On August 11, National Marine Fisheries Service (“NMFS”) published proposed regulations implementing certain portions of Sections 101 and 102 of the Marine Mammal Protection Act (“MMPA”). These provisions prohibit the import of fish and/or fish products from nations whose export fisheries lack adequate protections guarding against incidental mortality or serious injury of marine mammals in the prosecution of those fisheries. Such protections will be deemed inadequate if an export fishery results in the incidental killing or serious injury of marine mammals in excess of US standards. The intent is to create a level playing field for US commercial fishermen who have been restricted in fishing techniques and gear types while foreign fishers have not been similarly regulated.
This article will be of interest if you are a government official of a harvesting, or non-harvesting intermediary, nation desiring to export fish or fish products to the US; if you are a participant in a non-US fishery and desire to export your product to US buyers; if you are a buyer of fish or fish products harvested outside of US waters; and/or a US commercial fisherman who is interested in what the government is doing to help level the playing field.
The proposed rule, as published in the Federal Register, is lengthy and detailed. We strive to present a readable and informative synopsis of the more import elements of the proposed rule. Should you have questions or wish to discuss this more in depth, please do not hesitate to contact us at your convenience.
The pertinent MMPA language, providing the impetus for these proposed regulations, is provided below:
Section 101(a)(2) – 16 USC §1371(a)(2) which reads, in part:
The Secretary of the Treasury shall ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States standards. For purposes of applying the preceding sentence, the Secretary—
(A) shall insist on reasonable proof from the government of any nation from which fish or fish products will be exported to the United States of the effects on ocean mammals of the commercial fishing technology in use for such fish or fish products exported from such nation to the United States;
Section 102(c)(3) – 16 USC §1372(c)(3) which reads, in part:
(c) Importation of illegally taken mammals
It is unlawful to import into the United States any of the following:
(3) Any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner which the Secretary has proscribed for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish.
The proposed regulations have three primary objectives:
- Establish conditions for evaluating a harvesting nation’s regulatory program for reducing marine mammal incidental mortality and serious injury in fisheries that export fish and fish products to the United States.
- Defines “comparability finding” and establishes procedures that a harvesting nation must follow, and conditions to meet, to receive a comparability finding for a fishery.
- Establish procedures for intermediary nations to certify that exports from those nations to the United States do not contain fish or fish products subject to an import prohibition.
Brief overview of US standards governing interactions with marine mammals in US commercial fisheries:
The immediate goal of the MMPA to ensure “the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate.” When enacted, the MMPA authorized the incidental take of marine mammals under a general permit which was granted when a marine mammal’s population would not fall below the optimum sustainable population for that species. Following a legal challenge to the concept of optimum sustainable population, the MMPA was amended by adding Sections 117 and 118. This is today’s standard governing the incidental take of marine mammals in commercial fisheries and centers on the concept of “Potential Biological Removal” which is, “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The potential biological removal level is the product of the following factors: (A) The minimum population estimate of the stock; (B) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; (C) A recovery factor of between 0.1 and 1.0.” It is as esoteric as it seems and a lengthy discussion of PBR is well beyond the scope of this document.
Prior regulations implementing the MMPA’s import provisions were limited to yellowfin tuna and fish and fish products caught with driftnets. These preexisting regulations found at 50 CFR 216.24 will be amended only to comply with the first primary objective stated above – to establish procedures and conditions for evaluating a harvesting nation’s regulatory program for reducing marine mammal incidental mortality and serious injury in its export fisheries and to determine whether the program is comparable in effectiveness to the U.S. regulatory program.
Also not addressed in this rule are preexisting protections for dolphins in the eastern tropical Pacific yellowfin tuna purse seine fisheries as well as marine mammal interactions in the high seas driftnet fisheries as these are regulated in other sections of the CFRs.
Terms defined as a result of this rulemaking:
Fish and Fish Product – any marine finfish, mollusk, crustacean, or other form of marine life other than marine mammals, reptiles, and birds, whether fresh, frozen, canned, pouched, or otherwise prepared in a manner that allows species identification, but does not include fish oil, slurry, sauces, sticks, balls, cakes, and pudding and other similar highly processed fish products.
Harvesting nation – the country under whose flag or jurisdiction one or more fishing vessels or other entity engaged in commercial fishing operations are documented, or which has by formal declaration or agreement asserted jurisdiction over one or more authorized or certified charter vessels and from such vessel(s) or entity(ies) fish are caught or harvested that are a part of any cargo or shipment of fish to be imported into the United States, regardless of any intervening transshipments, exports or re-exports.
Conditions for evaluating a harvesting nation’s regulatory program for reducing marine mammal incidental mortality and serious injury in fisheries that export fish and fish products to the United States.
