 
Gillnets may sometimes be anchored. The mesh spaces are large enough 
for a fish’s head to pass through, but not its body. As fish, such as 
sardines, salmon, or cod try to back out, their gills are entangled in 
the net or buoy lines. 
How injury or death occurs: Marine mammals get entangled in the nets or 
fishing lines associated with the gear. 
Examples of marine mammals affected: Dolphins (bottlenose and common); 
Large whales (right, humpback, and sperm); Harbor porpoises. 

Type of fishery: Longline; 
Type of gear: Longline fishing is conducted by extending a central 
fishing line behind a fishing boat that ranges from 1 to more than 50 
miles long. This central line is strung with smaller lines of baited 
hooks, which hang at spaced intervals. After leaving the line to soak 
for a time to attract fish, fishermen return to haul in their catch, 
such as tuna or swordfish. 
How injury or death occurs: Marine mammals are attracted to the baited 
hooks or the catch and become caught on the hooks or the catch on the 
hooks. They might also come into accidental contact with gear and 
become entangled in the fishing gear. 
Examples of marine mammals affected: Dolphins (Risso’s); Small whales 
(pilot and false killer). 

Type of fishery: Long-haul and beach-seine; 
Type of gear: Long-haul seine fishing uses very large nets 
(approximately 3,000 to 6,000 feet) pulled by two boats that encircle 
fish, such as bluefish and croaker, and are then gathered together 
around a fixed stake. Beach-seine fishing involves setting large nets 
in the water near a beach with the top floating on the surface and 
bottom falling deeper in the water. The nets are then pulled up onto 
the beach, entrapping fish in their path. 
How injury or death occurs: Marine mammals can get entangled in the 
large nets that encircle fish. 
Examples of marine mammals affected: Dolphins (bottlenose). 

Type of fishery: Stop/pound nets; 
Type of gear: Stop net fishing uses a stationary, anchored net extended 
perpendicular to the beach. Once the catch accumulates near the end of 
the stop net, a beach haul seine is used to capture fish and bring them 
ashore. The stop net is traditionally left in the water for 1–5 days, 
but can be left as long as 15 days. Stop nets are used to catch mullet. 
Pound nets are stationary gear in nearshore coastal and estuarine 
waters. Pound net gear includes a large mesh lead posted perpendicular 
to the shoreline and extending outward to the corral, or ‘‘heart,’’ 
where the catch accumulates. Pound nets typically catch weakfish, spot, 
and croaker. 
How injury or death occurs: Marine mammals can get entangled in the 
stationary nets along with the fish the nets intend to catch. 
Examples of marine mammals affected: Dolphins (bottlenose). 

Type of fishery: Traps/pots; 
Type of gear: Traps and pots are submerged cages that usually lie on 
the ocean floor, attract fish or shellfish, and hold them alive until 
fishermen return to haul in the gear. Ropes run between the cages along 
the ocean floor and to a buoy floating at the surface, so fishermen can 
locate their gear. 
How injury or death occurs: Marine mammals get entangled in the rope 
connecting the cages to each other and the floating buoy. Specifically, 
right whales feed with their mouths open for extended periods of time 
and can become entangled in ropes and other gear. 
Examples of marine mammals affected: Large whales (right, humpback, and 
fin); Dolphins (bottlenose). 

Type of fishery: Trawl; 
Type of gear: Trawlers tow a cone-shaped net behind a fishing boat. 
They tow nets at various depths, ranging from just below the surface to 
along the ocean floor, depending on the type of fish they are trying to 
catch. 
How injury or death occurs: Marine mammals become entangled or caught 
within the nets. 
Examples of marine mammals affected: Dolphins (common and white-sided); 
Small whales (pilot). 

Source: GAO analysis of data from the National Marine Fisheries Service 
and the Monterey Bay Aquarium. 

[End of table] 

[End of section] 

Appendix III: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Anu K. Mittal, Director, (202) 512-3841, or mittala@gao.gov. 

