National Marine Fisheries Service: Improved Economic Analysis and
Evaluation Strategies Needed for Proposed Changes to Atlantic	 
Large Whale Protection Plan (20-JUL-07, GAO-07-881).		 
                                                                 
The National Marine Fisheries Service (NMFS) developed the	 
Atlantic Large Whale Take Reduction (ALWTR) plan to protect	 
endangered large whales from entanglements in commercial fishing 
gear, which can cause injury or death. Because whales continued  
to die after the ALWTR plan went into effect, NMFS proposed	 
revisions in 2005. GAO was asked to review these proposed	 
revisions, including (1) their scientific basis and uncertainties
regarding their effectiveness, (2) NMFS's plans to address	 
concerns about the feasibility of implementing them, (3) the	 
extent to which NMFS fully assessed the costs to the fishing	 
industry and impacts on fishing communities, and (4) the extent  
to which NMFS developed strategies for fully evaluating their	 
effectiveness. GAO reviewed the proposed changes to the ALWTR	 
plan and obtained the views of NMFS officials, industry 	 
representatives, scientists, and conservationists.		 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-07-881 					        
    ACCNO:   A73011						        
  TITLE:     National Marine Fisheries Service: Improved Economic     
Analysis and Evaluation Strategies Needed for Proposed Changes to
Atlantic Large Whale Protection Plan				 
     DATE:   07/20/2007 
  SUBJECT:   Cost analysis					 
	     Data collection					 
	     Economic analysis					 
	     Endangered species 				 
	     Federal regulations				 
	     Fishing industry					 
	     Marine mammals					 
	     Program management 				 
	     Strategic planning 				 
	     Wildlife conservation				 
	     Wildlife management				 
	     Atlantic Large Whale Take Reduction plan		 

******************************************************************
** This file contains an ASCII representation of the text of a  **
** GAO Product.                                                 **
**                                                              **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced.  Tables are included, but    **
** may not resemble those in the printed version.               **
**                                                              **
** Please see the PDF (Portable Document Format) file, when     **
** available, for a complete electronic file of the printed     **
** document's contents.                                         **
**                                                              **
******************************************************************
GAO-07-881

   

     * [1]Results in Brief
     * [2]Background
     * [3]NMFS Based Proposed Gear Modifications on Scientific Researc

          * [4]NMFS Based Its Proposed Gear Modifications on Scientific Stu
          * [5]Uncertainties Exist Regarding the Extent to Which the Propos

     * [6]NMFS Has Not Resolved Potential Implementation Challenges wi
     * [7]NMFS Did Not Adequately Represent Uncertainties Associated W

          * [8]Significant Uncertainties Exist Regarding NMFS's Cost Estima
          * [9]NMFS Could Not Fully Assess the Impacts of the Proposed Chan

     * [10]NMFS Has Not Developed Strategies for Fully Evaluating the E

          * [11]Lack of Comprehensive Gear-Marking Requirements Could Hamper
          * [12]NMFS Lacks a Strategy for Assessing Industry Compliance with

     * [13]Conclusion
     * [14]Recommendations
     * [15]Agency Comments and Our Evaluation
     * [16]GAO Comments
     * [17]GAO Contact
     * [18]Staff Acknowledgments

          * [19]Order by Mail or Phone

Report to the Ranking Member, Subcommittee on Oceans, Atmosphere,
Fisheries and Coast Guard, Committee on Commerce, Science, and
Transportation, U.S. Senate

United States Government Accountability Office

GAO

July 2007

NATIONAL MARINE FISHERIES SERVICE

Improved Economic Analysis and Evaluation Strategies Needed for Proposed
Changes to Atlantic Large Whale Protection Plan

GAO-07-881

Contents

Letter 1

Results in Brief 5
Background 8
NMFS Based Proposed Gear Modifications on Scientific Research, but It
Cannot Estimate the Extent to Which Risks to Whales Will Be Reduced 15
NMFS Has Not Resolved Potential Implementation Challenges with Using
Modified Fishing Gear in Rocky Ocean Bottom Areas 21
NMFS Did Not Adequately Represent Uncertainties Associated With Proposed
Gear Modifications Cost and Could Not Fully Assess Impacts on Potentially
Affected Fishing Communities 25
NMFS Has Not Developed Strategies for Fully Evaluating the Effectiveness
of the Proposed Gear Modifications 31
Conclusion 35
Recommendations 36
Agency Comments and Our Evaluation 36
Appendix I Objectives, Scope, and Methodology 40
Appendix II Comments from the Department of Commerce 43
GAO Comments 49
Appendix III GAO Contact and Staff Acknowledgments 53

Table

Table 1: Number of Injuries and Mortalities to Large Whale Species and
Impact on Their Ability to Recover 16

Figure

Figure 1: Commercial Gear Configurations for Trap Fisheries 2

This is a work of the U.S. government and is not subject to copyright
protection in the United States. It may be reproduced and distributed in
its entirety without further permission from GAO. However, because this
work may contain copyrighted images or other material, permission from the
copyright holder may be necessary if you wish to reproduce this material
separately.

Abbreviations

ALWTR Atlantic Large Whale Take Reduction
DAM Dynamic Area Management
DEIS Draft Environmental Impact Statement
ESA Endangered Species Act
FEIS Final Environmental Impact Statement
MLA Maine Lobstermen's Association
MMPA Marine Mammal Protection Act
NMFS National Marine Fisheries Service
NOAA National Oceanic and Atmospheric Administration
SAM Seasonal Area Management

United States Government Accountability Office
Washington, DC 20548

July 20, 2007

The Honorable Olympia J. Snowe
Ranking Member, Subcommittee on Oceans, Atmosphere, Fisheries
  and Coast Guard
Committee on Commerce, Science, and Transportation United States Senate

Dear Senator Snowe:

Despite regulatory actions designed to ensure their safety and survival,
endangered large Atlantic whales continue to become entangled in
commercial fishing gear, sometimes resulting in death or severe injury.
Right, humpback, and fin whales are three species of Atlantic large whales
that are protected under the Endangered Species Act (ESA) and Marine
Mammal Protection Act (MMPA), under the administration of the National
Marine Fisheries Service (NMFS).1 NMFS is particularly concerned about the
North Atlantic right whale because scientists estimate that there are only
about 300 of these whales in existence. NMFS has determined that with a
population reduced to such a low number, the death or serious injury of
even one right whale from human-related causes, such as fishing gear
entanglement, would limit the ability of the species to recover.

Atlantic large whales are at risk of entanglement in fishing gear because
they feed, travel, and breed in areas where commercial fishermen leave
traps and gillnets.2 Fishermen set lobster and other traps either singly,
or in strings of multiple traps linked together with rope known as
groundline, as shown in figure 1. A buoy at the surface, which fishermen
use to locate their gear, is connected to a vertical rope linked to the
traps. Fishermen use the vertical rope to haul traps into their boats.
Gillnet fisheries, which catch fish such as sharks and groundfish, use
some of the same gear components, but use nets instead of traps.3

1This report addresses the western North Atlantic stock of right whales,
the Gulf of Maine stock of humpback whales, and the western North Atlantic
stock of fin whales. NMFS is an agency of the Department of Commerce's
National Oceanic and Atmospheric Administration.

2Traps are also referred to as pots.

Figure 1: Commercial Gear Configurations for Trap Fisheries

When whales become entangled in fishing gear, they can sometimes free
themselves without serious injury. However, in other cases, entanglement
can impede the whale's normal breathing and movement, causing it to drown.
Even if the whale is eventually able to break free, part of the gear may
remain attached to its body, sometimes making it more difficult to
breathe, feed, and travel, and possibly leading to an early death.

3There are many different types of bottom-dwelling Atlantic groundfish,
including haddock, cod, and various flounder.

In 1997, under the MMPA, NMFS developed the Atlantic Large Whale Take
Reduction (ALWTR) Plan to reduce the risk of serious injury and mortality
to right, humpback, and fin whales from entanglement in commercial fishing
gear.4 This plan included several gear modifications that apply to lobster
and certain gillnet fisheries--such as prohibiting floating vertical line
at the surface--as well as season-specific requirements that are in effect
when whales are expected in certain areas. Due to the continued serious
injury and mortality of large whales after the ALWTR plan was implemented,
NMFS established additional measures. For example, in 2002, NMFS
established measures (1) restricting commercial fishing gear in areas
where right whales are known to feed and (2) allowing the agency to
temporarily restrict or prohibit gear in specific areas of the north
Atlantic if three or more right whales were observed within 75 square
nautical miles.

Despite NMFS's efforts, whale entanglements and deaths continued. At the
end of 2002, NMFS determined, after an independent peer review, that a
right whale had been entangled in gear consistent with U.S. fishing gear.
Due to this and other fatal and nonfatal entanglements of right, humpback
and fin whales, NMFS filed a notice of intent in the June 30, 2003,
Federal Register that it planned to prepare an environmental impact
statement to analyze the impacts of revising the ALWTR plan and stated
that it would hold meetings with stakeholders to collect information on
strategies to reduce whale entanglements. Between 2003 and 2004, after the
stakeholder meetings, the agency developed proposed modifications to the
ALWTR plan and conducted an analysis on the effects these modifications
would have on whales, the fishing industry, and fishing communities. In
February 2005, the agency issued a draft environmental impact statement
(DEIS) that identified six alternative sets of proposed modifications to
the existing ALWTR plan.5 NMFS designated two of these as "preferred"
alternatives with the goal of selecting one in the final environmental
impact statement. The preferred alternatives outlined a broader approach
to whale protection by incorporating additional fisheries into the ALWTR
plan and requiring year-round and seasonal gear modifications in the North
Atlantic. One of the key proposed changes requires fishermen to replace
floating groundline, which creates arcs in the water that can entangle
whales, with sinking groundline, which lies on the ocean bottom.6 However,
there are concerns that the cost of the gear modifications, particularly
sinking groundline, may threaten the livelihood of fishermen, especially
lobstermen. In the DEIS, NMFS estimated that the total cost to the fishing
industry would be about $14 million annually and that the lobster industry
would incur more than $12.8 million of these projected costs.

4In this report, we will refer to the Atlantic Large Whale Take Reduction
Plan as the ALWTR plan.

5NMFS. Draft Environmental Impact Statement for Amending the Atlantic
Large Whale Take Reduction Plan: Broad-Based Gear Modifications.
(Washington, D.C.: February 2005).

In June 2005, NMFS published a proposed rule to amend the regulations
implementing the ALWTR plan.7 In February 2007, after an interagency
review, NMFS withdrew the rule. According to a NMFS official, the
interagency review raised concerns that NMFS had not fully addressed
issues raised by the state of Maine and the Maine lobster industry, such
as which areas along the Maine coast should be exempt from the proposed
gear modifications. NMFS is currently reevaluating the proposed regulation
to determine if any revisions are needed. The agency hopes to complete its
review and have a final regulation in place by year-end 2007. In the
meantime, the current regulations remain in effect, and endangered large
whales continue to be at risk of entanglement in commercial fishing gear.

Since NMFS has not issued a final environmental impact statement or
regulation, you asked us to review the proposed changes to the ALWTR plan
outlined in the DEIS. Specifically, you asked us to (1) describe the
scientific basis for the proposed changes to the ALWTR plan and the extent
to which uncertainties exist regarding how effectively they will protect
large whales; (2) describe how the agency plans to address implementation
issues, particularly in the rocky bottom areas of the North Atlantic
coast; (3) evaluate the extent to which NMFS fully assessed costs to the
fishing industry and the economic impacts on fishing communities; and (4)
evaluate the extent to which NMFS has developed strategies for fully
assessing the effectiveness of and industry compliance with the proposed
changes.

6Sinking groundline is also referred to as neutrally buoyant groundline.

770 Fed. Reg. 35893 (June 21, 2005).

To address our objectives, we reviewed the DEIS, public comments on the
DEIS, and scientific literature on right, humpback, and fin whales. We
also obtained the views of a wide range of stakeholders on the proposed
changes to the ALWTR plan, such as marine mammal scientists, including
those at the Woods Hole Oceanographic Institution and the Provincetown
Center for Coastal Studies;8 federal regulators, including officials at
NMFS's Northeast Regional Office who participated in developing the
proposed changes to the plan; state fisheries management officials in
Maine and Massachusetts; industry groups, including the Maine Lobstermen's
Association; a conservation group, the Humane Society of the United
States; and the Marine Mammal Commission, an independent U.S. agency
responsible for providing oversight of the marine mammal conservation
policies and programs carried out by federal regulatory agencies. We also
met with officials from Industrial Economics Inc., who conducted the
economic analysis for NMFS that was included in the DEIS. Finally, we
reviewed documentation of federal and state compliance efforts related to
the current ALWTR plan. A more detailed description of our scope and
methodology is presented in appendix I. We performed our work between
August 2006 and June 2007 in accordance with generally accepted government
auditing standards.