Overview of the Proposed Process
Upon effectiveness of any regulations implementing the MMPA import provisions, there will be a one-time five-year exemption period. This will allow any harvesting nation adequate time to develop regulatory programs which support a comparability finding. Before the expiration of the exemption period, and every four years thereafter, the harvesting nation must apply for, and receive, a comparability finding for its fisheries in order to import fish and fish products from those fisheries. If, after expiration of the initial five-year exemption period, a harvesting nation OR fishery that has not previously exported to the US wishes to do so, it will be granted a 12-month provisional comparability finding during which time it will be required to obtain a comparability finding if it wishes to continue exporting after expiration of the 12-month provision time period. Securing a comparability finding is discussed below.
The proposed regulations do not require a harvesting nation to match every aspect of the US regulatory program; but rather, achieve comparable results. Provided adequate funding is available, NMFS is planning to offer consultations with harvesting nations to assist with design of marine mammal assessments and incidental mortality and serious injury mitigation programs.
List of Foreign Fisheries – Initial Identification and Classification
Each year NMFS submits a List of Fisheries which classifies domestic commercial fisheries into one of three Categories based on level of incidental mortality or serious injury to marine mammals. Through this regulation, NMFS proposes to prepare a similar benchmark for classifying foreign commercial fisheries exporting fish or fish products to the US. The initial List of Foreign Fisheries would be generated within one year from the effective date of these regulations. Fisheries listed will be deemed either “exempt fisheries” or “export fisheries” based on information provided by the harvesting nation. This initial designation is important in terms of what is necessary in order to obtain a comparability finding. Unfortunately, for many foreign fisheries, estimates of total incidental mortality and serious injury to marine mammals will likely be unavailable. As such, NMFS will initially classify a particular foreign fishery by analogizing it to a similar US fishery. If no analogous US fishery exists, the foreign fishery will be deemed an export fishery until reliable information is provided by the harvesting nation which warrants reclassifying the fishery. The List of Foreign Fisheries will be updated before the expiration of the exemption period and again every four years thereafter.
An “exempt fishery” is “a foreign commercial fishing operation determined * * * to have a remote likelihood of, or no known, incidental mortality and serious injury of marine mammals in the course of commercial fishing operations.” A fishery will be deemed an exempt fishery if it, collectively with other foreign fisheries exporting to the US, causes the annual removal of:
1. No more than 10% of any marine mammal stock’s bycatch limit, or
2. More than 10% of any marine mammal stock’s bycatch limit yet that fishery, by itself, removes no more than 1% of that stock’s bycatch limit annually, or
3. Where reliable information is unavailable, the Assistant Administrator may make the determination by evaluating fishing techniques, gear types, deterrence methods, target species, seasons and areas fished, logbooks or fisher reports, stranding data, the species and distribution of marine mammals in the area, or other factors at the discretion of the Assistant Administrator.
Exempt fisheries are equivalent to Category III fisheries in the List of Fisheries. While having to comply with the other requirements necessary to obtain a comparability finding, these fisheries do not have to meet the comparability finding requirement of having a regulatory program for incidental mortality and serious injury comparable in effectiveness to the U.S. regulatory program.
An “export fishery” is one found “to have more than a remote likelihood of incidental mortality and serious injury of marine mammals (ie – fails the three prong test included under exempt fishery above) in the course of its commercial fishing operations.”
Export fisheries considered equivalent to Category I or II fisheries in the List of Fisheries. In order to obtain a comparability finding, a harvesting nation’s export fisheries will have to show a regulatory program for incidental mortality and serious injury to marine mammals.
Consultations with Harvesting Nations
These were briefly alluded to under Overview of the Proposed Process above. Consultations will, generally, focus on:
1. Notification on the List of Foreign Fisheries
NMFS, in consultation with the State Department, will provide harvesting nations the final List of Foreign Fisheries, relevant U.S. regulations, and applicable take reduction plan measures that relate to its exempt and export fisheries. Should the harvesting nation choose, NMFS and the State Dept could assist that nation in developing a regulatory program which would likely satisfy the requirements of these proposed regulations.
2. Notification on a denial of a comparability finding
NMFS in consultation with the State Department and the Office of the US Trade Representative would provide advance notice to harvesting nations with fisheries unlikely to receive a comparability finding. The goal is to allow the harvesting nation to refute the preliminary findings. For those fisheries which do not receive a comparability finding – provide the reasons for the denial and identify potential corrective actions likely to result in a positive finding upon reapplication.
3. Discretionary consultations for transmittal or exchange of information
Defines “comparability finding” and establishes procedures that a harvesting nation must follow, and conditions to meet, to receive a comparability finding for a fishery.