Staff Acknowledgments: 

In addition to the individual named above, Stephen D. Secrist, 
Assistant Director; Leo G. Acosta; Mark Braza; Carmen Donohue; Beth 
Faraguna; Rich Johnson; Alison O’Neill; Dae Park; Kim Raheb; Bruce 
Skud; Jeanette Soares; and Barbara Steel-Lowney made significant 
contributions to this report. 

[End of section] 

Footnotes: 

[1] These five marine mammals are (1) Western Atlantic stock of North 
Atlantic right whales, (2) Gulf of Maine stock of humpback whales, (3) 
Gulf of Maine/Bay of Fundy stock of harbor porpoises, (4) California 
stock of long-beaked common dolphins, and (5) Hawaii stock of false 
killer whales. 

[2] Under 16 U.S.C. § 1387(f)(3), if there is insufficient funding 
available to develop and implement a take reduction plan for all stocks 
that meet the requirements, the Secretary of Commerce must establish 
teams according to the priorities listed in the statute. Further, under 
16 U.S.C. § 1387(f)(3)(6)(A), the Secretary has the discretion to 
establish take reduction teams for any marine mammal stock that 
interacts with a Category I fishery and for which the Secretary has 
determined, after notice and opportunity for public comment, has a high 
level of mortality and serious injury across a number of such marine 
mammal stocks. 

[3] Optimum sustainable population is defined by the MMPA as “with 
respect to any population stock, the number of animals which will 
result in the maximum productivity of the population or the species, 
keeping in mind the carrying capacity of the habitat and the health of 
the ecosystem of which they form a constituent element.” 

[4] Specifically, a fishery is classified as Category I if it is by 
itself responsible for the annual removal of 50 percent or more of any 
stock’s maximum removal level. A fishery is classified as Category II 
if it is one that, collectively with other fisheries, is responsible 
for the annual removal of more than 10 percent of any marine mammal 
stock’s maximum removal level and that is by itself responsible for the 
annual removal of between 1 and 50 percent, exclusive, of any stock’s 
maximum removal level. Category III fisheries have a remote likelihood 
of, or no known incidental mortality and serious injury of marine 
mammals. Specifically, Category III fisheries include, among others, 
those that collectively with other fisheries are responsible for the 
annual removal of 10 percent or less of any marine mammal stock’s 
maximum removal level. 

[5] If a strategic stock has human-caused mortality and serious injury 
that is less than the maximum removal level and the stock interacts 
with Category I or II fisheries, this deadline is 11 months instead of 
6 months. The deadline is also 11 months for nonstrategic stocks 
interacting with Category I fisheries that NMFS has found, after notice 
and public comment, to have a high level of mortality across a number 
of marine mammal stocks. 

[6] If a take reduction team addressing a strategic stock whose human-
caused mortality and serious injury is above the maximum removal level 
does not submit a draft plan to NMFS within 6 months, NMFS must publish 
a proposed plan within 8 months of the team’s establishment. For 
strategic stocks whose human-caused mortality and serious injury is 
below the maximum removal level but that interact with Category I or II 
fisheries, NMFS’s deadline is 13 months. 

[7] One team––the Atlantic Trawl Gear––is not subject to the statutory 
deadlines. NMFS established the Atlantic Trawl Gear take reduction team 
as a result of a settlement agreement ending the 2002 lawsuit brought 
by an environmental group. At the time of the settlement agreement, the 
stocks covered by the team were strategic and interacting with Category 
I fisheries. After conducting the research and surveys the settlement 
required, NMFS realized that the stocks were not strategic. NMFS chose 
to abide by the settlement agreement’s requirement to establish the 
team despite this change in the strategic status because the stocks 
were interacting with a Category I fishery. The MMPA gives NMFS the 
discretion to establish teams for nonstrategic stocks interacting with 
Category I fisheries that NMFS has determined, after notice and public 
comment, to have a high level of mortality across a number of marine 
mammal stocks. However, at the present time, the fisheries involved are 
no longer Category I fisheries and NMFS has never made the required 
determination. The MMPA is silent on deadlines for teams, such as the 
Atlantic Trawl Gear team, that address nonstrategic stocks that do not 
interact with Category I fisheries. Therefore none of the deadlines 
apply to this team. 

