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Imports of Fish and Fish Products to be Banned from Fisheries with Excessive Bycatch

The National Oceanic and Atmospheric Administration has issued a final rule that, effective 1 January 2017, will revise its regulations to implement the import provisions of the Marine Mammal Protection Act. NOAA states that under this rule U.S. trading partners will need to show that killing or injuring marine mammals incidental to fishing activities (bycatch) in their export fisheries do not exceed U.S. standards. There will be an initial five-year exemption period to give nations time to assess their marine mammal stocks and estimate and lower their bycatch.

Among other things, this rule establishes procedures and conditions for evaluating a harvesting nation’s regulatory programme addressing marine mammal incidental mortality and serious injury in fisheries that export fish and fish products to the United States to determine if it is comparable in effectiveness to the U.S. regulatory programme (even if it uses different mechanisms). Harvesting nations will be required to apply for and receive, every four years (after the initial five-year exemption period), a comparability finding for each fishery identified by NOAA in the List of Foreign Fisheries to export fish and fish products to the United States. Notably, imports of fish and fish products from fisheries that do not receive a comparability finding or have had a previous finding terminated will be banned. Any such import prohibition will become effective 30 days after publication of a notice in the Federal Register announcing the comparability finding and will only apply to fish and fish products caught or harvested in that fishery.

NOAA, in consultation with the U.S. Department of State and the Office of the U.S. Trade Representative, will consult with harvesting nations that fail to receive a comparability finding for a fishery, provide the reasons for the denial, and encourage the harvesting nation to take corrective action and reapply for a comparability finding. A harvesting nation may, at any time, reapply for or request the reconsideration of a denied comparability finding for a fishery and submit documentary evidence in support of such application or request.

Harvesting nations will have to follow certain procedures and meet certain conditions to receive a comparability finding. For export fisheries operating within a harvesting nation’s exclusive economic zone or the territorial waters of that nation, the conditions include:

  • marine mammal stock assessments that estimate population abundance for marine mammal stocks in waters under its jurisdiction that are incidentally killed or seriously injured in the export fishery;
  • an export fishery register containing a list of all vessels participating in the export fishery under the jurisdiction of the harvesting nation, including the number of vessels participating and information on gear type, target species, fishing season and fishing area;
  • various regulatory requirements (e.g., including copies of relevant laws, decrees and implementing regulations or measures);
  • implementation of monitoring procedures in export fisheries designed to estimate incidental mortality and serious injury of marine mammals in each export fishery under its jurisdiction, as well as estimates of cumulative incidental mortality and serious injury for marine mammal stocks in waters under its jurisdiction that are incidentally killed or seriously injured in the export fishery and other export fisheries with the same marine mammal stock, including an indication of the statistical reliability of those estimates;
  • calculation of bycatch limits for marine mammal stocks in waters under its jurisdiction that are incidentally killed or seriously injured in an export fishery; and
  • comparison of the incidental mortality and serious injury of each marine mammal stock or stocks that interact with the export fishery in relation to the bycatch limit for each stock, as well as comparison of the cumulative incidental mortality and serious injury of each marine mammal stock or stocks that interact with the export fishery and any other export fisheries of the harvesting nation showing that these export fisheries (i) do not exceed the bycatch limit for that stock or stocks, or (ii) exceed the bycatch limit for that stock or stocks but the portion of incidental marine mammal mortality or serious injury for which the exporting fishery is responsible is at a level that, if the other export fisheries interacting with the same marine mammal stock or stocks were at the same level, would not result in cumulative incidental mortality and serious injury in excess of the bycatch limit for that stock or stocks.

For export fisheries operating within the jurisdiction of another state, the conditions include:

  • with respect to any transboundary stock interacting with the export fishery, any measures to reduce the incidental mortality and serious injury of that stock that the United States requires its domestic fisheries to take with respect to that transboundary stock; and
  • with respect to any other marine mammal stocks interacting with the export fishery while operating within the jurisdiction of the state, any measures to reduce incidental mortality and serious injury that the United States requires its domestic fisheries to take with respect to that marine mammal stock.

The rule allows NOAA to consider, during the initial five-year exemption period, an emergency ban on imports of fish and fish products from an export or exempt fishery that are having or are likely to have an immediate and significant adverse impact on a marine mammal stock. In addition, it establishes provisions for intermediary nations to ensure that they do not import and re-export to the United States fish or fish products subject to an import prohibition.

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