As previously mentioned, to import fish or fish products into the US a harvesting nation must apply for and receive a comparability finding for its fisheries. Two parts to a comparability finding:
1. A prohibition against, or a reliable certification that its exports are not the product of, the intentional killing or serious injury of marine mammals in the course of commercial fishing operations in an exempt and export fishery unless it is imminently necessary in self-defense or to save the life of a person in immediate danger;
2. A regulatory program, comparable in effectiveness in reducing marine mammal incidental mortality and serious injury in commercial fishing operations, including for transboundary stocks. A “transboundary stock” is a marine mammal stock occurring in the EEZ or territorial sea of the United States and one or more other coastal States, or in the EEZ or territorial sea of the United States and on the high seas. Because US commercial fisheries are subjected to the stringent requirements of the MMPA regarding these transboundary stocks, fisheries from harvesting nations that also interact with these marine mammals should be held to substantially similar standards.
The proposed regulations provide a list of conditions required to issue a comparability finding. These differ depending on where the export fishery operates.
1. An export fishery operating within a harvesting nation’s EEZ or territorial sea
A regulatory program will be deemed comparable in effectiveness if it includes:
a. Marine mammal stock assessments for those stocks incidentally killed or seriously injured in the export fishery;
b. An export vessel register listing all vessels in the export fishery.
c. Regulatory requirements that include:
i. Reporting of mortality or serious injury of marine mammals; and
ii. Implementation of measures designed to reduce total incidental mortalities and serious injuries of a marine mammal stock below the bycatch limit.
d. Monitoring procedures by each export fishery and cumulative across all of its fisheries.
e. Establishment of bycatch limits for marine mammals in an export fishery
f. Methods to determine whether an export fishery exceeds the bycatch limit for a particular marine mammal stock and compares the cumulative impact on each marine mammal stock that interact with the export fishery and other export fisheries of the harvesting nature showing that the export fisheries:
i. Do not exceed the bycatch limit for that stock or stocks; or
ii. Exceeds the bycatch limit for that stock or stocks; but the specific export fishery being measured is being penalized as a result of the cumulative impact calculation. For example, assume export fishery A has 1 serious injury of a marine mammal in the course of prosecuting the fishery. Further assume, export fishery B has 5 serious injuries of other individuals in the same stock. If the bycatch limit is 4; export fishery A would not be penalized for the actions of export fishery B.
2. An export fishery operating within the jurisdiction of another coastal state
This is against the backdrop that international law provides that coastal states have sovereign rights to manage fisheries in their waters. The situation described here is when a costal state has permitted the fishing vessels of a different harvesting nation to fish its waters. A comparability finding will be granted (or renewed) where the harvesting nation’s regulatory program includes, or effectively achieves comparable results as:
a. Implementation in the export fishery:
Measures that reduce incidental mortality and serious injury to a stock on par with those facing US fisheries in US waters. This is without regard to the nature of the marine mammal stock – transboundary v resident.
b. For an export fishery not subject to management by a RFMO the harvesting nation:
i. Stock assessment of stocks interaction with the export fishery, a bycatch limit for that stock, an estimation of the incidental mortality and serious injury for each stock and assurances that this number will not exceed the bycatch limit.
ii. Methods to determine whether an export fishery exceeds the bycatch limit for a particular marine mammal stock and compares the cumulative impact on each marine mammal stock that interact with the export fishery and other export fisheries of the harvesting nature showing that the export fisheries:
A. Do not exceed the bycatch limit for that stock or stocks; or
B. Exceeds the bycatch limit for that stock or stocks; but the specific export fishery being measured is being penalized as a result of the cumulative impact calculation.
c. For an export fishery subject to management by a RFMO
Regulatory program similar in effectiveness to the US regulatory program.
3. An export fishery operating on the high seas
A comparability finding will be granted (or renewed) where the harvesting nation maintains a regulatory program regarding its export fisheries operating on the high seas that includes, or effectively achieves comparable results as:
a. Compliance with any intergovernmental agreement(s) or RFMO to which the US is a party in terms of data collection and conservation and management measures required thereunder.
b. Implementation in the export fishery:
Measures that reduce incidental mortality and serious injury to a stock on par with those facing US fisheries in US waters. This is without regard to the nature of the marine mammal stock – transboundary v resident.
Conditions for comparability finding determinations
It is not enough to simply adopt a regulatory program designed to meet the requirements of these proposed regulations. When reviewing a comparability finding application, information submitted by the harvesting nation as well as other readily available information will be evaluated. Whether the export fishery has reduced total incidental mortality and serious injuries below a bycatch limit will be strictly scrutinized.
