Overview of MMPA Fishery Proposed Regulatory Options

August 30, 2010

In response to a petition filed by Turtle Island Restoration Network and Center for Biological Diversity seeking to enforce a longstanding provision of the Marine Mammal Protection Act (MMPA) by banning swordfish imports, the U.S. government is requesting comments on proposed standards to regulate all seafood products imported into the U.S. in compliance with the MMPA. The MMPA was enacted by the U. S. Congress in 1972 to address the imminent and dire threat that the worldwide commercial fishing industry imposed on marine mammal populations. However, the federal government for decades has failed to enforce a critical provision of the law, Section 101(a)(2). This law requires the U.S. government to “ban the importation of commercial fish or fish products that have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of marine mammals in excess of United States standards.” [16 U.S.C. § 1371(a)(2)].  Notably, the law requires the import-supplying nation to submit proof to the U.S. government that its seafood products meet U.S. marine mammal standards.

In order to define “United States standards” and establish a framework for finally implementing this provision, the National Marine Fisheries Services (NMFS) has proposed the following possible approaches in an advance notice of proposed rulemaking (RIN 0648–AX36): 1)    Apply standards found in existing MMPA marine mammal protection and bycatch reduction regulations to international fisheries seeking to sell seafood in the U.S. 2)    Apply existing Endangered Species Act (ESA) jeopardy criteria in assessing impacts of international fisheries seeking to sell seafood in the U.S. 3)    Evaluate whether international fisheries seeking to sell seafood to the U.S. have implemented their own regulations to address marine mammal bycatch that are comparable to regulations implemented by the U.S. 4)    A combination of two or more of these standards. Within these general management guidance principles, NMFS is currently requesting comments on nine specific possible options; five of the specific options relate to MMPA; two of the specific options derive from the ESA; two final options are derived from either high-seas or domestic fishery management regulations. NMFS is also seeking comment on the procedures that could be used to evaluate fisheries for compliance with U.S. standards, such as the processes detailed in the MMPA and high-seas driftnet treaty (HSDFMPA), including proof of compliance, consultation with non-complying nations, allowing time for fisheries to comply and prohibition of imports from non-complying fisheries.

In the case of every option NMFS is considering, the first step for determining whether an import-supplying nation has met U.S. standards must be to determine whether the nation has in place an independent fisheries observer program capable to producing robust, reliable data on the fishery’s bycatch.  Where data is lacking, the U.S. government may not assume that bycatch is not significant.  Rather, the U.S. must demand such data as a precondition to allowing import of the nation’s seafood and seafood products.

MMPA Options. – See MMPA at

Option 1: Evaluate whether marine mammal bycatch in import-supplying fisheries is maintained at a level below Potential Biological Removal (PBR) for marine mammal stocks. Preferred Option. We support using the PBR standard as the basic standard of compliance. The PRG is defined as the number of animals that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. In order to comply with the MMPA, a fishery must reduce and maintain marine mammal bycatch below the PBR for a given stock.

Option 2: Evaluate whether such bycatch has been reduced to insignificant levels approaching a zero mortality and serious injury rate to the extent feasible, taking into account different conditions.The MMPA requires U.S. commercial fisheries to reduce incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero mortality and serious injury rate. To comply with this standard, a fishery must reduce and maintain marine mammal bycatch at or below PBR levels and prioritize a goal of reaching zero mortality and serious injury. Under the MMPA, take reduction teams can be established to implement fishery management measures to reach these goals. We recognize that a number of domestic fisheries have yet to reach the zero mortality rate goal (ZMRG).  Therefore, we support using the PBR standard as the basic standard of compliance, particularly for fisheries the U.S. equivalents of which have not attained ZMRG.  However, both domestic and international fisheries must work toward the longer term goal of achieving ZMRG.

Option 3: Evaluate whether marine mammal bycatch in import-supplying fisheries is maintained at levels below PBR or at levels comparable to those actually achieved in comparable U.S. fisheries, whichever is higher. We do not support this option. Many but not all U. S. fisheries have met the MMPA requirements to reduce marine mammal bycatch at levels below PBR or approaching zero by-catch. The proposed Option 3 would allow fisheries that achieve bycatch levels comparable to U.S. fisheries to be considered compliant, even if the U.S. fishery itself were not meeting MMPA requirements. It is not clear if this would be an overall average, or fishery by fishery, or otherwise.

Option 4: Evaluate whether marine mammal bycatch in import-supplying fisheries either causes the depletion of a marine mammal stock below its optimum sustainable population or impedes the ability of a depleted stock to recover to its optimum sustainable population. We do not support this option as a basic standard for compliance. We could support this evaluation as a supplemental consideration to Option 1 if the following conditions were met: (1) NMFS were to base its evaluation of whether an import-supplying nation’s bycatch reduction is “commensurate” with U.S. bycatch reduction measures on rigorous statistical modeling using reliable, independent observer data, and (2) such modeling demonstrated that the nation is meeting the basic PBR standard. Domestically, the U. S. manages marine mammal bycatch based on PBR levels to achieve the goal of allowing marine mammal stocks to reach or maintain their optimum sustainable populations. Replacing that standard with this proposed option would place a significantly less defined and less stringent requirements on import-supplying fisheries than those placed on domestic fisheries.