Results in Brief

NMFS based its proposed changes to the ALWTR plan on scientific research
that indicated that whales are becoming entangled in commercial fishing
gear and that sinking groundline will almost certainly reduce
entanglements; however, the agency cannot determine the overall extent to
which the proposed gear modifications will reduce serious injury or
mortality to whales. To support the need for the proposed changes to the
ALWTR plan, NMFS used its scientific stock assessments and entanglement
reports, which showed that--despite current regulatory measures--right and
humpback whales are being seriously injured or killed by entanglements in
commercial fishing gear at a rate that limits the species' ability to
recover. NMFS also relied on scientific research that showed that about
three-quarters of the right whale population and one-half of the humpback
whale population had scars caused by entanglement with commercial fishing
gear. NMFS developed the specific proposed gear modifications based, in
part, on a study of gear found on entangled right and humpback whales that
indicated that all parts of commercial fishing gear create a risk of
entanglement for these whales. However, the study did not provide
information regarding the extent to which each component of fishing gear
poses a risk to whales. Therefore, NMFS could not estimate how many fewer
serious injuries and mortalities will occur as a result of its proposed
changes. While scientists believe that sinking groundline--one of the key
features of the proposal--will reduce risks to whales, they are uncertain
if it will eliminate all serious injuries or mortalities from
entanglements in groundline. In addition, the study of gear found on
entangled right and humpback whales indicated that other parts of the
gear, including vertical line, also posed an entanglement risk. Although
NMFS has taken some actions to mitigate this risk, such as implementing
weak link requirements, the agency acknowledges that more needs to be
done, and it plans to further address vertical line in the future.

8NMFS has authorized the Provincetown Center for Coastal Studies as the
lead organization on the east coast to disentangle large whales.

NMFS has not resolved challenges associated with implementing the proposed
fishing gear modifications in the rocky bottom areas of the North Atlantic
coast. NMFS maintains that it is operationally feasible to use sinking
groundline in all areas, but the agency told us that fishermen may have to
modify their fishing practices. For example, fishermen may need to modify
the way they retrieve their gear so that sinking groundline does not
become caught on rocks, causing gear loss. However, Maine lobster
fishermen contend that it is not operationally feasible for them to use
sinking groundline in rocky bottom areas because the rocks will cause
abrasion--wearing away or weakening the rope--which could require them to
replace their rope too frequently or cause gear loss. Fishermen are also
concerned that sinking groundline poses safety risks to them. For example,
if sinking groundline abrades along the rocky bottom and breaks when
fishermen retrieve their gear, the line could strike and injure them. A
NMFS official maintained that fishermen need to be vigilant about the
condition of their rope--whether it is floating groundline or sinking
groundline--and replace it, as needed, to reduce the risk of injury and
avoid gear loss. In January 2007, the Maine Department of Marine Resources
submitted a proposal to NMFS that would allow fishermen to use
"low-profile" groundline--a rope that floats on average about 3 feet above
the ocean bottom--as an alternative to the use of sinking groundline along
rocky bottom areas of Maine's coast. The state believes low-profile
groundline will both benefit the lobster industry and protect whales. NMFS
and the scientists with whom we spoke are unsure if low-profile groundline
will reduce the risk of whale entanglement because it could form an arc
similar to that of floating groundline creating an entanglement risk for
large whales.

NMFS's economic assessment of the proposed fishing gear modifications did
not (1) adequately represent the uncertainties of its cost estimates,
which could result in higher or lower costs to the fishing industry than
reported in the DEIS and (2) fully assess the impacts of the increased
costs on affected fishing communities. NMFS included key variables, such
as the cost of rope replacement and expected increases in gear loss, in
its estimate of the costs of the proposed changes on the fishing industry.
However, NMFS did not have verifiable data to estimate the costs of these
variables. For example, NMFS's estimates of the costs of gear loss were
based on expert opinions, not on data that had been verified through field
testing. The use of estimates and lack of verifiable data introduced a
significant amount of uncertainty into NMFS's calculations of the cost of
the proposed gear modifications on fishermen. Although the agency
acknowledged these uncertainties in the DEIS, it produced a single
estimate of compliance costs--about $14 million annually, most of which
would be incurred by the lobster industry--rather than a range of possible
costs. Presenting a range of costs would have better represented the
significant uncertainty that exists in NMFS's estimate and would have
better demonstrated the extent to which total costs to fishermen and the
fishing industry could be different than what NMFS estimated. In addition,
because NMFS did not have data on fishermen's ability to absorb the costs
of the proposed gear modifications, the agency used revenue estimates and
made arbitrary assumptions to estimate the number of fisherman that would
go out of business because of the increased costs. However, because
fishermen's revenues and their ability to absorb additional costs could be
noticeably different than what NMFS assumed, the number of fisherman that
would go out of business could be lower or higher than NMFS estimated.
Furthermore, because NMFS lacked information about which specific
fishermen, living in which communities, would go out of business, it could
not identify exactly which communities would lose jobs or determine the
impact any lost jobs and income would have on these fishing communities.

NMFS has not developed strategies for fully evaluating the effectiveness
of the proposed regulatory changes. Specifically, NMFS could require
comprehensive markings on commercial fishing gear that would enable
researchers to assess the type of rope involved in entanglements. Although
NMFS's proposed modifications to the ALWTR plan include new gear marking
requirements--such as marking vertical lines--it has not proposed marking
sinking groundline because it believes that the use of sinking groundline
will be completely effective in protecting whales. However, scientists
with whom we spoke, including NMFS's scientists, said that while they
believe sinking groundline will reduce risk of whale entanglements, they
also believe its success cannot be guaranteed; and therefore, it should be
marked so that its performance can be evaluated. To assess the
effectiveness of its proposed regulatory requirements, NMFS also needs to
be able to determine whether any future entanglements are due to
noncompliance by industry with the regulatory requirements or the
ineffectiveness of the gear modifications. However, NMFS has not yet
developed a strategy for monitoring the level of industry compliance.

Given the need to fully disclose the potential cost burden on fishermen
and to assess the proposed measures to protect endangered large whales, we
are recommending that when NMFS finalizes the proposed changes to the
ALWTR plan it revises its economic analysis to present a range of possible
costs, expands its proposed gear-marking requirements, and develops a
strategy to assess industry compliance. In commenting on a draft of the
report, the National Oceanic and Atmospheric Administration (NOAA) did not
agree with our first two recommendations but did agree to develop a
strategy for assessing industry compliance. NOAA believes that the
uncertainty of the data was adequately represented in the DEIS and
therefore did not agree that the agency needs to present a range of
possible costs in its final economic analysis. Nonetheless, NOAA said that
it is planning to clarify the variations and uncertainties within its
analysis in the Final Environmental Impact Statement. With regard to our
recommendation on markings for sinking groundline and gear in exempted
areas, NOAA stated that such markings are not feasible or practical at
this time. It is unclear to us why NOAA would make such a statement given
that in the DEIS, NMFS has proposed similar marking requirements for
vertical line. Although NOAA agreed with our recommendation to develop a
strategy for assessing industry compliance with the gear modification
requirements, it did not believe that the recommendation could be
implemented before NMFS finalizes the proposed regulations. We believe
that if NOAA is unable to complete its strategy prior to finalizing its
proposed regulations, the strategy should be in place by the effective
date of the final regulations. The full text of NOAA's comments and our
responses appears in appendix II.

Background

Right, humpback, and fin whales were hunted by commercial whalers. The
right whale, in particular, was targeted by whalers because it is a
slow-moving animal that floats when it is killed, due to its high blubber
content. Accordingly, whalers gave the right whale its name because it was
the "right" whale to hunt. In 1949, the International Convention for the
Regulation of Whaling protected right whales from commercial whaling. In
1970, the species was listed as endangered under the Endangered Species
Conservation Act, the precursor to the ESA. Right whales were subsequently
listed as endangered under the ESA in 1973. Despite several decades of
conservation efforts, the right whale has struggled to recover due to low
reproductive rates and accidental human-caused mortality. The North
Atlantic right whale is among the most endangered large whale species in
the world. A 1999 study estimated that the species will be extinct within
200 years if mortality rates continue.9 Humpback and fin whales were
hunted for oil, meat, and materials for utilitarian products (e.g., corset
stays, umbrella ribs, buggy whips, etc.) until the 20th century. The
International Whaling Commission banned commercial whaling of North
Atlantic humpback whales in 1955. Commercial whaling of the fin whale was
banned in the North Atlantic in 1987.10 Both humpback and fin whales have
been listed as endangered under the ESA since its passage in 1973.

Atlantic large whales are at risk for entanglement in commercial fishing
gear when they are traveling, feeding, and breeding. For example, right
whales feed with their mouths open for extended periods of time using
their baleen--a substance that grows in comb-like rows from the upper jaws
of toothless whales--to filter plankton from seawater. Much about the
movements and habitats of right whales remains unknown. However, it is
generally thought that some right whales winter in the lower
latitudes--off the southeast U.S. Atlantic coast, where calving takes
place--then migrate to higher latitudes, near Massachusetts and Maine for
the summer, following concentrations of copepods, their principal food
source.11 Right whales primarily use the mid-Atlantic region to migrate to
and from the calving grounds in the south. Like right whales, humpback
whales also feed off the coasts of Massachusetts and Maine, however, they
winter farther south. Humpback whales employ a variety of feeding
techniques that differ from right whale feeding techniques. For example,
one way that humpback whales feed is by lunging into a patch of small fish
with their mouth wide-open for a short period of time. Like right and
humpback whales, scientists believe that fin whales use northern waters
primarily for feeding and southern waters primarily for calving. Fin
whales also engage in lunge feeding.

9Caswell, H.; Fujiwara, M.; Brault, S. "Declining survival threatens the
North Atlantic right whale," Proceedings of the National Academy of
Sciences, vol. 96, no. 6 (1999).

10Fin whales were rarely hunted in U.S. waters, except near the shores of
Provincetown, Massachusetts in the late 1800s.

11Copepods are small crustaceans.

Under the MMPA, NMFS must develop a plan to protect Atlantic large whales
from entanglements that cause serious injury or mortality.12 The MMPA was
enacted in 1972 to provide protection for all marine mammals. Section 118,
enacted in the 1994 amendments to the MMPA, specifically outlines a
process for reducing serious injury and mortality incidental to commercial
fishing operations.13 Under that process, if NMFS determines that a
species' ability to recover has become diminished by commercial fishing
activities, the agency must develop and implement a plan--known as a take
reduction plan14--to reduce serious injury and mortality to the species.
The MMPA requires a take reduction team to be involved in developing a
take reduction plan. Members of the team are required to have either
biological/conservation expertise relevant to the marine mammal species
addressed in the take reduction plan or the fishing practices that result
in the incidental mortality and serious injury of the species. Team
members must include representatives of federal agencies, state agencies,
Regional Fishery Management Councils,15 interstate fishery commissions,
academic and scientific organizations, environmental groups, and fishery
groups that use gear that could harm the species.

The immediate goal of a take reduction plan is to reduce, within 6 months,
mortality and serious injury below the potential biological removal
level--meaning the maximum number of human-related mortalities that can
occur annually without limiting the species' ability to recover.16 The
long-term goal of a take reduction plan is to, within 5 years, reduce
fishery-related mortality and serious injury to insignificant levels
approaching zero.17 The take reduction plan must include recommended
regulatory and voluntary measures aimed at reducing mortality and serious
injury, such as requiring the use of alternative commercial fishing gear
or techniques.

12NOAA delegated its MMPA responsibilities to NMFS.

1316 U.S.C. S 1387.

14As defined in the MMPA, the term "take" means to harass, hunt, capture,
or kill or to attempt to harass, hunt, capture or kill a marine mammal. 16
U.S.C. S 1362(13). Take reduction plans must be developed to mitigate the
effects of Category I and II fisheries, defined as fisheries that have
frequent incidental mortality and serious injury of marine mammals
(Category I) and fisheries that have occasional incidental mortality and
serious injury of marine mammals (Category II). 16 U.S.C. S 1387(c)(1)(A).

15The Magnuson Fishery Conservation and Management Act of 1976 (since
renamed the Magnuson-Stevens Act) created eight regional councils to
manage fishery resources within federal waters (from 3 to 200 miles off
the coast).

16As defined in the MMPA, potential biological removal is the maximum
number of animals, not including natural mortalities that may be removed
from a marine mammal stock annually while allowing that stock to reach or
maintain its optimal sustainable population.

The current ALWTR plan, originally developed in 1997, includes both
universal gear modifications that apply to all lobster traps and anchored
gillnets as well as area- and season-specific requirements. The universal
requirements prohibit floating vertical line at the surface, require gear
to be hauled out of the water at least once every 30 days, and encourage
fishermen to maintain knot-free vertical lines. In particular areas, such
as Cape Cod Bay, fishermen are required to use sinking groundline, which
poses less of an entanglement risk because it sinks to the ocean floor
rather than creating loops in the water. Fishermen in certain areas are
also required to attach weak links--devices that are designed to break if
a particular amount of pressure is applied--to their vertical lines or
gillnet panels and place marks on their gear so researchers may be able to
identify the fishery involved and the location where the gear was set if
it is later recovered from an entangled whale. In addition, certain
restricted areas are closed to lobster trap fishing or anchored
gillnetting during particular seasons when whales are likely to be in the
area. When these areas are open, fishermen are limited to using gear that
meets particular requirements, such as weak links.