[8] The Marine Mammal Commission is composed of three presidential 
appointees who are knowledgeable in the fields of marine ecology and 
resource management and are not in a position to profit from the taking 
of marine mammals. 

[9] The MMPA divides jurisdiction over marine mammals between the U.S. 
Fish and Wildlife Service and NMFS but gives NMFS the exclusive 
authority to establish take reduction teams and implement take 
reduction plans for all marine mammals. NMFS has not established take 
reduction teams for any of the marine mammals under the Fish and 
Wildlife Service’s jurisdiction (sea otters, polar bears, manatees, 
dugongs, and walruses). This report focuses on marine mammals under 
NMFS’s jurisdiction. 

[10] Under 16 U.S.C. § 1387(f)(3), highest priority must be given to 
the development and implementation of take reduction plans for species 
or stocks whose level of incidental mortality and serious injury 
exceeds the maximum removal level, those that have a small population 
size, and those that are declining most rapidly. 

[11] A stock is also considered strategic if it is designated as 
depleted under the MMPA or if it is listed or likely to be listed as 
endangered or threatened under the Endangered Species Act. For these 
stocks, human-caused mortality does not necessarily have to exceed the 
maximum removal level. 

[12] The minimum population estimate is an estimate of the number of 
animals in a stock that (1) is based on the best available scientific 
information on abundance, incorporating the precision and variability 
associated with such information, and (2) provides reasonable assurance 
that the stock size is equal to or greater than the estimate. 

[13] Regional Scientific Review Groups were established by the 1994 
amendments to the MMPA. The MMPA directs NMFS to identify members of 
these groups in consultation with the Marine Mammal Commission, among 
others. 

[14] For the purposes of categorizing fisheries, NMFS uses only 
estimates for fishery-related mortality rather than the estimates for 
total human-caused mortality. 

[15] Fisheries are classified as Category I if the fishery by itself is 
responsible for the annual removal of 50 percent or more of any stock’s 
maximum removal level. A Category II fishery is one that, collectively 
with other fisheries, is responsible for the annual removal of more 
than 10 percent of any marine mammal stock’s maximum removal level, and 
by itself is responsible for the annual removal of between 1 and 50 
percent, exclusive, of any stock’s maximum removal level. 

[16] Specifically, the MMPA requires the Secretary to publish the take 
reduction plan proposed by the team, any changes proposed by the 
Secretary with an explanation of the reasons for the changes, and 
proposed regulations to implement such a plan. 

[17] “Small entities” includes businesses, small governmental 
jurisdictions, and certain not-for-profit organizations. 

[18] Exec. Order No. 12866, 58 Fed. Reg. 51735 (Sept. 30, 1993); Exec. 
Order No. 13,132, 64 Fed. Reg. 43255 (Aug. 4, 1999); Exec. Order No. 
12898, 59 Fed. Reg. 7629 (Feb. 11, 1994); Exec. Order No. 13158, 65 
Fed. Reg. 34909 (May 26, 2000). 

[19] The MMPA directs NMFS to establish take reduction teams for stocks 
designated as strategic that interact with Category I or II fisheries. 

[20] NMFS has identified a total of 156 marine mammal stocks in United 
States waters that are under its jurisdiction. However, a NMFS 
scientist told us that additional marine mammals exist in the waters 
off the Pacific islands under NMFS’s jurisdiction that have not been 
identified and defined as stocks because the agency does not have the 
necessary data for these marine mammals. Our analysis of the stock 
assessment reports focused on 113 of the 156 stocks that NMFS has 
identified, excluding from our analysis the 19 stocks that are 
currently addressed by take reduction teams and the 24 that are 
designated as strategic because of ESA listing or MMPA designation and 
therefore do not rely on human-caused mortality estimates and maximum 
removal levels to determine strategic status. 