Option 5: Relying on standards from MMPA emergency regulations, evaluate whether bycatch in import-supplying fisheries has, or is likely to have, an immediate and significant adverse impact on a marine mammal stock. Under the MMPA, the NMFS can take emergency actions to reduce marine mammal bycatch in a fishery depending on whether take reduction teams are in place, being developed or not in place. Provisions related to fisheries without take reduction teams rely on consultation with several U.S. agencies including fishery councils. However, because these entities do not exist for foreign fisheries, most of these provisions would not apply. Therefore, this option does not seem to translate entirely to the international management context.  However, we agree that NMFS should be given the authority and mandate take emergency measures to ban certain fisheries or impose immediate changes to reduce marine mammal bycatch while protective measures are being developed.

ESA OPTIONS Option 6:  Evaluate whether bycatch in import-supplying fisheries is likely to jeopardize the continued existence of any endangered or threatened marine mammal species. For this option, NMFS is also considering whether and how to apply such possible standards uniformly to bycatch of foreign or international marine mammal species that are endangered or threatened, but have not been evaluated or listed under the ESA. The MMPA was designed to ensure the conservation of vibrant marine mammal populations as well as to prevent harm to individual animals. The MMPA therefore sets a more protective standard than the ESA by keeping populations well above the level of jeopardy. In keeping with the MMPA’s intent, NMFS should primarily base it regulatory definition of U.S. standards on those set forth by the MMPA, as in Options 1 and 2 above While the standards found in the MMPA itself should be used to measure compliance of import-supplying fisheries, the threatened or endangered status of marine mammals caught in a foreign fishery could provide a means to prioritize enforcement. In addition, measures implemented in the U.S. to protect ESA-listed marine mammals can provide useful ideas for protective measures in foreign fisheries.

Option 7:  Evaluate more broadly whether bycatch by import-supplying fisheries is likely to jeopardize the continued existence of a marine mammal species. This assessment could be beneficial in prioritizing enforcement of MMPA section 101(a)(2), but does not provide the appropriate standard for determining whether an import-supplying nation has met the standards set forth under the MMPA.  Those standards are provided by Options 1 and 2.  However, it may be useful for the agency to consider whether a given type of gear or a specific fishery is likely to jeopardize the continued existence of any marine mammal species when the agency is prioritizing which imports must be banned most urgently.

Other Options  - Option 8:  Evaluate whether marine mammal bycatch in a foreign nation’s import-supplying fisheries is managed effectively by a relevant international fisheries management or conservation organization, or by the fishing nation itself. We oppose this option, as it provides neither a relevant “U.S. standard” nor an effective measure of a foreign fishery’s impact on marine mammals. International treaties are often not well implemented or rigorous enough to protect marine mammals from bycatch. While an evaluation could be beneficial, standards for determining compliance with the MMPA should not be based on international fisheries agreements, which tend to have only very general bycatch reduction requirements and are rarely enforced. Moreover, the MMPA itself refers to U.S. standards, which are plainly derived from U.S. law.

Option 9:  Evaluate whether foreign nations that supply fish and fish product imports to the U.S. have implemented regulations to address marine mammal bycatch in the nations’ import-supplying fisheries that are comparable to regulations implemented by the U.S., taking into account different conditions. We oppose this option. Without first defining U.S. standards, determining whether import-supplying nations have “comparable” regulations would likely be a difficult and circular exercise.  While such an evaluation could be beneficial in determining what particular measures may be sufficient or effective in meeting the basic standards of working towards ZMRG and maintaining bycatch at or below PBR, it does not in itself provide a standard by which to judge overall compliance. Summary of Options for Procedures to Enforce Fishery Compliance with MMPA NMFS is considering a process with four components for evaluating bycatch in foreign import-supplying fisheries that would integrate processes from the MMPA (Sections 117 and 118) and the HSDFMPA (Section 610).

  1. Step 1: Nations provide proof of impact of those fisheries on marine mammals. Reasonable proof would be information that indicates a nation meets U.S. marine mammal bycatch standards. We support this process, as this basic information is clearly required under the MMPA. In order to meet U.S. standards, “reasonable proof” must be provided by robust, reliable data derived from an independent fisheries observer program.
  2. Step 2: Initiate consultation with nations that don’t or can’t provide proof and/or meet MMPA standards. Consultation is broadly defined to be consistent with the process delineated in the high seas drift gillnet treaty. We support a brief and finite consultation process. However, where available information indicates that a fishery is having a significant adverse impact on marine mammals and the nation cannot or will not provide information to demonstrate otherwise, the prohibition on imports from that fishery should be put in place immediately.
  3. Step 3: Allow time for consultation and proof of compliance to be completed. As noted above, time for consultation should be limited and related to the fishery’s impacts on marine mammals. Where a fishery is known to have significant adverse impacts on marine mammals and the nation cannot or will not provide information to demonstrate otherwise, imports provided by that fishery should be banned immediately and consultation begun to reform the fishery. The ban should not be lifted until consultation is completed and measures implemented to meet the MMPA standards.
  4. Step 4: Prohibit import of fish and fish products from nations that fail to comply after consultation. We support this step and again urge that consultations be brief, clearly delineated and finite. Intermediary nations NMFS is proposing an approach similar to that required with respect to yellowfin tuna and yellowfin tuna products, whereby that intermediary nations that don’t fish but re-export fish must certify and provide reasonable proof that they have not imported within the preceding six months any fish or fish products that are subject to a U.S. import ban. We support the application of this approach to other fisheries. We urge NMFS to proceed expeditiously with a formal rulemaking to implement and enforce MMPA section 101(a)(2), as described above.  Final regulations implementing this law are vital to ensuring that the core purposes of the MMPA are met and that imports from harmful international fisheries, such as longline and gillnet fisheries targeting swordfish, are swiftly prohibited and these fisheries eventually reformed.