While NMFS has developed the ALWTR plan pursuant to its responsibilities
under the MMPA, NMFS also has responsibilities under the ESA. The ESA
directs all federal agencies to utilize their authorities to conserve
threatened and endangered species. In addition, such species and their
habitats must be protected against adverse effects of federal activities
such as operating hydroelectric dams, thinning vegetation to prevent
wildfires, and--as in this case--permitting fishing, so that the continued
existence of protected species is not jeopardized. The right, humpback,
and fin whale species are all listed as endangered under the ESA. Section
7 of the ESA directs federal agencies that are taking actions that may
affect protected species--referred to as action agencies--to initiate a
"consultation" to assess the impacts of their actions on threatened and
endangered species. Federal action agencies consult with either NMFS or
the U.S. Fish and Wildlife Service within the Department of the Interior,
depending on which species their actions may affect.18 These agencies are
referred to as the consulting agencies. For example, because NMFS
regulates commercial fishing and the activities of the fishing industry
have seriously injured or killed endangered whales, NMFS must consult on
its proposed fishery regulation that may affect endangered whales.
Consequently, in this case, NMFS acts as both the action agency and the
consulting agency. Action agencies submit biological assessments to the
consulting agencies that discuss their proposed activities and their
likely effects on protected species and their habitat. The consulting
agency completes the formal consultation process by issuing a biological
opinion. If the consulting agency concludes that the proposed activities
are likely to jeopardize the species' continued existence or adversely
modify its habitat, the biological opinion will include reasonable and
prudent alternatives that are necessary or appropriate to minimize impacts
to protected species. If any "take" of a species is expected to occur, the
biological opinion also must contain terms and conditions designed to
reduce take and address adverse modification of designated critical
habitat. For example, NMFS has prepared biological opinions to assess the
impact of continuing to permit the multispecies, spiny dogfish, monkfish,
and lobster fisheries on protected marine species.19 In the most recent
opinion, NMFS identified the fishing gear modifications contained in the
ALWTR plan as a reasonable and prudent alternative to protect right whales
from fishing gear entanglements.

17The MMPA does not define "insignificant" mortality and serious injury
rates approaching zero. NMFS has established a "zero mortality rate goal"
as no more than 10 percent of the potential biological removal level for
each stock.

In 2000, after new whale entanglements caused serious injuries to right
whales, as well as at least one right whale fatality in gillnet gear, NMFS
reinitiated a section 7 consultation for the multispecies, spiny dogfish,
monkfish, and lobster fisheries. NMFS's biological opinion found that its
administration of these fisheries was likely to jeopardize the continued
existence of the right whale. Consequently, NMFS developed the Seasonal
Area Management (SAM) and Dynamic Area Management (DAM) programs as
reasonable and prudent alternatives to avoid further jeopardizing the
existence of the right whale. The SAM program imposes seasonal
restrictions on lobster and gillnet fishermen to protect predictable
aggregations of right whales that annually feed in waters north and east
of Cape Cod. Gear set in the SAM zone during designated times must be
low-risk gear, which is defined as gear that is highly unlikely to cause
death or serious injury to large whales. For example, lobster and gillnet
fishermen are prohibited from using floating groundline in the western
part of the SAM area from March 1 to April 30 and in the eastern part of
the SAM area from May 1 to July 31, when whales are expected to be in the
area. The DAM program, on the other hand, requires temporary gear
restrictions in areas that experience an unexpected aggregation of right
whales. If three or more right whales are spotted within 75 square
nautical miles, NMFS can restrict fishing by taking one or all of the
following actions: (1) requiring lobster and gillnet fishermen to remove
their gear and prohibiting them from setting additional gear within the
area, (2) limiting the type of gear that can be used in the area, or (3)
encouraging fishermen to voluntarily stop fishing and remove their gear
from the area. DAM zone restrictions remain in effect for 15 days and can
be extended if three right whales continue to be sighted in the area
within 75 nautical miles of each other.

18The Department of Interior administers the ESA for freshwater and land
species and the Department of Commerce through NMFS administers the act
for marine species.

19A fisherman with a multispecies permit is able to target more than one
species of groundfish, such as haddock, yellowtail flounder, winter
flounder, Atlantic cod, white hake, and American plaice.

Because whale entanglements that led to serious injury or mortality
continued to occur after the SAM and DAM programs went into effect, in
2003, NMFS began a process of revising the ALWTR plan to require
additional fishing gear modifications that apply to trap and gillnet
fisheries throughout the U.S. Atlantic coast. These fisheries were
selected because gear associated with them was found on entangled whales.
In February 2005, NMFS issued a draft environmental impact statement under
the National Environmental Policy Act that outlined its proposed
regulatory changes to the ALWTR plan and the associated costs and impacts
to those affected by the regulation. The DEIS identified six regulatory
alternatives, two of which were identified as preferred alternatives. Some
of the elements of the proposed changes were to (1) replace floating
groundline with sinking groundline, (2) alter the requirements for weak
links, and (3) change the gear marking requirements. Regarding weak links,
NMFS proposed that lobster and other trap fisheries in some areas be
required to use weak links of a lower breaking strength--making it easier
for whales to break them--and that gillnet fisheries in some areas be
required to use more weak links per net panel than called for in the
current requirements. Regarding gear marking, NMFS proposed expanding the
frequency of gear marking to one 4-inch mark every 60 feet on the vertical
line, among other things.

NMFS also proposed applying these gear modifications more broadly than
previous regulations. First, NMFS proposed incorporating additional trap
and gillnet fisheries in to the ALWTR plan because these fisheries also
use gear that poses a risk to whales.20 Second, NMFS proposed year-round
gear modifications in the North Atlantic, because whales are always
present there, and seasonal gear modifications in the Mid-Atlantic and the
South Atlantic regions at times when right, humpback, and fin whales
sightings primarily occur.

In anticipation of increased gear costs to fishermen as a result of the
proposed gear modifications, NMFS and nonprofit organizations have
provided funding for fishermen to make initial replacements of floating
groundline with sinking groundline. NMFS officials told us the agency
recently funded a $600,000 rope buyback and recycling program for the
Mid-Atlantic trap fishermen. NMFS officials also told us that the agency
recently provided $2 million to the Gulf of Maine Lobster Foundation to
fund a rope buyback program to assist Maine lobster fishermen. The
foundation began disbursing the funds to fishermen in May 2007. In
addition, NMFS officials told us the agency provided $660,000 to the
International Fund for Animal Welfare, which matched the federal funding,
to finance a Massachusetts rope buyback and recycling program for the
lobster industry.

While fishing gear entanglement is a significant source of risk for
Atlantic large whales, so are collisions with ships. For example, from
2000 to 2004, NMFS reported that one right whale and 0.6 humpback whale
serious injuries or mortalities per year were attributable to collisions
with ships in U.S. waters.21 NMFS has proposed a regulation to reduce the
risk of ship strikes to North Atlantic right whales, which would restrict
ship speed along certain areas of the east coast during certain times of
the year. NMFS expects to issue the regulation in 2007. In addition to
this regulation, NMFS has also recommended changes to shipping routes off
four major ports where high densities of ships and right whales overlap.

20Additional fisheries include black sea bass, scup, conch/whelk, shrimp,
red crab, hagfish, Jonah crab, Northeast driftnet and Northeast anchored
float gillnet.

21Waring, G.T; Josephson, E.; Fairfied, C.P.; Maze-Foley, K. U.S. Atlantic
and Gulf of Mexico Marine Mammal Stock Assessments--2006. (Woods Hole, MA:
2007).

NMFS Based Proposed Gear Modifications on Scientific Research, but It Cannot
Estimate the Extent to Which Risks to Whales Will Be Reduced

Based on its scientific stock assessments of whale populations, NMFS
determined that right and humpback whales are being seriously injured or
killed at a rate that limits the species' ability to recover. NMFS also
analyzed scientific data on whale entanglements, scarification caused by
entanglement, and sightings, which supported the need to propose changes
to the ALWTR plan. These data indicate that whales travel widely up and
down the Atlantic coast and encounter and become entangled in commercial
fishing gear. NMFS then developed the specific proposed gear modifications
based, in part, on a study of the gear involved in entanglements of right
and humpback whales that indicated that all parts of commercial fishing
gear pose a risk to whales. While there is general agreement among
scientists, conservationists, federal and state regulators, and industry
groups that requiring certain commercial fisheries to use sinking
groundline--one of the key features of NMFS's proposed modifications to
the ALWTR plan--will reduce risks to whales, uncertainties remain
regarding how many fewer serious injuries and mortalities will occur.
There is also uncertainty over whether other proposed changes to the ALWTR
plan will effectively protect large whales.

NMFS Based Its Proposed Gear Modifications on Scientific Studies of Whale
Entanglement, Scarification, and Sightings

To support the need to propose changes to the ALWTR plan, NMFS used its
annual stock assessment reports of endangered large whale populations and
entanglement reports, which showed that--despite current regulatory
measures--right and humpback whales were being seriously injured or killed
by entanglements in commercial gear at a rate that limits the species'
ability to recover to their maximum sustainable population.22 In the 2003
stock assessment report, the agency determined--based on the size of the
right whale population--that the maximum annual number of human-related
mortalities that can occur without limiting the species' ability to
recover is zero.23 However, this stock assessment report showed that from
1997 to 2001, there were about 1.2 documented serious injuries and
mortalities annually to right whales from fishing-gear entanglements.24
The 2003 stock assessment report also indicated that humpback whales were
being seriously injured or killed from fishing-gear entanglements at a
rate that limits the species' ability to recover. The most recent stock
assessment report (2006) indicates that right and humpback continue to be
seriously injured or killed from fishing-gear entanglements at a rate that
limits their ability to recover.25 In contrast, NMFS determined that fin
whales are not being seriously injured or killed at a rate that limits
their ability to recover based on their population size and the number of
serious injuries and mortalities that occur annually. Table 1 shows the
data that NMFS used to assess the ability of the three species to recover
based on their population size and the number of annual serious injuries
and mortalities from entanglements.

22The stock assessment report uses the term "potential biological removal"
to refer to the maximum number of human-related mortalities that can occur
annually while allowing a stock to reach or maintain its optimum
sustainable population.

23Waring, G.T; Pace, R.M.; Quintal, J.M.; Fairfied, C.P.; Maze-Foley, K.
U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessments--2003.
(Woods Hole, MA: 2004).

24NMFS is required under the MMPA to prepare stock assessment reports of
marine mammals, including large whales, in order to monitor their
population status. 16 U.S.C. S 1386.

Table 1: Number of Injuries and Mortalities to Large Whale Species and
Impact on Their Ability to Recover

                                                            Maximum number to 
                                  Average number of serious     deaths before 
                               injuries and mortalities due limiting species' 
Large whale       Estimated     to entanglement annually        ability to 
species     population size                 (1997-2001)a           recover 
Right                   291                          1.2                 0 
Humpback         647 to 902                          2.2               1.3 
Fin          2,362 to 2,814                          0.6               4.7 

Source: NMFS data.

aThese data include whales found in Canadian waters.

However, NMFS's annual stock assessment reports are likely to understate
the full extent of whale entanglements in commercial fishing gear, as the
reports only include confirmed entanglements in commercial fishing gear
that have caused serious injury or mortality to whales. Additional serious
entanglements may occur, but either because researchers do not recover the
corpses or there is not enough evidence to determine that entanglement in
commercial fishing gear caused the whales' deaths, these incidents are not
captured in the stock assessment reports. A NMFS scientist with whom we
spoke believes that it is likely that the agency documents only a small to
modest fraction of large whale entanglements that result in serious injury
or mortality. Although NMFS's stock assessment reports include data on
seriously injured or dead whales found in Canadian waters, whether these
whales were entangled in U.S. or Canadian gear is generally not known.26

25Waring, G.T; Josephson, E.; Fairfied, C.P.; Maze-Foley, K. U.S. Atlantic
and Gulf of Mexico Marine Mammal Stock Assessments--2006. (Woods Hole, MA:
2007).

In addition to the serious injuries and mortalities from entanglements
documented in NMFS's stock assessment reports, NMFS also used information
from scarification studies developed by various scientific institutions to
demonstrate a need to revise the ALWTR plan. These studies analyzed the
rate of scarring on large whales due to entanglement in fishing
rope--thereby identifying the percentage of the right and humpback whale
populations that experience entanglement. For these studies researchers
identified individual whales using a photographic database and determined
the percent that have physical evidence indicative of entanglement.27 For
example, in a 2005 report, researchers from the New England Aquarium found
that approximately 75 percent of right whales had scars indicating that
they had survived an entanglement in fishing rope.28 Similarly, a 2004
report by scientists at the Provincetown Center for Coastal Studies found
that approximately half of the humpback whale population also had
entanglement scars.29 However, according to a scientist with whom we
spoke, these scarification studies may actually underestimate the
percentage of whales that have experienced entanglement because whales
that die of entanglement may not be found; researchers only count scars
that they believe, based on their professional judgment, are highly likely
to be from entanglement in fishing gear; and some scars may fade over
time.

26While NMFS can develop regulations in response to recovering gear of
unknown origin from entangled whales, according to a NMFS official, all
the regulatory actions the agency has taken in the past have been in
response to entanglements in U.S. gear, or gear consistent with U.S.
fisheries.

27The New England Aquarium maintains a photo identification database,
funded by NMFS, which includes all known photographed sightings of right
whales since 1935. NMFS's aerial surveys, research groups, whale watch
vessels, and others have contributed to the database.

28Knowlton, A.R.; Marx, M.K.; Pettis, H.M.; Hamilton, P.K.; Kraus, S.D.
Analysis of Scarring on North Atlantic Right Whales (Eubaleana glacialis):
Monitoring Rates of Entanglement Interaction 1980-2002. Final report to
NMFS submitted by The New England Aquarium (2005).

29Robbins, J. and Mattila, D. Estimating Humpback Whale (Megaptera
novaeangliae) Entanglement Rates on the Basis of Scar Evidence. Report to
the Northeast Fisheries Science Center submitted by The Center for Coastal
Studies (2004).