[21] NOAA Fisheries National Task Force for Improving Marine Mammal and 
Turtle Stock Assessments, A Requirements Plan for Improving the 
Understanding of the Status of U.S. Protected Marine Species. National 
Marine Fisheries Service, NOAA Technical Memorandum NMFS-F/SPO-63 
(Silver Spring, Maryland: September 2004). 

[22] We analyzed a stratified random sample of 28 stocks out of the 74 
stocks that had both mortality estimates and maximum removal levels and 
used the results from this sample to estimate the results for all 74 
stocks. For this reason, numbers in the report about these 74 stocks 
are described as approximations. We calculated 95 percent confidence 
intervals for each of the estimates made from our sample. The 
confidence intervals for these estimates are presented in appendix I, 
table 8. 

[23] NMFS guidelines identified data that are 8 years old or older as 
unreliable because a population that declines at 10 percent per year 
from a sustainable level would be reduced to less than 50 percent of 
its original abundance in 8 years. 

[24] National Marine Fisheries Service, Office of Protected Resources, 
Review of Commercial Fisheries’ Progress Toward Reducing Mortality and 
Serious Injury of Marine Mammals Incidental to Commercial Fishing 
Operations. United States Department of Commerce, National Oceanic and 
Atmospheric Administration (Silver Spring, Maryland: 2004). 

[25] NMFS calculates precision by identifying a coefficient of 
variation (CV) for each estimate. The lower the CV percentage, the more 
precise the estimate. NMFS’s publications state that CVs of 30 percent 
or lower are considered to have a desirable level of precision 
appropriate for determining strategic status. Therefore, estimates with 
CVs greater than 30 percent are less precise than NMFS guidelines 
recommend. 

[26] Scientists may use data sources––such as stranding data––that do 
not allow them to make statistically based estimates of total fishery-
related mortality. A stranded marine mammal is either dead and on the 
beach or shore, or in the water, or is alive and on the beach or shore 
but unable to return to the water under its own power. Information from 
such sources is anecdotal because it is not based on scientific 
sampling techniques that are used to make generalizable estimates. 

[27] According to NMFS officials, the National Observer Program uses 
the following categories to characterize the observer coverage level 
for fisheries: none, pilot, baseline, near-adequate, or adequate 
coverage. NMFS officials stated that the agency often chooses not to 
observe trap/pot fisheries because the nature of marine mammal 
interactions with this type of fishing gear make it unlikely that an 
observer would see any instances of incidental take. 

[28] NOAA Fisheries National Task Force for Improving Marine Mammal and 
Turtle Stock Assessments, A Requirements Plan for Improving the 
Understanding of the Status of U.S. Protected Marine Species. 

[29] The two take reduction teams no longer in existence were the 
Atlantic Offshore Cetacean and Mid-Atlantic take reduction teams. Some 
of the stocks covered by the Atlantic Offshore Cetacean team are now 
covered by the Pelagic Longline and Atlantic Trawl Gear teams. The Mid-
Atlantic take reduction team merged with the Gulf of Maine Harbor 
Porpoise team, and both teams covered the same stock of harbor 
porpoises. The merged team is now referred to by NMFS as the Harbor 
Porpoise team. 

[30] According to NMFS’s 2007 stock assessment reports. 

[31] In the Gulf of Mexico, the two strategic stocks are the Northern 
Gulf of Mexico coastal stock and the Gulf of Mexico bay, sound, and 
estuarine stock of bottlenose dolphins. In the waters off Alaska’s 
coast, the six strategic stocks are the Gulf of Alaska, Bering Sea, and 
Southeast Alaska stocks of harbor porpoises; the Western and Eastern 
U.S. stocks of Steller sea lions; and the Western North Pacific stock 
of humpback whales. 

[32] The Gulf of Mexico Gillnet fishery and the Gulf of Mexico Menhaden 
Purse Seine fishery. 

[33] Sperm whales meet the statutory requirements for establishing a 
team because they are strategic and interact with a Category I fishery, 
but this fishery is a Category I fishery because of its incidental take 
of other marine mammal stocks. 

