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Marine Mammal Protection Act (MMPA) Rulemaking - International Provisions

Section 101(a)(2) of the MMPA states: 
“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 101(a)(2) applies to marine mammal bycatch resulting from commercial fishing (e.g. it is not applicable to directed whaling); and unlike the High Seas Driftnet Moratorium Protection Act, any potential import restrictions are applicable to fisheries occurring either on the high seas or within a nation’s exclusive economic zone.  Regulations to implement Section 101(a)(2) were first promulgated in 1974 and since 1991 have focused solely on import requirements related to yellowfin tuna captured in purse seine fisheries and fish taken in high seas driftnet fisheries.

In March 2008, NOAA Fisheries received a petition from the Center for Biological Diversity and Turtle Island Restoration Network to initiate rulemaking to ban the importation of swordfish and swordfish products into the United States from nations whose bycatch of marine mammals exceeds U.S. standards.  NOAA Fisheries published a notice of receipt of the petition on December 15, 2008, and contacted every nation that exported swordfish to the United States and invited them to comment.  Over 40,000 comments were submitted by the public, environmental and industry groups, members of Congress, and swordfish exporting nations.

In 2010, NOAA Fisheries solicited public comments regarding how to define “United States standards” and implement this provision of the MMPA.  We received comments from roughly 30 nations, the Marine Mammal Commission, and a number of environmental and commercial fishing industry organizations. The majority of comments from organizations and individuals supported implementing the MMPA import provisions through a prohibition on imports of certain fish and fish products, using the MMPA as the basis for the United States standards, and NMFS’ broadening the scope of its response to the petition to encompass all fish imports.

in 2015, MMPA received and considered comments from its  proposed rule to implement the MMPA import provisions.

In August 2016, NOAA Fisheries  issued a final rule implementing import provisions of the Marine Mammal Protection Act

This rule implements aspects of the Marine Mammal Protection Act that aim to reduce marine mammal bycatch associated with international commercial fishing operations, by requiring nations exporting fish and fish products to the United States to be held to the same standards as U.S. commercial fishing operations.

The rule also establishes the criteria for evaluating a harvesting nation’s regulatory program for reducing marine mammal bycatch and the procedures required to receive authorization to import fish and fish products into the United States. To ensure effective implementation, the rule establishes a 5 year exemption period to allow foreign harvesting nations time to develop, as appropriate, regulatory programs comparable in effectiveness to U.S. programs. This rule marks a significant step forward in the global conservation of marine mammals and expanding international collaboration for best stewardship.