To determine the specific gear-modification requirements to be included in
the revised ALWTR plan, NMFS relied, in part, on a study of the fishing
gear found on entangled right and humpback whales conducted by NMFS
researchers and gear specialists as well as researchers from the
Provincetown Center for Coastal Studies and the New England Aquarium.30
This study found that any fishing rope from trap and gillnet fisheries
presents an entanglement risk to large whales because all parts of the
rope, such as vertical line and groundline, have been found on entangled
whales.31

To determine when and where to implement the proposed gear modifications,
NMFS used data from the North Atlantic Right Whale Sightings Database,
supplemented by additional data on humpback and fin whale sightings.32
Using these data, researchers can identify where large whales are at risk
of entanglement based on where they congregate during certain times of the
year. For example, NMFS determined that right and humpback whales are
sighted in the South Atlantic region from late November through early
April, but are typically not present there the rest of the year. NMFS
acknowledges that large whales can be found throughout the year in the
Mid-Atlantic but notes that sightings occur primarily between September
and May. As a result, in its preferred alternatives, the agency proposed
seasonal, as opposed to year-round, gear modifications in the Mid- and
South Atlantic. NMFS also used the sightings data to modify the exempted
areas--those areas where commercial fishermen are not subject to the gear
modifications outlined in the ALWTR plan because whales rarely, if ever,
venture there.

30When whales are discovered entangled, NMFS sends a team that may attempt
to disentangle the whale, depending on the nature of the entanglement. The
team attempts to obtain information about the gear involved in the
entanglement, such as whether it is vertical line or groundline.

31Johnson, A.; Salvador, G.; Kenney, J.; Robbins, J.; Kraus, S.; Landry,
S.; Clapham, P. "Fishing Gear Involved in Entanglements of Right and
Humpback Whales," Marine Mammal Science, vol. 21, no. 4, (2005).

32The North Atlantic Right Whale Consortium Sighting Database, maintained
by the University of Rhode Island, includes sightings from NMFS's aerial
survey as well as other sightings along the eastern seaboard. It does not
include photographs, like the database maintained by the New England
Aquarium, as researchers and others are not able to photograph each whale
that is spotted.

Uncertainties Exist Regarding the Extent to Which the Proposed Gear
Modifications Will Protect Large Whales

There is general agreement among scientists, conservationists, federal and
state regulators, and industry groups that requiring the use of sinking
groundline will reduce risks to whales. However, uncertainties remain
regarding how many fewer serious injuries and mortalities will occur. NMFS
was unable to quantify how much the risk of whale entanglement will be
reduced by sinking groundline because researchers cannot quantify the
extent to which each component of fishing gear poses a risk to whales. In
addition, the scientists with whom we spoke stated that the proposed
modifications to the ALWTR plan will not eliminate all entanglements
because NMFS has not fully addressed the risks posed by vertical line.
Although NMFS has taken some actions to mitigate the risk associated with
vertical line, the agency recognizes that more needs to be done because
whales continue to become entangled in this line. The agency stated that
it will further address vertical line after conducting additional research
and consulting with the ALWTR Team.

The scientists and conservationists with whom we spoke or who provided
written comments to NMFS on the DEIS are also uncertain about the
effectiveness of other aspects of the proposed changes to the ALWTR plan.
Specifically, they were uncertain about whether the use of weak links will
reduce risks to whales because whales have been found entangled in fishing
rope that had weak links, but the links failed to break apart. A NMFS
official acknowledged that weak links are not effective for all types of
entanglements. For example, if the whale thrashes around in response to
the entanglement and becomes wrapped in the gear, the weak link will not
disengage. However, NMFS officials noted that weak links were designed for
mouth entanglements, and there have been no documented cases of weak links
malfunctioning in a mouth entanglement. Rather, the entanglements with
weak links that failed to break apart were entanglements that involved the
whale's tail. Even though weak links may not enable whales to free
themselves each time they encounter gear, some scientists told us that
weak links should be required because they may prevent certain
entanglements and are inexpensive and easy for fishermen to use. In fact,
two of the three fishing industry association groups with whom we spoke
support the use of weak links. The third group, while supportive of using
weak links, wanted the breaking strength of weak links to be maintained at
its current level during the fall and winter months because if the
breaking strength was any weaker, rough tides and weather in offshore
waters may cause the buoy to break from the vertical line at the weak
link.

Despite their general support of weak links, some of the scientists and
conservationists with whom we spoke or who provided written comments to
NMFS on the DEIS remain concerned that the breaking strengths of weak
links established by NMFS were based on fishing industry needs and not
whale protection. According to NMFS scientists, the tests the agency
conducted to determine the appropriate breaking strength of weak links
were designed to ensure the line does not break when fishermen haul their
gear. NMFS officials stated that the agency also considered what was
needed to protect whales when developing the breaking strength for weak
links. However, research by a scientist at the Stellwagen Bank National
Marine Sanctuary and members of the fishing industry suggests that gillnet
fishermen could operate successfully using weak links that would be easier
for whales to break, specifically a 600-pound breaking strength rather
than the current 1,100-pound strength.33 NMFS officials stated that
despite what the report said, the lower breaking strength may not be
operationally feasible because after the report was released a fisherman
involved in the study experienced failures on some of the weak links in
his gear. NMFS officials also questioned whether larger gillnet vessels in
deeper water would be able to successfully operate with 600-pound weak
links.

Similarly, some of the scientists and conservationists with whom we spoke
or who provided written comments to NMFS on the DEIS expressed concern
about the areas NMFS proposed for exemption from the gear modifications.34
Some cautioned that there are risks associated with any exemption area
because it only takes one whale traveling within exempted waters for a
fatal entanglement to occur--and for right whales one death limits the
ability of the species to recover. In addition, some scientists told us
that they were concerned that the sightings data used to draw the
exemption line may not reflect the actual long-term distribution of
whales, as there have been limited efforts to survey the whale population
outside of known calving and feeding grounds. In addition, some
conservationists note that there have been whale sightings within the
exempted areas. However, NMFS officials stated that the agency conducts
broad-scale aerial surveys of whales from the Maine-Canada border to New
York and has aerial survey coverage in other areas along the east coast as
well. In addition, NMFS said in the DEIS that it plans to monitor whale
sightings in exempted areas and assess if gear modifications are necessary
in these areas.

33Mackintosh, W. and Wiley, D. The Development and Operational Testing of
Gillnet Fishing Gear Equipped with Five 600 lb Weak Links. Report to the
International Wildlife Coalition and the Northeast Consortium. (May 6,
2005).

34NMFS opened a formal public comment period on the DEIS during which any
stakeholder could submit comments.

NMFS Has Not Resolved Potential Implementation Challenges with Using Modified
Fishing Gear in Rocky Ocean Bottom Areas

A controversial aspect of the proposed changes to the ALWTR plan that has
yet to be resolved is whether sinking groundline is operationally feasible
in rocky ocean bottom areas. NMFS told us that it is operationally
feasible to use sinking groundline in all areas, but that fishermen may
have to modify their fishing practices. For example, the Massachusetts
Lobstermen's Association stated that while fishermen have experienced
problems operating in rocky bottom areas off the coast of Massachusetts,
they have been able to adapt to using sinking groundline. In contrast,
officials from the Maine Lobstermen's Association (MLA) told us that
fishermen who operate in rocky ocean bottom areas will not be able to use
sinking groundline because it will abrade on the rocky bottom--requiring
them to replace their rope too frequently and causing gear loss--and may
create safety hazards for fishermen.

To assess the feasibility of using sinking groundline, NMFS gear
specialists distributed it to 55 fishermen in Northeast states, including
Maine, in 2000.35 NMFS then formally surveyed these fishermen to assess
the performance of the sinking groundline in 2003.36 The 25 fishermen who
responded to the survey reported mixed views on the performance of the
sinking groundline, with the greatest amount of negative feedback coming
from fishermen who operate in eastern Maine. Fishing industry
representatives told us that the waters off the coast of eastern Maine
consist of rocky bottom. Some of the fishermen who responded to the survey
reported experiencing rope abrasion when using sinking groundline in rocky
ocean bottom areas. NMFS gear specialists stated that there was a wide
range in the length of time that fishermen used the line that was
distributed to them in 2000--while some stopped using it after 1 week due
to abrasion, others are still using the line today, including some in the
rocky bottom areas of Maine. The agency maintains that while fishermen
will experience different rates of abrasion in different areas, overall,
abrasion will not be a significant problem because fishermen move around
and operate in multiple bottom types, instead of exclusively fishing in
one area. In addition, NMFS officials noted that rope abrasion is not a
problem exclusively associated with the use of sinking groundline;
fishermen who use floating groundline also experience rope abrasion.

35In addition to the field testing of sinking groundline with fishermen
described in this report, NMFS conducted additional testing of sinking
groundline, including using a line testing machine that simulates some of
the long-term wear and tear that lines experience in the field. NMFS gear
specialists are former fishermen or boat captains who test fishing gear
and conduct outreach with fishermen.

36While the formal survey was conducted in 2003, NMFS gear specialists
told us that they interviewed fishermen throughout the duration of the
test and still informally check in with fishermen who continue to use the
line today.

In addition, NMFS gear specialists maintain that fishermen will be able to
use sinking groundline once they gain experience using it. NMFS gear
specialists attributed the increased negative feedback regarding using
sinking groundline in the rocky areas of Maine to the fact that fishermen
in these areas are less likely than fishermen elsewhere to have experience
using sinking groundline. The gear specialists told us that fishermen may
have to modify their fishing practices in order to successfully use
sinking groundline, although NMFS did not discuss this in the DEIS. For
example, when using sinking groundline, fishermen will have to be more
precise when positioning their boat to haul up their traps. According to
these gear specialists, one technique that fishermen could use is to set
their boats directly above the traps, so that the fishermen can haul the
line straight up and prevent it from getting caught on rocks. However,
NMFS maintains that there is no one answer to successfully fishing with
sinking groundline on rocky bottom, and it will take fishermen several
attempts and techniques to adjust to using sinking groundline.

In contrast, the MLA conducted some limited testing of experimental
sinking groundline37 under contract with the Consortium for Wildlife
Bycatch Reduction38 and concluded that it was not feasible to use in all
areas. According to an MLA official, some Maine fishermen reported that
sinking groundline performed well, but fishermen who fish in rocky areas
generally reported negative experiences. An MLA official told us that, due
to abrasion, sinking groundline does not last longer than 1 month in the
rockiest areas of Maine, where fishermen experienced such bad abrasion
that they stopped using the line to avoid losing their traps. At best, in
areas of Maine that are not as rocky, the MLA official told us that
sinking groundline would last 1 year--5 years less than NMFS's estimate in
the DEIS.39 However, the MLA acknowledged that sinking groundline was only
tested for a short period of time and therefore recommends additional
testing to get a better understanding of its durability.

37Experimental sinking groundline refers to rope that is under
development. It is being tested because it is made with different
materials or coatings than rope currently on the market.

38The Consortium for Wildlife Bycatch Reduction is a NMFS-funded
partnership between scientists and industry to design, field test, and
promote fishing gear that minimizes incidental harm to marine life.
Founding members include the [20]University of New Hampshire , [21]Duke
University , the [22]Maine Lobstermen's Association , and the New England
Aquarium.

Fishermen are also concerned that rope abrasion from using sinking
groundline in rocky bottom areas will cause gear loss. Based on his
professional experience, an MLA official told us that Maine fishermen who
fish in rocky bottom areas will experience more gear loss than NMFS
estimated because the weakened rope will cause the traps to easily
separate. NMFS recognizes that gear loss will be higher, in certain areas,
if sinking groundline is required, but a NMFS official told us that rope
abrasion will not cause more gear loss than fishermen currently experience
because fishermen have the ability to recognize when their rope should be
replaced. The NMFS official maintained that fishermen need to be vigilant
about the condition of their rope--whether it is floating groundline or
sinking groundline--and replace it, as needed, in order to avoid gear
loss. However, the agency recognizes that sinking groundline could
contribute to increased gear loss as a result of line wrapping around
rocks or other marine debris on the ocean floor. If the line becomes
caught on the ocean floor, it may break as it hauled to the surface,
causing the traps to become separated from the vertical line. When traps
become separated from the vertical line, NMFS officials told us that it
may be more difficult for fishermen to retrieve their gear if they are
using sinking groundline. For Maine inshore fishermen, lost traps will
also be more difficult to retrieve because (1) these fishermen are more
likely to use shorter trawls than fishermen in other areas--which can be
more challenging to locate than a longer trawl that covers more area--and
(2) the hook used to retrieve lost gear can bounce off of the rocky
bottom, instead of grasping the gear. While an MLA official did not
dispute that the factors NMFS cited will contribute to gear loss, he
maintained that rope abrasion will also cause gear loss.

MLA officials told us that the Association also has concerns about hauling
gear in the manner NMFS described and indicated that there are safety
issues with using sinking groundline in rocky bottom areas. Due to rough
tidal and weather conditions, an MLA official told us that it is not
possible for fishermen to haul their traps from a precise location, as
NMFS described. The MLA also is concerned that using sinking groundline in
the rocky bottom areas of Maine poses safety issues. For example, if
fishermen attempt to haul line that is caught on a rock, their boat could
tip, potentially causing injury. Also, if the line snaps when being hauled
because it has been weakened due to abrasion, it could strike and injure
people on the boat. The Atlantic Offshore Lobstermen's Association also
expressed concern about the safety hazards associated with hauling traps
using an abraded line that may break. In the DEIS, NMFS acknowledged that
there are potential safety hazards associated with the use of sinking
groundline. However, an agency official told us that floating groundline
can also pose a similar type of safety hazard.