Considerations in making a comparable in effectiveness determination:
1. Any US regulatory program for similar marine mammal stocks and similar fisheries including those transboundary stocks for which a take reduction plan has been implemented;
2. Measures implemented in the export fishery to reduce mortality and serious injury of a marine mammal stock below a bycatch limit;
3. Evidence indicating effectiveness of those measures. This is especially true of those fisheries which have a significantly higher number of incidental mortality or serious injury when compared to other export fisheries of the harvesting nation;
4. Relevant facts and circumstances – for example: history of marine mammal interactions in the export fishery, whether the bycatch limit for a stock is surpassed, population impacts to a stock from incidental mortality or serious injury in the harvesting nation’s export fisheries – especially for those stocks whose populations are trending downward;
5. Actions taken to reduce incidental mortality or serious injury of marine mammals by the harvesting nation, after consultation, and/or any intergovernmental agreement or RFMO;
6. Observer information as well as any relevant information received during consultations.
The following apply to export fisheries operating on the high seas covered by an intergovernmental agreement or RFMO to which the US is a party:
7. Harvesting nation’s record in abiding by measures agreed upon or adopted pursuant any intergovernmental agreement or RFMO relating to management and conservation of marine mammal stocks;
8. Is the harvesting nation a party or cooperating non-party to the RFMO; and
9. Whether the US has implemented or complied with such measures – or – whether the US has set standards higher than those required by any RFMO.
The following apply to export fisheries operating on the high seas covered by an intergovernmental agreement or RFMO to which the US is NOT a party:
10, Harvesting nation’s record in abiding by measures agreed upon or adopted pursuant any intergovernmental agreement or RFMO relating to management and conservation of marine mammal stocks. Do these measures offer protections to the stocks encountered by export fisheries in a manner similar to protections included in any US regulatory program;
11. Is the harvesting nation a party or cooperating non-party to the RFMO; and
12. Effectiveness of any additional measures implemented by the harvesting nation to reduce mortality and serious injury of marine mammals in its export fisheries and whether they are similar to measures applicable to US domestic fisheries.
Issuance or denial of a comparability finding
In general, those applications which are approved will be effective for the same four-year time frame or cycle. There may be instances where it will last less than four years if, for example, the initial application was denied but a subsequent application is approved mid-cycle. Applications, which could have been denied, can be approved for a shorter time frame to allow the harvesting nation time to show its regulatory program(s) are comparable in effectiveness. The proposed regulations also envision the development of new fisheries within a harvesting nation that are not included on the List of Foreign Fisheries.
If an application is denied, those fish or fish products will be subject to an import prohibition. The harvesting nation will be unable to import fish or fish products from that fishery into the US until the harvesting nation reapplies and is granted a comparability finding. There is no mandatory time period before which a harvesting nation may reapply. A certificate of admissibility may be required if a harvesting nation wishes to import the same or similar fish or fish products taken in a different fishery (i.e. if Nation A receives a comparability finding for its purse seine tuna fishery; but is denied a finding for its longline tuna fishery – a certificate of admissibility may be required for tuna landed by the harvesting nation’s purse seine fishery.)
Establish procedures for intermediary nations to certify that exports from those nations to the United States do not contain fish or fish products subject to an import prohibition.
Denial of a comparability finding for a fishery only means that the harvesting nation may not import fish or fish products harvested in that fishery to the US. It does not impact that nation’s ability to import fish or fish products from that fishery to other (intermediary) nations. As mentioned above, any intermediary nations must certify that its imports into the US do not contain fish or fish products which would otherwise be prohibited under these proposed regulations. An import into the intermediary nation occurs when the fish or fish product is released from a harvesting nation’s custom jurisdiction and enters the custom jurisdiction of the intermediary nation or when the fish and fish products are entered into a foreign trade zone of the intermediary nation for processing or transshipment.
The intermediary nation must certify that it:
1. Does not import, or offer to import, fish or fish products which are subject to an import prohibition; or
2. Has procedures in place that make this certification reliable.
Documentary evidence that must be submitted by the intermediary nation in making this certification:
1. In the last six months it has not imported fish or fish products that it has been told are subject to an import prohibition; or
2. That it has in place a tracking, verification or other scheme to reliably certify fish or fish products subject to an import prohibition will not enter the US.
NMFS will accept public comments until 5 PM on November 9, 2015. You can submit any comments electronically via the “Comment Now” button on www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2010-0098 or via mail by sending them to Director, Office of International Affairs, Attn: MMPA Fish Import Provisions, NMFS, F/IA, 1315 East-West Highway, Silver Spring, MD 20910
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All rights reserved
 Kokechik Fishermen’s Ass’n. v. Secretary of Commerce, 839 F.2d 795 (D.C. 1988).
 16 U.S.C. §1362(20)
 In order make such a determination, the Asst Admin must find the likelihood of incidental mortality and serious injury is ‘‘remote’’.
 See 50 CFR §229.12
 “Comparable in effectiveness” means that the harvesting nation’s regulatory program achieves comparable results to the US regulatory program. Factors NMFS will consider in making this determination are listed under Considerations for Comparability Finding Determinations below.
 Regional Fishery Management Organization – for example the Inter-American Tropical Tuna Commission or Western and Central Pacific Fisheries Commission