After 43 years and some legal prodding, the United States is preparing to use its economic and political power to protect whales, dolphins and other marine mammals around the world.
On Monday, the National Oceanic and Atmospheric Administration is scheduled to publish regulations that will set up a system to ban imports of seafood from any country that fails to control the killing of marine mammals in its fishing industry.
To avoid a ban, foreign controls must be as effective as standards adopted by the United States to reduce the incidental death and injury to marine mammals in the U.S. fishing industry. Harvesting nations that wish to continue selling fish and fish products to U.S. markets will have five years to implement their marine mammal protection programs, if they have not already done so.
When it was first approved by Congress in 1972, the Marine Mammal Protection Act included provisions that would ban imports of fish caught in commercial fisheries where the “bycatch” of marine mammals exceeded U.S. standards. But the law was largely ignored until environmental groups filed a lawsuit against NOAA two years ago. The lawsuit was eventually settled, with NOAA agreeing to approve new rules by August of this year.
NOAA estimates that 650,000 marine mammals are killed each year in fishing operations. Meanwhile, U.S. consumers obtain 94 percent of their seafood from a growing import market valued at $33 billion in 2013.
“The new regulations will force countries to meet U.S. conservation standards if they want access to the U.S. market, saving thousands of whales and dolphins from dying on hooks and in fishing nets around the world,” said Sarah Uhlemann, international program director for the Center for Biological Diversity. “The U.S. government has finally recognized that all seafood consumed in the United States must be ‘dolphin-safe.’”
Comments were made in a joint news release from the Center for Biological Diversity, the Natural Resources Defense Council and the Turtle Island Restoration Network — the three groups that brought the lawsuit.
The new regulatory program on imports calls on NOAA Fisheries to issue a “comparability finding” after harvesting nations demonstrate that they have a regulatory program that meets U.S. standards for protecting marine mammals. Each program must prohibit the incidental killing or serious injury to marine mammals in all fisheries, estimate numbers of marine mammals on their fishing grounds and find ways to reduce harm if established limits are exceeded.
Over the next year, the regulations call for NOAA Fisheries to request information on marine mammal bycatch from countries that export to the U.S. On a list of foreign fisheries, each fishery will be classified either as “export” or “exempt.” Exempt fisheries are determined to have a remote chance of killing marine mammals, so they are not required to have a regulatory protection program. Those fisheries likely to impact marine mammals and those lacking information about impacts are placed in the export category. All fisheries must prohibit intentional killing of marine mammals to receive certification.
At the end of the five-year period, NOAA Fisheries will publish a list of fisheries that will not receive a comparability finding along with a list of fish banned from import. Those countries will receive information about why they were denied certification and are eligible to reapply at any time. Other details are outlined in a fact sheet from NOAA Fisheries.
The U.S. Marine Mammal Commission, a group appointed by the president to advise the government on the Marine Mammal Protection Act, welcomed the long-overdue regulations to protect marine mammals throughout the world, but said the five-year implementation period is too long. See comments, Nov. 9, 2015. (PDF 1.4 mb):
“Inasmuch as this is an ongoing, long-standing statutory requirement, the Commission does not see a legal basis for deferring implementation. To the extent that any delay can be countenanced, it should be kept to the absolute minimum necessary to secure the required information from exporting countries.
“The Commission is concerned that the proposed delay would result in at least another six years during which seafood could continue to be imported into and sold in the United States, despite unacceptably high levels of marine mammal bycatch, unbeknownst to U.S. consumers, and during which U.S. fleets would face unfair competition from foreign fleets with little or no accountability to follow comparable marine mammal conservation measures.”
In 1988, while the U.S. was developing new fishing standards to protect marine mammals, U.S. fishermen were required to report the type of gear they were using and any incidental catch of marine mammals, the Marine Mammal Commission noted. Fishermen also were required to allow observers on their boats while the agency developed stock assessments and new rules to protect various species of marine mammals. Those kinds of interim measures should be required of foreign fleets as well, the commission said.
Among its many comments when the rule was first proposed last year, the commission criticized the plan for placing too much burden on NOAA Fisheries to gather the information, rather than requiring the importing countries to document their protections for marine mammals.
“The Commission further recommends that the final rule clearly specify that nations be issued a CF only if they meet the U.S. standards, rather than be issued a CF unless it is shown that they do not meet the applicable requirements.”
As far as I can tell, the final rule failed to incorporate most of the commission’s suggestions. Still, using the economic and political power of the U.S. to protect marine mammals around the world is a considerable leap.
While the new regulations are expected to level the playing field for U.S. fishermen who must comply with marine mammal protections, we have yet to see the full response from other countries. At some point, a ban on U.S. imports is likely to trigger a challenge based on existing international trade agreements. I haven’t seen much written about the legal implications of the new marine-mammal-protection rules, but we have seen what can happen. Review the article by Mark J. Robertson about “dolphin-safe” tuna rules in a report for the International Centre for Trade and Sustainable Development.