39NMFS's estimate for the lifespan of 3/8" sinking groundline is 6 years.

To overcome the operational difficulties associated with using sinking
groundline in rocky bottom areas, the Maine Department of Marine Resources
submitted a proposal to NMFS in January 2007 that outlined an alternative
to the use of sinking groundline along rocky areas of Maine's coast. One
of the most prominent features of this proposal involves using low-profile
groundline instead of sinking groundline in Maine's rocky bottom areas.
Low-profile groundline is still in development, but to reduce abrasion,
the Department of Marine Resources tested a line that floats, on average,
about 3 feet above the ocean bottom instead of sinking to the bottom.
Maine officials acknowledge that whales are present in the waters where
they proposed using low-profile line, but maintain that it is a better
alternative to using sinking groundline in rocky bottom areas. The state
believes that low-profile groundline will be beneficial for fishermen in
these areas, while also protecting whales from entanglement. The
scientists with whom we spoke were not willing to support low-profile
groundline until further research is conducted because they were unsure if
it would reduce the risk of entanglement. NMFS is also concerned because
although the low-profile groundline tested by the Maine Department of
Marine Resources may on average float 3 feet above the ocean floor, in
reality the rope moves constantly in the water, sometimes higher than 3
feet and sometimes lower. When it moves above the average height it could
form an arc similar to that of floating groundline creating an
entanglement risk for large whales. A NMFS official told us that the
agency plans to compile proposals on issues related to overcoming the
operational difficulties associated with using sinking groundline,
including the Maine Department of Marine Resources' low-profile groundline
proposal, and will circulate them to the ALWTR Team for comment and
discussion.

NMFS Did Not Adequately Represent Uncertainties Associated With Proposed Gear
Modifications Cost and Could Not Fully Assess Impacts on Potentially Affected
Fishing Communities

NMFS did not have verifiable data for some of the key variables used in
its assessment of the fishing industry's costs of complying with the
proposed gear modifications.40 In lieu of such data, NMFS relied on data
that contained significant uncertainties about the compliance costs. NMFS
acknowledged these uncertainties but, by not analyzing and presenting a
range of possible costs, did not adequately represent them in the cost
assessment included in the DEIS. As a result, the extent to which the
fishing industry's actual costs to comply with the proposed gear
modifications could be lower or higher than the amount reported in the
DEIS is unclear. In addition, NMFS could not fully assess the impacts of
these costs on fishing communities because it lacked data to estimate the
affected fishermen's ability to absorb additional compliance costs as well
as which specific communities would have to absorb any loss in jobs.
Without such data, the agency could not adequately determine how many
fishermen would be forced out of business or what impact this would have
on communities whose economies are closely tied to the fishing industry.

Significant Uncertainties Exist Regarding NMFS's Cost Estimates of Complying
with the Proposed Gear Modifications

NMFS estimated that the total cost to the fishing industry of complying
with the proposed gear modifications would be about $14 million
annually.41 NMFS estimated that the lobster industry would incur more than
$12.8 million of the projected $14 million costs. To estimate these costs,
NMFS analyzed important differences between fishermen such as their
location of operation, number of months of operation, and what they catch.
This approach allowed the agency to capture variations in the gear
configurations and operating characteristics of different types of
fishermen and their associated differences in expected compliance costs.
NMFS also identified and analyzed the key variables that are responsible
for the total cost of complying with the proposed gear modifications, such
as the lifespan of groundline, price of groundline, amount of gear loss,
and the number of fishermen that would incur these costs. However, there
were significant uncertainties associated with the data used to develop
these cost estimates, which were not fully represented in NMFS's single
cost estimate.

40NMFS's analysis was based on vessels, but in this report we will refer
to vessels as fishermen because they are affected by the regulation and
would incur the costs.

41NMFS estimated the total cost to the fishing industry from the gear
modifications outlined in each of its six proposed alternatives to
revising the ALWTR plan in 2003 dollars. In this report, we discuss the
costs of the two preferred alternatives, both of which NMFS estimated
would cost the fishing industry about $14 million annually.

First, NMFS determined the lifespan of both floating and sinking
groundline based on undocumented estimates from fishermen and commercial
marine suppliers it interviewed, rather than data that could be verified
from field tests of groundline. Knowing the lifespan of groundline is
important because replacing it more frequently results in higher costs to
fishermen. Though NMFS tested sinking groundline to determine if it was
operationally feasible to use throughout the northeast coast, it did not
use the results of these tests to determine its lifespan. The agency
believes that field testing would not have provided better information
than the interviews it conducted on the lifespan of groundline because its
use varies from fisherman to fisherman. Based on its interviews, NMFS
reported in the DEIS that sinking groundline, depending on its diameter,
would last between 1 and 3 years less--a 17 to 33 percent shorter
lifespan--than the corresponding diameter of floating groundline.42
However, NMFS could not provide documentation of its interviews or details
on how the lifespan--as reported by those interviewed--varied. According
to the MLA, the lifespan of sinking groundline can range substantially and
could be much shorter than the average NMFS reported in the DEIS. In the
DEIS, NMFS acknowledged that the lifespan of groundline is extremely
uncertain due to variations in where it is used, such as water temperature
and bottom conditions, and the specific operating practices of fishermen.
NMFS does not expect that all fishermen's groundline would have the same
lifespan as the estimates reported in the DEIS and acknowledges that
actual costs to replace groundline could be higher or lower than
estimated. Nonetheless, the agency believes that its estimates of the
lifespan of sinking groundline are accurate and reflect what fishermen
would experience in typical operating conditions. However, by using an
average lifespan of groundline in its cost estimate, rather than the range
of data collected from fishermen, NMFS did not fully address the concern
that the useful life of groundline can vary significantly, depending on a
fisherman's practices and fishing location.

Second, while the price of groundline can vary substantially, NMFS did not
use a range of prices in its analysis to account for these differences. In
2003, NMFS contacted four commercial marine suppliers and dealers to
obtain prices of both sinking and floating groundline. The agency used the
median reported price to estimate the costs of replacing floating
groundline with sinking groundline. However, the agency does not have
documentation of the prices collected and could not describe how these
prices varied. We contacted the same suppliers and dealers and found that
the price of groundline can range substantially. For example, in February
and April 2007 the price of 3/8" sinking groundline--the most commonly
used groundline by fishermen and within NMFS's cost analysis--ranged from
almost 1 percent to almost 34 percent higher than the price reported in
the DEIS.43 NMFS acknowledges that the price of groundline could be higher
or lower than reported in the DEIS but did not analyze and report the
range of groundline prices it collected from suppliers and dealers.

42Lifespan percentages are GAO's analysis of NMFS lifespan data.

Third, NMFS's estimates of the costs of gear loss were based on expert
opinion because data from field tests were not available. In the DEIS,
NMFS generally reported that fishermen that comply with the proposed gear
modifications would experience greater gear loss than they do currently.
For example, sinking groundline could lead to greater gear loss because
the groundline can get caught on rocks and break as gear is hauled up.
However, due to a lack of data, NMFS cannot estimate with confidence how
much gear loss would increase for fishermen complying with the proposed
gear modifications. The agency did not believe it would be practical to
conduct field testing to determine what gear loss could be throughout the
Atlantic because it can vary greatly, depending on how and where the gear
is used. Instead, NMFS relied on the expert opinions of its gear research
team, composed of ex-fishermen who are experienced with fishing gear, and
the contractor that prepared the DEIS to estimate gear loss. The research
team and the contractor assumed that gear loss attributable to the
proposed gear modifications would be approximately double what the fishing
industry currently loses in most areas. They estimated that gear loss
would be even higher--approximately three times as much as they currently
lose--for fishermen operating in areas near the coast of Maine due to
difficulties with retrieving gear in rocky bottom areas. While NMFS
believes its estimates were reasonable, the MLA believes that these
gear-loss estimates are inaccurate and likely to be too low in Maine's
rocky bottom areas. The agency does acknowledge that actual gear-loss
costs could be higher or lower than it estimated in the DEIS. However, by
not analyzing and reporting a range of possible gear-loss costs, NMFS did
not fully represent the uncertainty of its gear-loss assumptions, even
though it recognized that gear loss can vary, depending on the conditions
of use.

43The prices reported for rope in the DEIS were adjusted to 2007 dollars
to account for inflation.

Fourth, NMFS may have underestimated the number of Maine lobster fishermen
that would be required to comply with the proposed gear modifications.
While all fishermen that operate in northern federal waters would be
subject to gear modification requirements, all fishermen that operate in
state waters along the east coast would not share these requirements
because NMFS proposed that some areas be exempted from the regulation.44
However, NMFS lacked data to effectively determine where state-permitted
fishermen operate throughout the year and specifically how many would
operate in waters exempted from the new requirements because Maine does
not require fishermen to report where they operate.45 Without this
information, NMFS assumed that the percentage of fishermen who would
operate in areas exempt from the proposed regulation would correspond to
the percentage of state waters that are exempt. For example, NMFS reported
in the DEIS that approximately 50 percent of Maine's state waters would be
exempted from the gear-modification requirements. The agency also assumed
that fishermen would operate in the same areas year-round so those
operating in exempted waters would not be affected by the proposed gear
modifications. NMFS made this assumption because it believes that lobster
fishing in Maine is extremely territorial, and therefore the distance that
fishermen move their gear is limited by traditional fishing area
boundaries. Consequently, the agency assumed that approximately 50 percent
of Maine's lobster fishermen, or approximately 1,853 fishermen, would
operate exclusively in exempted waters and would not be affected by the
gear-modification requirements.46 However, a Maine state official and a
MLA representative told us that it was unreasonable to assume that lobster
fishermen would operate in only one area throughout the year. In fact,
they said that fishermen operate wherever lobsters are, which may be in or
out of exempted waters. If so, NMFS may not have captured the costs of the
proposed gear modifications for an unknown number of Maine fishermen, and
therefore may have underestimated how many would be affected by the
proposed ALWTR plan changes and thus the total associated costs to the
fishing industry.

44Federal waters, that is, waters under the jurisdiction of the United
States, extend from 3 nautical miles to 200 nautical miles offshore. State
waters extend from the shore to 3 nautical miles offshore.

45State-permitted fishermen are those that operate in state waters and are
required to obtain a permit from the state.

46This estimate only includes state-permitted fishermen, not those that
may also have a federal permit.

NMFS acknowledges that there were uncertainties with the data used in its
analysis of the costs to the fishing industry and that actual costs could
be higher or lower than presented in the DEIS. However, NMFS did not
determine the extent to which changes in the lifespan of groundline, price
of groundline, amount of gear loss, or the number of fishermen who would
have to comply with these requirements would impact the overall $14
million cost estimate. By reporting a single estimate rather than a range
of the fishermen's compliance costs, the DEIS did not adequately represent
the uncertainties of these key variables in NMFS's assessment.
Furthermore, without reporting such a range to account for these
uncertainties, the extent to which the total estimated cost of complying
with the proposed gear modifications could be different than the $14
million estimate reported in the DEIS is unclear.

NMFS Could Not Fully Assess the Impacts of the Proposed Changes on Fishing
Communities Because It Lacked Data on Fishermen's Ability to Absorb Additional
Costs and Remain in Business

In addition to assessing the cost of the proposed gear modifications to
the fishing industry, NMFS analyzed the effects of the costs of complying
with the proposed gear modifications on both fishermen and fishing
communities. Conducting an analysis of the effects on fishing communities
first requires determining fishermen's ability to absorb additional costs
and remain in business and may also include an estimate of changes in
regional employment and income directly and indirectly related to the cost
of complying with the proposed regulation.47 However, NMFS could not fully
conduct these analyses due to a lack of data.

Specifically, NMFS lacked data on fishermen's costs and revenue in a way
that it could estimate their ability to absorb the increased costs of
complying with the proposed gear modifications without going out of
business. Instead, NMFS estimated fishermen's average annual revenue and
then made an arbitrary assumption about the level of increased costs that
would cause a fisherman to go out of business. First, NMFS estimated
fishermen's annual revenue based on a limited number of fishermen because
comprehensive revenue data do not exist. For example, NMFS used data from
9 lobster fishermen to estimate the revenue of 284 northern lobster
fishermen that operate vessels less than 28 feet long. However, without
fishermen-specific revenue data for all fishermen, the agency was unsure
how well its estimates would compare with their actual revenue. Regarding
small lobster vessels, NMFS said that it is possible that its analysis in
the DEIS systematically underestimates their revenue. NMFS then made an
arbitrary assumption that if gear-modification costs were greater than 15
percent of a fisherman's estimated annual revenue, then the fisherman
could not absorb the additional costs and would go out of business. NMFS
reported in the DEIS that it made this assumption because there is no
clearly defined threshold of additional costs that would cause a fisherman
to go out of business. Using this assumption, NMFS estimated that
approximately 379 fishermen would go out of business, including many that
operate smaller vessels for which NMFS lacked actual revenue data.
However, because fishermen's actual revenues, as well as their ability to
absorb additional costs, could be noticeably different from what NMFS
assumed, the number of fisherman that would go out of business could be
lower or higher than NMFS estimated.

47NOAA guidance, which NMFS followed to conduct the economic assessment
within the DEIS, does not require the agency to estimate changes in
regional employment and income.