[34] As explained in footnote 7, the Atlantic Trawl Gear team is not 
subject to the MMPA’s deadlines. 

[35] From 1996 to 2001, these whales were covered by a former take 
reduction team known as the Atlantic Offshore Cetacean team, but this 
team was disbanded in 2001 without the publication of a final take 
reduction plan. 

[36] According to the Federal Register notice announcing the 
establishment of the Mid-Atlantic take reduction team, the team was not 
established to address bottlenose dolphins. At preestablishment 
meetings, NMFS and the team determined that there was not enough 
information available about the bottlenose dolphins to implement a take 
reduction plan at that time and agreed to delay establishing a take 
reduction team and developing a take reduction plan specific to 
bottlenose dolphins until more information was obtained. However, the 
team provided NMFS with research and data recommendations that 
addressed bottlenose dolphins in its 1997 draft take reduction plan. 

[37] The three teams are the Atlantic Large Whale, Harbor Porpoise, and 
Pacific Offshore Cetacean. 

[38] Because the deadline for publication of the Pelagic Longline final 
plan occurred after we had concluded our audit work, we did not 
interview NMFS to ascertain the reasons for the delay. 

[39] For example, see GAO, The Results Act: An Evaluator’s Guide to 
Assessing Agency Annual Performance Plans, GAO/GGD-10.1.20 (Washington, 
D.C.: April 1998). 

[40] The long-term goal is also known as the zero mortality rate goal 
(ZMRG) or reducing incidental take to an insignificant level 
approaching a zero mortality and serious injury rate. The goal of 
commercial fisheries reducing mortality and serious injuries to 
insignificant levels approaching a zero mortality rate goal within 5 
years of a take reduction plan’s implementation must take “into account 
the economics of the fishery, the availability of existing technology, 
and existing state or regional fishery management plans.” The MMPA also 
has a deadline of April 30, 2001, for “commercial fisheries to reduce 
mortality and serious injuries to insignificant levels approaching a 
zero mortality rate goal.” The MMPA does not define ZMRG, but NMFS has 
defined “insignificance threshold” as the default target level of 
mortality and serious injury for all marine mammal stocks. Under NMFS’s 
regulation, take reduction plans and implementing regulations are the 
mechanisms that help Category I and II fisheries meet the 
insignificance threshold but these take reduction plans and regulations 
must take into account the fishery’s economics, availability of 
existing technology, and existing fishery management plans. 

[41] These are the California/Oregon/Washington stock of long-beaked 
common dolphins and what is now called the Gulf of Maine stock of 
humpback whales. 

[42] In some cases, strategic stocks could be meeting the goal of 
reducing fishery-related mortality to below the maximum removal level 
prior to implementation. Specifically, this might be the case for 
stocks that receive their strategic status determination through an ESA 
listing or designation as depleted under the MMPA. 

[43] While NMFS’s guidance provides that the long-term goal must take 
into account the economics of the fishery, the availability of existing 
technology, and existing state or regional fishery management plans, 
the agency has not specified how it considers these factors in 
establishing long-term goals for the current take reduction plans. 
Therefore we examined whether or not the long-term goals had been met 
by assessing whether fishery-related mortality was less than 10 percent 
of the maximum removal level. We used data from 2007 to measure whether 
the goals had been met rather than measuring 5 years after the 
implementation of each plan’s regulations in order to make general 
determinations about whether these goals are adequate measures of 
success. 

[44] These are the Western North Atlantic stock of fin whales and the 
Canadian East Coast stock of minke whales. NMFS told us that because 
minke whales are not a strategic stock, they are not relevant in 
assessing NMFS’s achievement of the long-term goal. However, the 
Atlantic Large Whale take reduction plan states that a goal of the plan 
is to reduce entanglement-related serious injury of minke whales to 
insignificant levels approaching zero mortality and serious injury 
rate. Thus, NMFS has stated its intent in the plan to achieve the long-
term goal for the minke whales. 