Furthermore, because NMFS lacked information about which specific
fishermen, living in which communities, would go out of business, it could
not predict the extent to which specific communities would be affected.
That is, NMFS could not identify exactly which communities would lose jobs
or quantify any loss of regional income as the result of complying with
the regulation. NMFS officials stated that associating any impact to a
particular fishing community is particularly difficult because fishermen
can sell their fish in one town, harbor their boat in a different town,
and reside in a neighboring town. As an alternative, the agency identified
potentially affected counties that had (1) over 100 fishermen that would
be subject to the ALWTR plan requirements and (2) reported annual
landings--seafood caught by fishermen--over 2 million pounds by vessels
using ALWTR plan regulated gear.48 The agency identified 15 counties that
met these criteria, many of which were in Maine and economically dependent
on the fishing industry.49 The agency reported a general description of
possible employment effects on these counties, but could not quantify and
specifically associate the impact of lost income and employment to any
specific community. Consequently, it is not clear how significant the
potential economic impacts on these communities would be and how well
these communities could withstand the potential loss of fishing jobs and
related income.

48NMFS identified over 100 vessels within each county to determine if they
would be at-risk of being affected; however, in this report we refer to
them as fishermen.

49The Magnuson-Stevens Act requires that NMFS consider impacts on
"communities." The act defines "fishing community" as "a community which
is substantially dependent on or substantially engaged in the harvest or
processing of fishery resources to meet social and economic needs and
includes fishing vessel owners, operators, and crew and United States fish
processors that are based in such community." 16 U.S.C. S 1802(16). NMFS
used counties as a proxy for communities because fishermen may reside in
an area different from where they port their vessel. In addition, much of
the landings data was county specific.

NMFS Has Not Developed Strategies for Fully Evaluating the Effectiveness of the
Proposed Gear Modifications

Although NMFS's proposed modifications to the ALWTR plan contain some
revisions to the current gear-marking requirements, such as increased
marking of the vertical line, the agency has not developed a comprehensive
approach to gear marking that would provide more complete information
about the gear involved in future whale entanglements. Markings on
commercial fishing gear can enable researchers to assess the type of rope
involved in an entanglement, thereby providing critical information to
assess the effectiveness of current whale protection measures and insights
into needed changes. In addition, NMFS has not developed a strategy for
determining whether future entanglements are due to industry noncompliance
with the gear modification requirements or the ineffectiveness of the gear
modifications themselves.

Lack of Comprehensive Gear-Marking Requirements Could Hamper Assessment of
Proposed Gear Modifications

Research on the nature and source of whale entanglements is challenging in
that entanglements are not directly observed when they occur. Instead,
NMFS's gear research team is forced to rely on the gear it retrieves from
entangled whales and/or photographs taken of the entanglement, if any.
Even when gear is recovered, the gear research team may have only a rope
fragment to evaluate. Therefore, markings on gear can play a critical role
in informing scientists about the nature of the entanglement. Gear
markings can potentially indicate whether a whale became entangled in
groundline or vertical line, whether the gear was from the lobster fishery
or some other fishery, and the geographic area where the gear was set.
Currently, gear markings, such as vessel or permit numbers on buoys, can
identify the name of the fisherman who set the gear so that NMFS officials
can obtain specific information from the fisherman, such as the exact
location where the gear was set.

Under the current regulation, NMFS requires some trap and gillnet
fishermen to place one color-coded, 4-inch mark on the vertical line
mid-way through its length, which fishermen typically paint on or tape to
the rope. The color-coding scheme provides information about the location
and fishery involved in the entanglement. For example, lobster fishermen
in the Cape Cod Bay Restricted Area in federal waters--an area NMFS has
designated as a critical habitat for large whales--are required to use a
red mark. Other colors are used to indicate other fisheries and areas.
However, according to a NMFS official, the current gear-marking scheme has
not been effective in assisting researchers because only rarely have
fragments of vertical line been recovered that included the required mark.

NMFS proposed a new requirement for marking vertical line because the
agency recognized that markings would be useful as the agency and the
ALWTR Team further evaluate vertical line for future regulatory action.
For example, if the agency recovered a rope that was marked, it would be
better able to determine that it was vertical line and how frequently
vertical line was involved with entanglements. Specifically, NMFS proposed
expanding the frequency of gear marking--to one 4-inch mark every 60 feet
on the vertical line.50 A NMFS official with whom we spoke said the agency
based the 60-foot requirement on the average length of rope found on
entangled whales. The official explained that the 60-foot requirement
would increase the likelihood of recovering marked rope from an entangled
whale and would also minimize the burden on fishermen by not requiring
them to mark rope even more frequently.

However, we believe NMFS's proposed gear-marking requirement may not be
adequate in assisting researchers in identifying the gear that is
recovered from an entangled whale because it is not comprehensive. First,
even with increased markings on vertical lines, researchers may still not
retrieve the marked portion of the rope. For example, some of the rope
recovered from entangled whales has been only 6 feet long. Some
stakeholders, including scientists at the Provincetown Center for Coastal
Studies, recommended that NMFS require continuous marking throughout the
length of the rope through the use of tracer lines--colored threads of
line throughout the length of the rope. However, according to a NMFS
official, continuous marking throughout the length of the rope is not
practical because, among other reasons, it would limit fishermen's ability
to move between different fishing areas that require different color
markings.

Second, NMFS has not proposed marking sinking groundline. NMFS did not
provide a rationale in the DEIS for not requiring the marking of sinking
groundline. However, a NMFS official told us that the agency believed that
sinking groundline would be completely effective at reducing groundline
entanglements, and therefore there was no need to burden fishermen with a
marking requirement on such line. However, scientists with whom we spoke
believe that while sinking groundline will reduce entanglement risk, they
do not believe that its complete success can be guaranteed. For example,
scientists have observed endangered whales with mud on their heads, which
scientists believe whales acquired scraping the ocean floor as they feed.
Based on this information, scientists are concerned that endangered whales
could become entangled in sinking groundline. Consequently, several
scientists with whom we spoke, including several NMFS scientists, told us
that sinking groundline should be marked so its performance can be
evaluated.

50For vertical lines that are less than 60 feet, fishermen would be
required to place one 4-inch mark in the center of the line.

Third, NMFS did not require gear markings in areas that have been exempted
from the proposed gear modifications. NMFS developed exempted areas
because the agency determined, based on whale sighting data, that certain
waters pose a relatively low risk of entanglement because they are not as
frequently traveled by endangered whales as others. However, because some
of these areas are dense with commercial fishing gear, they nevertheless
pose some risk. Consequently, we believe that any assessment of the new
regulations would benefit from gear markings on the gear used by fishermen
in exempted areas, even if they are not required to use modified gear.

Various stakeholders with whom we spoke or who submitted comments on the
DEIS expressed concern about NMFS's proposed gear-marking scheme. Industry
representatives were concerned about the burden the requirement would
place on fishermen who would have to mark rope more frequently and the
impracticality of marking rope every 60 feet. According to the
Massachusetts Lobstermen's Association, painted marks can fade or become
covered by algae and therefore must be maintained to retain their
visibility--a problem that would be exacerbated with additional marking
requirements. Also, maintaining a 60-foot space between marks is difficult
because commercial fishermen must routinely cut and splice fishing lines.
For example, fishermen may find their ropes inadvertently cut due to
commercial and recreational vessel traffic and need to splice rope
together. Fishermen may also change the length of their ropes when moving
gear into and out of deep water. Given the impracticality of marking rope
every 60 feet, the Cetacean Society International stated that NMFS should
consider requiring rope that was marked continuously through the length of
the rope by the manufacturer.

Stakeholders with whom we spoke observed that markings that were specific
to individual fishermen could be useful to researchers because they would
enable researchers to obtain information from fishermen, specifically on
how and where they set their gear. The Maine Lobstermen's Association and
the Provincetown Center for Coastal Studies noted that new technology,
such as microchips embedded in fishing rope, could potentially provide
fishermen-specific information and that they would favor its use if the
technology was feasible in the commercial fishing environment. NMFS's gear
research team is aware of this technology, but believes that it is not yet
suited to commercial fishing conditions because microchips embedded in
rope may pop out as the rope moves through hauling devices used to pull
gear out of the water.

NMFS Lacks a Strategy for Assessing Industry Compliance with the Proposed Gear
Modifications

NMFS has not developed a strategy that will allow it to determine whether
any future whale entanglements are due to noncompliance with the proposed
new gear requirements by fishermen or the ineffectiveness of the gear
modifications. NMFS did not specify in the DEIS how it plans to monitor
industry compliance with its proposed rule and has not developed such a
plan outside of the DEIS. Stakeholders with whom we spoke or who submitted
comments on the DEIS have expressed concern that the DEIS did not include
a plan for monitoring compliance with the proposed rule. According to the
Whale Center of New England, the lack of monitoring plans in the past have
made it difficult to evaluate the effectiveness of previous actions, and
as a new regulation goes into effect, a monitoring plan would be critical
in assessing the success or failure of the proposed actions.51 A
Provincetown Center for Coastal Studies scientist observed that a plan for
monitoring the proposed rule is as important to effectively protecting
whales as the gear modifications themselves. A NMFS official told us that
the agency understands the importance of having a compliance strategy and
plans to develop one.

Regarding the current regulatory requirements, NMFS has not conducted a
systematic survey of industry compliance and therefore, does not know the
extent of industry compliance along the east coast. Maine is the only
state to have conducted even limited compliance surveys of its
state-permitted vessels. Since 2002, Maine has conducted annual compliance
surveys over a 30-day period in both state and federal waters off the
coast of Maine, according to a Maine Department of Marine Resources
official.52 During the survey, enforcement officers in patrol boats target
large concentrations of gear and randomly pull gear out of the water. The
enforcement officers document information about the type and location of
gear, the owner, and what species the fishermen were targeting. This
effort is conducted separately from routine enforcement patrols during
which enforcement officers complete logs that record only violations.
According to a Department of Marine Resources official, the state can
conduct this compliance survey because it has vessels that are equipped to
haul commercial fishing gear, even from deep water areas and because NMFS
has provided funding to support this effort. Although Maine's annual
compliance survey indicates a high rate of compliance, it is subject to a
number of limitations. The survey is not conducted using scientific
sampling of gear, so the results cannot be generalized to all gear, and it
does not incorporate all segments of Maine's fishing industry, so it is
not comprehensive.

51The Whale Center of New England is a nonprofit organization that
conducts research, conservation, and education.

52The lack of federal funding in 2006 prevented Maine from conducting the
survey that year, but the state plans to resume the survey in 2007.

Effective January 2007, Massachusetts required that sinking groundline be
used throughout state waters--a requirement similar to what NMFS proposed
along the north Atlantic coast. Officials with the Massachusetts Office of
Law Enforcement Environmental Police stated that they are exploring the
use of a vessel equipped with sonar to assess whether fishermen are
complying with the state's sinking groundline requirement. Through sonar,
the department can detect if fishermen are using floating or sinking
groundline without hauling the gear out of the water. They explained that
sonar could be an efficient method for conducting a systematic survey
because hauling gear is time consuming, particularly since the gear must
be placed back carefully where the fisherman had the gear set.

Conclusion

NMFS has a challenging mandate of reducing the risks posed to the survival
of Atlantic large whales by entanglements in commercial fishing gear,
while also taking into account the economic interests of commercial
fishermen. In its continuing efforts to protect endangered whales,
including the right whale which is critically endangered, NMFS is
considering various revisions to the existing regulations which include
certain gear modifications for the fishing industry. However, the economic
analysis that NMFS developed to support its actions does not disclose the
full range of possible costs that the proposed gear modifications may
impose on fishermen although it acknowledges that costs could be higher or
lower than it presented. While we believe the approach that NMFS used to
estimate compliance costs is reasonable, we are concerned that the
presentation of costs did not fully reflect the uncertainty of the
analysis. Moreover, given the concerns raised by scientists and other
experts regarding the effectiveness of the proposed gear modifications in
eliminating whale entanglements, it is important for NMFS to develop
strategies that will allow it to assess the effectiveness of these changes
as well as monitor industry compliance. However, NMFS has neither
developed a comprehensive strategy to help it assess whether its proposed
gear modifications are effective in eliminating whale entanglements nor
has it developed a program to monitor industry compliance.

Recommendations

Before NMFS finalizes its proposed regulations for the ALWTR plan, we
recommend that the Secretary of Commerce direct the Administrator of
National Oceanic and Atmospheric Administration to direct the Assistant
Administrator for NMFS to take the following three actions:

           o adequately represent the uncertainty in data that the agency
           used to determine the costs of the proposed fishing gear
           modifications, by presenting a range of possible costs in the
           economic analysis section of the final environmental impact
           statement;

           o revise the proposed gear-marking requirements to include
           markings on sinking groundline and gear marking requirements in
           exempted areas; and

           o develop a strategy for assessing the extent of industry
           compliance with the gear modification requirements.
			  
			  Agency Comments and Our Evaluation

           We provided a draft of this report to the Department of Commerce
           for review and comment. In its comments, the Department of
           Commerce's NOAA questioned whether we had obtained input from a
           broad range of stakeholders, felt the report appeared to focus
           solely on the impacts to the Maine fishing community, and
           disagreed with two of our recommendations.

           We disagree with NOAA's comment that we did not obtain and reflect
           a range of stakeholders' views in this report. As described in
           detail in our objectives, scope, and methodology, included in
           appendix I, we conducted interviews, reviewed documents, and took
           other steps to ensure that our work adequately portrays a wide
           range of stakeholders' views and appropriately addresses the
           complexities of these issues. In addition to NMFS officials, the
           stakeholders we contacted include state marine fishery management
           agency officials from Maine and Massachusetts; fishing industry
           representatives from the Massachusetts Lobstermen's Association,
           Maine Lobstermen's Association, and the Atlantic Offshore
           Lobstermen's Association; a representative from the Humane Society
           of the United States; and scientists from the Provincetown Center
           for Coastal Studies, the New England Aquarium, the Woods Hole
           Oceanographic Institution, and the Marine Mammal Commission. We
           also reviewed all of the stakeholders' comments submitted to NMFS
           on the DEIS and attended a meeting of the ALWTR Team--composed of
           fishermen, scientists, conservationists, and state and federal
           officials who are tasked with monitoring the status of the ALWTR
           plan and advising NMFS as it develops revisions to the plan.

           In its general comments, NOAA also stated that, in its view, the
           draft report appears to focus solely on the impacts to the Maine
           fishing community. We do not agree with this characterization of
           the report. Although the report clearly places some emphasis on
           issues of concern to the Maine lobster industry, we believe this
           is appropriate given the objectives we were asked to address in
           this review. Two of our objectives specifically focus on how NMFS
           plans to address issues related to implementing the proposed
           changes to the ALWTR plan, particularly in the rocky bottom areas
           of the north Atlantic coast, and to evaluate the extent to which
           NMFS fully assessed costs to the fishing industry and economic
           impacts on fishermen. The rocky bottom areas of concern are
           located primarily off the coast of Maine; and as a result, the
           report describes concerns raised by Maine lobstermen regarding the
           implementation challenges they believe they will face. In
           addition, according to NMFS's analysis contained in the DEIS, the
           lobster industry will bear $12.8 million of the approximately $14
           million annual cost of complying with the proposed regulatory
           changes, and this industry is primarily centered in Maine and
           Massachusetts. Consequently, the report appropriately includes
           concerns raised by Maine lobstermen about NMFS's analysis of the
           costs of complying with the proposed regulatory changes.

           With regard to our recommendations, NOAA believes that the
           uncertainty of the data was adequately represented in the DEIS and
           therefore did not agree with our recommendation that the agency
           present a range of possible costs in its final economic analysis
           to represent the uncertainty in the data. Nonetheless, NOAA said
           that it is planning to clarify the variations and uncertainties
           within its analysis in the Final Environmental Impact Statement
           (FEIS). NOAA said that this clarification would discuss potential
           differences in total compliance cost from variations in several of
           the assumptions that we had identified in our report. By
           recognizing that the treatment of uncertainty in the DEIS can be
           improved and by taking additional steps to explain the effect of
           uncertainty on compliance costs, the agency appears to be taking a
           step in the direction we recommended. However, we continue to
           believe that unless NMFS includes a range of possible costs facing
           the fishing industry in the FEIS, the agency will not have clearly
           and thoroughly represented the uncertainties in its analysis.

           NOAA also did not agree with our recommendation that the agency
           revise the proposed gear-marking requirements to include markings
           on sinking groundline and gear marking in exempted areas. Although
           NOAA concurred that methods are needed for identifying sinking
           groundline and gear from exempted areas, it stated that such
           markings are not feasible or practical at this time. It is unclear
           to us why NOAA would make such a statement given that in the DEIS,
           NMFS has proposed marking requirements for vertical line. We
           believe that if such marking is feasible and practical for
           vertical line, similar marking should also be feasible and
           practical for sinking groundline. Without such comprehensive gear-
           marking requirements, we believe that NMFS will not be in a
           position to evaluate whether or not its regulations, including the
           use of sinking groundline, will be effective in protecting
           Atlantic large whales from entanglement.

           NOAA did agree with our recommendation that NMFS should develop a
           strategy for assessing industry compliance with the
           gear-modification requirements. However, NOAA stated that the
           recommendation cannot be implemented before NMFS finalizes its
           proposed regulations for the ALWTR plan, as we recommended. This
           is because NMFS is currently working on the strategy and plans to
           continue discussions with the ALWTR team at its next meeting,
           tentatively scheduled for early 2008, which is beyond the time the
           FEIS and final regulation will be issued. If NOAA is unable to
           complete its strategy for assessing industry compliance prior to
           finalizing its proposed regulations, we believe the agency should
           have the strategy in place by the effective date of the final
           regulations so that NMFS can be in a position to evaluate the
           effectiveness of its regulatory changes from their inception.

           NOAA also provided technical comments, which we have incorporated
           in this report as appropriate. NOAA's comments and our detailed
           responses are presented in appendix II.

           We are sending copies of this report to the Secretary of Commerce,
           appropriate congressional committees, and other interested Members
           of Congress. We also will make copies available to others upon
           request. In addition, the report will be available at no charge on
           the GAO Web site at [23]http://www.gao.gov .

           If you or your staff have any questions about this report, please
           contact me at (202) 512-3841 or [email protected]. 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,

           Anu K. Mittal
			  Director, Natural Resources and Environment
			  
			  Appendix I: Objectives, Scope, and Methodology

           Since the National Marine Fisheries Service (NMFS) has not issued
           a final environmental impact statement or regulation, we have
           reviewed the proposed changes to the Atlantic Large Whale Take
           Reduction (ALWTR) plan outlined in the draft environmental impact
           statement (DEIS). Specifically we (1) described the scientific
           basis for the proposed changes to the ALWTR plan and the extent to
           which uncertainties exist regarding how effectively they will
           protect large whales; (2) described how the agency plans to
           address implementation issues, particularly in the rocky bottom
           areas of the North Atlantic coast; (3) evaluated the extent to
           which NMFS fully assessed costs to the fishing industry and
           economic impacts on fishermen; and (4) evaluated the extent to
           which NMFS has developed strategies for fully assessing the
           effectiveness of and industry compliance with the proposed
           changes.

           To address all four objectives, we reviewed the DEIS and the
           public comments made in response to the issuance of the DEIS. We
           interviewed officials at NMFS's Northeast Regional Office who
           participated in developing the proposed changes to the plan
           outlined in the DEIS. We interviewed state marine fishery
           management agency officials from the Maine Department of Marine
           Resources and the Massachusetts Division of Marine Fisheries. We
           also interviewed fishing industry representatives from the
           Massachusetts Lobstermen's Association, Maine Lobstermen's
           Association, and the Atlantic Offshore Lobstermen's Association.
           We interviewed a representative from the Humane Society of the
           United States, a conservation group. Finally, we attended a
           meeting of the ALWTR Team--composed of fishermen, scientists,
           conservationists, and state and federal officials who are tasked
           with monitoring the status of the ALWTR plan and advising NMFS as
           it develops revisions to the plan--held in December 2006. At this
           meeting, we observed presentations on the status of endangered
           whales, new strategies to reduce the entanglement risk of vertical
           line, and experimental whale safe rope that could be used in rocky
           bottom areas.

           To obtain information on the scientific basis for the proposed
           changes to the ALWTR plan outlined in the DEIS and any
           uncertainties regarding how effectively they will protect large
           whales, we interviewed NMFS scientists at its Northeast Fisheries
           Science Center and officials that developed the proposed changes
           to the ALWTR plan. In addition, we interviewed marine mammal
           scientists from the Provincetown Center for Coastal Studies, the
           New England Aquarium, the Woods Hole Oceanographic Institution,
           and the Marine Mammal Commission to obtain expert opinions on the
           need for regulatory action and the effectiveness of the actions
           proposed by NMFS. We also reviewed scientific literature on right,
           humpback, and fin whale behaviors and entanglements in commercial
           fishing gear. Additionally, we attended the annual meeting of the
           North Atlantic Right Whale Consortium, a group composed of a
           number of both nongovernmental and governmental organizations and
           individuals, including marine mammal scientists, who study and
           work to conserve North Atlantic right whales. At this meeting, we
           observed presentations on recent scientific research on right
           whales, including their migratory behaviors and entanglement
           risks.

           To obtain information on how NMFS plans to address issues with
           implementing its proposed changes to the ALWTR plan, especially in
           rocky bottom areas of the North Atlantic coast, we obtained the
           opinions of representatives from fishing industry associations on
           the challenges posed by the proposed gear modifications. We also
           interviewed NMFS officials from its gear research team--former
           fishermen who develop whale safe gear and provide educational
           outreach to fishermen--to obtain information on how fishermen
           could overcome these challenges. In addition, we interviewed
           officials from the Maine Department of Marine Resources and the
           Massachusetts Division of Marine Fisheries to obtain their views
           on how these challenges could impact fishermen. Finally, we
           reviewed the results from NMFS's testing of sinking groundline
           throughout the east coast as well as the results of the Maine
           Lobstermen's Association's tests of sinking groundline.

           To evaluate the extent to which NMFS fully assessed the costs to
           the fishing industry and impacts to fishing communities, we
           interviewed representatives of Industrial Economics Inc., the
           contractor who conducted the economic analysis that is included in
           the DEIS. We also interviewed officials from NMFS's Northeast
           Regional Office, including the gear research team, that
           contributed to the economic assessment. In addition, we
           interviewed economists from NMFS's Northeast Fisheries Science
           Center. We also interviewed fishing industry representatives to
           get their views on the data and assumptions used within the DEIS
           analysis. We also contacted commercial marine suppliers in
           February and April of 2007 to obtain the price of sinking
           groundline.

           To evaluate the extent to which NMFS has developed strategies for
           assessing the effectiveness of and industry compliance with the
           proposed ALWTR plan changes, we interviewed officials from NMFS's
           Northeast Regional Office on NMFS's current and planned evaluation
           strategies. We interviewed NMFS's gear research team and officials
           from the Northeast Regional Office that developed the gear-marking
           scheme on the proposed gear-marking requirements and how they were
           developed. We interviewed scientists from the Provincetown Center
           for Coastal Studies, the New England Aquarium, and the Woods Hole
           Oceanographic Institution to obtain their views on the proposed
           gear-marking requirements and which markings would be most
           beneficial to assessing the effectiveness of gear modifications.
           We also interviewed representatives from the Maine Lobstermen's
           Association to obtain their views on gear-marking requirements.
           Finally, we interviewed marine fisheries law enforcement officials
           from the Massachusetts Executive Office of Environmental Affairs
           and the Maine Department of Marine Resources on gear-marking
           requirements and their current compliance evaluation strategies.

           We conducted our review from August 2006 through June 2007 in
           accordance with generally accepted government auditing standards.
			  
			  Appendix II: Comments from the Department of Commerce

Note: GAO comments supplementing those in the report text appear at the
end of this appendix.

See comment 2.

See comment 1.

See comment 8.

See comment 7.

See comment 6.

See comment 5.

See comment 4.

See comment 3.

See comment 11.

See comment 10.

See comment 9.

See comment 13.

See comment 12.

See comment 14.

GAO Comments

           The following are GAO's comments on the Deputy Secretary of
           Commerce letter dated July 5, 2007.
			  