[45] The two stocks that had already met the short-term goal were the 
Western North Atlantic stock of fin whales and the 
California/Oregon/Washington stock of fin whales. The two stocks that 
had already met the long-term goal were the 
California/Oregon/Washington stock of fin whales and the 
California/Oregon/Washington stock of short-beaked common dolphins. 

[46] There are currently 13 stocks––10 strategic and 3 
nonstrategic––covered by take reduction regulations. According to the 
MMPA, as amended, the short-term goal is applicable only to strategic 
stocks. Under authority granted by the MMPA, NMFS may choose to 
establish teams for nonstrategic stocks, but these stocks are subject 
only to the long-term goal of reducing fishery-related mortality to 10 
percent of the maximum removal level. However, by definition, these 
stocks have already met the short-term goal. 

[47] Western North Atlantic coastal bottlenose dolphins are also 
strategic. We chose not to assess progress by the Bottlenose Dolphin 
take reduction team in meeting the goals due to the unique data 
collection system that NMFS uses for this team. Specifically, due to 
concerns about the stock definition for the Western North Atlantic 
coastal bottlenose dolphins covered by the Bottlenose Dolphin take 
reduction team, NMFS further divides this population into management 
units. NMFS identifies different fishery-related mortality estimates 
for each of these management units, but not for the Western North 
Atlantic coastal bottlenose dolphins as a whole, making it difficult to 
determine whether the total population met the short- and long-term 
goals. 

[48] The humpback whale is listed as an endangered species under the 
ESA and therefore is designated as strategic even though human-caused 
mortality was lower than the maximum removal level when the take 
reduction team was established. 

[49] Marjorie C. Rossman and Debra L. Palka, “A Review of Coastal 
Bottlenose Dolphin Bycatch Mortality Estimates in Relation to the 
Potential Effectiveness of the Proposed CBDTRP.” Northeast Fisheries 
Science Center Protected Species Branch (Woods Hole, Massachusetts: 
2004). 

[50] Office of Protected Resources, National Marine Fisheries Service, 
Harbor Porpoise Take Reduction Plan (HPTRP) Final Environmental 
Assessment and Final Regulatory Flexibility Analysis (Silver Spring, 
Maryland: 1998). 

[51] Fishery observer programs place individuals on commercial fishing 
vessels to observe operations, including documenting any instances of 
incidental take of marine mammals. 

[52] Debra Palka, “Effect of Pingers on Harbor Porpoise and Seal 
Bycatch.” Northeast Fisheries Science Center (Woods Hole, 
Massachusetts: 2007). 

[53] GAO, National Marine Fisheries Service: Improved Economic Analysis 
and Evaluation Strategies Needed for Proposed Changes to Atlantic Large 
Whale Protection Plan, [hyperlink, 
http://www.gao.gov/products/GAO-07-881] (Washington, D.C.: July 20, 
2007). 

[54] Maximum removal level is defined as the maximum number of 
animals––not including natural mortalities––that may be removed from a 
marine mammal stock while allowing that stock to reach or maintain its 
optimum sustainable population. 

[55] National Marine Fisheries Service, Guidelines for Preparing Stock 
Assessment Reports Pursuant to Section 117 of the Marine Mammal 
Protection Act: SAR Guidelines, June 2005 Revision. (Silver Spring, 
Maryland: June 2005), and NOAA Fisheries National Task Force for 
Improving Marine Mammal and Turtle Stock Assessments, A Requirements 
Plan for Improving the Understanding of the Status of U.S. Protected 
Marine Species. National Marine Fisheries Service, NOAA Technical 
Memorandum NMFS-F/SPO-63 (Silver Spring, Maryland: September 2004). 

[56] Three stocks, the Canadian East Coast stock of minke whales, the 
California/Oregon/Washington stock of northern right whale dolphins, 
and the California/Oregon/Washington stock of short-beaked common 
dolphins, were included in the teams even though they were not 
strategic when the teams were established. In accordance with the MMPA, 
only the long-term goal applies to these stocks, so we did not analyze 
whether these stocks had met the short-term goal. 

[End of section] 

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