                        1. We believe that the report reflects a wide variety
                        of input from a diverse group of stakeholders. For
                        this reason, we did not revise the report based on
                        this comment. As discussed in appendix I of the
                        report, we obtained input from stakeholders through
                        interviews, a review of relevant documents, and
                        attendance at meetings. We interviewed fishing
                        industry representatives from the Maine Lobstermen's
                        Association (MLA), the Massachusetts Lobstermen's
                        Association, and the Atlantic Offshore Lobstermen's
                        Association. We obtained the views of the Garden
                        State Seafood Association and the Downeast
                        Lobstermen's Association through the written comments
                        they submitted on the DEIS. We also interviewed
                        officials from Maine's and Massachusetts' state
                        marine agencies because 10 of the 15 communities that
                        the DEIS identified as "at-risk" as a result of the
                        projected economic impacts of the ALWTR plan
                        modifications are located in these two states. We
                        also interviewed a representative of the Humane
                        Society of the United States and marine mammal
                        scientists at the New England Aquarium, Woods Hole
                        Oceanographic Institution, the Provincetown Center
                        for Coastal Studies, and the Marine Mammal
                        Commission. Moreover, we obtained views from
                        scientists at the NMFS Northeast Fisheries Science
                        Center as well as the views of the NMFS gear research
                        team. We attended the annual meeting of the North
                        Atlantic Right Whale Consortium, a group that studies
                        and works to conserve North Atlantic Right Whales. We
                        also attended the December 2006 ALWTR Team meeting,
                        which included representatives from a wide range of
                        groups including trap and gillnet fishing groups,
                        conservation groups, federal and state agencies, and
                        academic/scientific organizations. Finally, we
                        reviewed all of the public comments submitted to NMFS
                        on the DEIS, which included comments from a wide
                        variety of government, scientific, industry, and
                        environmental groups.
                        2. We do not agree with National Oceanic and
                        Atmospheric Administration's (NOAA) contention that
                        the report appears to focus solely on the impacts to
                        the Maine fishing community. In addressing the first
                        and fourth objectives of the report, we broadly
                        describe the scientific basis for the proposed
                        changes to the ALWTR plan and evaluate the extent to
                        which NMFS has developed strategies for fully
                        assessing the effectiveness of and industry
                        compliance with the proposed changes. Our second
                        objective was to describe how NMFS plans to address
                        issues related to implementing the proposed changes
                        to the ALWTR plan, particularly in the rocky bottom
                        areas of the North Atlantic coast. These rocky bottom
                        areas are located primarily off of the coast of
                        Maine; and as a result, the report describes concerns
                        raised by Maine lobstermen regarding the
                        implementation challenges they believe they will
                        face. Finally, our third objective was to evaluate
                        the extent to which NMFS fully assessed costs to the
                        fishing industry and economic impacts on fishermen.
                        As NMFS stated in the DEIS, the lobster industry is
                        expected to bear more than $12.8 million of the
                        approximately $14 million annual cost of complying
                        with the proposed regulatory changes, and the
                        Atlantic lobster industry is primarily centered in
                        Maine and Massachusetts. Consequently, the report
                        includes concerns raised by Maine lobstermen about
                        NMFS's analysis of the costs of complying with the
                        proposed regulatory changes. For the reasons stated
                        above, we did not revise the report.
                        3. As stated in comment two, we do not believe that
                        the report focuses on one industry sector affected by
                        the ALWTR plan. Because we believe that the report
                        title is accurate and appropriate we did not revise
                        the report in response to this comment.
                        4. We did not rely heavily on the views of the MLA in
                        developing our finding and conclusions as NOAA
                        contends. As we stated in comment one, we made use of
                        information from a wide range of stakeholders in
                        developing our findings. Although the report clearly
                        places some emphasis on issues of concern to the
                        Maine lobster industry, we believe this is
                        appropriate given the objectives we were asked to
                        address in the report. As a result, we did not revise
                        the report in response to this comment.
                        5. We believe that the report adequately describes
                        the geographic extent of the proposed changes to the
                        ALWTR plan and the range of fisheries affected. In
                        addition, we reviewed comments on the DEIS submitted
                        by the Garden State Seafood Association and obtained
                        input from the Massachusetts Lobstermen's Association
                        and the Atlantic Offshore Lobstermen's Association
                        through interviews with their representatives. We
                        have revised the report to include specific comments
                        from the latter two groups.
                        6. As we noted in comment one, we interviewed a
                        representative from the Humane Society of the United
                        States and scientists from the New England Aquarium.
                        We also reviewed comments on the DEIS submitted by
                        the Ocean Conservancy and the International Wildlife
                        Coalition. Consequently, we did not revise the report
                        in response to this comment.
                        7. NOAA correctly states that our report identifies
                        instances in which NMFS could not provide
                        documentation for some of the estimates it used in
                        the economic analysis in the DEIS, including how the
                        lifespan of sinking groundline varied based on
                        interviews NMFS conducted. However, NOAA then
                        erroneously claims that we used statements from the
                        MLA to support the fact that the lifespan of sinking
                        groundline varied. We reported NMFS's contention that
                        the lifespan of sinking groundline varied, despite
                        the fact that it could not provide documentation of
                        the interviews it conducted. We also reported the
                        MLA's view that, based on its experience, the
                        lifespan of sinking groundline can range
                        substantially and could be shorter than the average
                        NMFS reported in the DEIS. For these reasons, we did
                        not revise the report in response to this comment.
                        8. As stated in comment one, we made use of
                        information from a wide range of stakeholders in
                        developing our findings, including those in the
                        science and environmental communities. However,
                        regarding the costs and economic impacts of gear
                        modifications, we relied on the views of the affected
                        fishermen because they have direct experience in this
                        area, whereas scientists and conversation groups
                        generally do not. Consequently, we did not revise the
                        report in response to this comment.
                        9. We do not agree that NOAA has adequately
                        represented the uncertainty in the data the agency
                        used to determine the costs of the proposed fishing
                        gear modifications. We believe that presenting its
                        estimates as single point values (for example, $14
                        million) rather than showing the range of possible
                        costs, implies a degree of preciseness that is
                        misleading and not supportable by the limitations and
                        sometimes lack of available data. Moreover, while, on
                        one hand, NOAA claims that it has adequately
                        addressed uncertainty, on the other hand, it goes on
                        to say that it is planning to clarify the variations
                        and uncertainties within its analysis contained in
                        the Final Environmental Impact Statement. This
                        clarification would discuss potential differences in
                        total compliance costs from variations in several of
                        the assumptions identified in our report. We believe
                        such clarification is needed and continue to believe
                        that presenting a range of possible costs would be
                        the best way to represent the uncertainty in the
                        analysis. For these reasons, we did not revise the
                        report in response to this comment.
                        10. We agree that gear loss and replacement and the
                        associated compliance costs could be higher or lower
                        than the average cost that NMFS reported in the DEIS
                        and that is why we recommended that NMFS represent
                        this uncertainty by presenting a range of possible
                        costs in its economic analysis. We did not recommend
                        applying higher gear loss and replacement rates to
                        the entire fishing industry as NOAA seems to suggest
                        in its comments. Therefore, we did not revise the
                        report in response to this comment.
                        11. We recognize that portions of Maine's state
                        waters are proposed to be exempt from the changes to
                        the ALWTR plan. This does not change the fact that
                        NMFS's gear research team estimated that gear loss
                        would vary by area of fishing operation and that,
                        according to the MLA, NMFS's estimates are likely to
                        be too low in Maine's rocky bottom areas that will be
                        subject to the new regulation. Furthermore, the
                        report does not attempt to identify a particular
                        level of uncertainty related to gear loss as NOAA
                        contends. For these reasons, we did not revise the
                        report in response to this comment.
                        12. We do not agree with NOAA's comment that markings
                        for identifying sinking groundline and gear in
                        exempted areas are not feasible or practical at this
                        time. In the DEIS, NOAA proposed requiring that
                        vertical line be marked. If such marking is feasible
                        and practical for vertical line, the same type of
                        marking should be feasible and practical for sinking
                        groundline. Many scientists we spoke to indicated
                        that sinking groundline should be marked.
                        Consequently, we did not revise the report in
                        response to this comment.
                        13. Because the draft report already included a
                        paragraph which discusses the status of efforts to
                        use "chip technology" to identify fishing gear,
                        including that NMFS believes that it is not yet ready
                        to be implemented, we made no changes in response to
                        this comment.
                        14. If NOAA is unable to complete its strategy for
                        assessing industry compliance prior to finalizing its
                        proposed regulations, we believe the agency should
                        have the strategy in place by the effective date of
                        the final regulations so that it is in a position to
                        evaluate the effectiveness of its regulatory changes
                        from their inception. We did not revise the report in
                        response to this comment.
			  
			  Appendix III: GAO Contact and Staff Acknowledgments
			  
			  GAO Contact

           Anu K. Mittal, Director, (202) 512-3841 or [email protected].
			  
			  Staff Acknowledgments

           In addition to the contact named above, Stephen D. Secrist,
           Assistant Director; John W. Delicath; Doreen S. Feldman; Nancy A.
           Hess; Justin M. Jaynes; Gregory A. Marchand, Mehrzad Nadji; Kelly
           Agnese Richburg; and Bruce Skud made key contributions to this
           report.
			  
			  GAO's Mission

           The Government Accountability Office, the audit, evaluation and
           investigative arm of Congress, exists to support Congress in
           meeting its constitutional responsibilities and to help improve
           the performance and accountability of the federal government for
           the American people. GAO examines the use of public funds;
           evaluates federal programs and policies; and provides analyses,
           recommendations, and other assistance to help Congress make
           informed oversight, policy, and funding decisions. GAO's
           commitment to good government is reflected in its core values of
           accountability, integrity, and reliability.
			  
			  Obtaining Copies of GAO Reports and Testimony

           The fastest and easiest way to obtain copies of GAO documents at
           no cost is through GAO's Web site ( [24]www.gao.gov ). Each
           weekday, GAO posts newly released reports, testimony, and
           correspondence on its Web site. To have GAO e-mail you a list of
           newly posted products every afternoon, go to [25]www.gao.gov and
           select "Subscribe to Updates."
			  
			  Order by Mail or Phone

           The first copy of each printed report is free. Additional copies
           are $2 each. A check or money order should be made out to the
           Superintendent of Documents. GAO also accepts VISA and Mastercard.
           Orders for 100 or more copies mailed to a single address are
           discounted 25 percent. Orders should be sent to:

           U.S. Government Accountability Office 441 G Street NW, Room LM
           Washington, D.C. 20548

           To order by Phone: Voice: (202) 512-6000
			  TDD: (202) 512-2537
			  Fax: (202) 512-6061
			  
			  To Report Fraud, Waste, and Abuse in Federal Programs

           Contact:

           Web site: [26]www.gao.gov/fraudnet/fraudnet.htm
			  E-mail: [27][email protected] Automated answering system: (800) 424-5454 or
           (202) 512-7470
			  
			  Congressional Relations

           Gloria Jarmon, Managing Director, [28][email protected] (202)
           512-4400 U.S. Government Accountability Office, 441 G Street NW,
           Room 7125 Washington, D.C. 20548
			  
			  Public Affairs

           Paul Anderson, Managing Director, [29][email protected] (202)
           512-4800 U.S. Government Accountability Office, 441 G Street NW,
           Room 7149 Washington, D.C. 20548

(360740)

www.gao.gov/cgi-bin/getrpt?GAO-07-881.

To view the full product, including the scope
and methodology, click on the link above.

For more information, contact Anu K. Mittal at (202) 512-3841or
[email protected].

Highlights of GAO-07-881, a report to the Ranking Member, Subcommittee on
Oceans, Atmosphere, Fisheries and Coast Guard, Committee on Commerce,
Science, and Transportation, U.S. Senate

July 2007

NATIONAL MARINE FISHERIES SERVICE

Improved Economic Analysis and Evaluation Strategies Needed for Proposed
Changes to Atlantic Large Whale Protection Plan

The National Marine Fisheries Service (NMFS) developed the Atlantic Large
Whale Take Reduction (ALWTR) plan to protect endangered large whales from
entanglements in commercial fishing gear, which can cause injury or death.
Because whales continued to die after the ALWTR plan went into effect,
NMFS proposed revisions in 2005. GAO was asked to review these proposed
revisions, including (1) their scientific basis and uncertainties
regarding their effectiveness, (2) NMFS's plans to address concerns about
the feasibility of implementing them, (3) the extent to which NMFS fully
assessed the costs to the fishing industry and impacts on fishing
communities, and (4) the extent to which NMFS developed strategies for
fully evaluating their effectiveness. GAO reviewed the proposed changes to
the ALWTR plan and obtained the views of NMFS officials, industry
representatives, scientists, and conservationists.

[30]What GAO Recommends

GAO recommends that NMFS revise its economic analysis to present a range
of possible costs, expand its proposed gear-marking requirements, and
develop a strategy to assess industry compliance. The agency reviewed a
draft of this report and did not agree to revise its economic analysis or
expand gear markings but did agree to develop a strategy to assess
industry compliance.

NMFS used scientific data on whale entanglements, scarification, and
sightings as support for its proposed changes to the ALWTR plan. These
data indicate that right and humpback whales are being injured and killed
by entanglements in commercial fishing gear at a rate that limits the
species' ability to recover. One of the key proposed changes to the ALWTR
plan involves replacing floating groundline, which forms arcs in the water
that can entangle whales, with sinking groundline that lies on the ocean
bottom. While there is a consensus among whale experts that using sinking
groundline will reduce risks to whales, uncertainties remain regarding how
many fewer serious injuries and mortalities will occur as a result of this
requirement.

NMFS has not yet resolved implementation issues associated with using
sinking groundline in rocky bottom areas, particularly off the coast of
Maine. While NMFS believes that it is operationally feasible to use
sinking groundline in all areas, it recognizes that fishermen may have to
modify their fishing practices to use this type of gear effectively. Maine
lobster industry representatives told GAO that fishermen who operate in
rocky bottom areas will not be able to use sinking groundline because it
will wear away and create safety hazards if the line snaps when it is
hauled.

NMFS's economic assessment of the costs of the proposed gear modifications
did not reflect the significant uncertainties associated with the
assessment, and the extent to which these costs to the fishing industry
could be higher or lower than reported is unclear. Because NMFS lacked
verifiable data for some of the key cost variables, it used estimates and
assumptions that introduced a significant amount of uncertainty into the
cost calculations, which the agency acknowledged. However, instead of
presenting a range of costs to account for these uncertainties, NMFS
produced a single estimate of compliance costs--about $14 million
annually. Moreover, because it lacked key data on fishermen's ability to
absorb these costs without going out of business, NMFS could not fully
assess the impacts that the cost of gear modifications would have on
fishing communities. For example, without knowing which specific fishermen
would go out of business, NMFS could not determine the impact lost jobs
would have on the communities in which they lived.

NMFS has not developed strategies for fully evaluating the effectiveness
of the proposed regulatory changes. Specifically, NMFS's gear-marking
requirements may not be adequate for effectively assessing future whale
entanglements because they do not include comprehensive markings that
researchers could use to assess the type of rope involved in
entanglements. Additionally, NMFS does not yet have a strategy to monitor
the level of industry compliance and therefore lacks a means to determine
whether any future entanglements are due to industry noncompliance with
the regulatory requirements or the ineffectiveness of the gear
modifications.

References

Visible links
  20. http://www.unh.edu/oe/
  21. http://moray.ml.duke.edu/faculty/read
  22. http://www.mainelobstermen.org/
  23. http://www.gao.gov/
  24. http://www.gao.gov/
  25. http://www.gao.gov/
  26. http://www.gao.gov/fraudnet/fraudnet.htm
  27. mailto:[email protected]
  28. mailto:[email protected]
  29. mailto:[email protected]
*** End of document. ***