In our last post, we shared some of the alarming statistics regarding bycatch of marine mammals in global fisheries. This week, we describe what we are doing about it.
In 1972, Congress passed the Marine Mammal Protection Act (MMPA). Just as it had with the Clean Water Act—also passed in 1972—the Congress of that era designed the MMPA to respond aggressively to the destruction of nature. To that end, the MMPA prohibits the “taking” of marine mammals in U.S. waters and by U.S. nationals abroad, as well as trade in parts or products. With a notable exception —the killing of sea lions, ostensibly to protect endangered salmon runs (more on this in a future post) —this moratorium has been a consistent bulwark against the intentional killing of marine mammals in U.S. waters or by U.S. nationals.
So far, so good. But what about incidental killing and other forms of non-intentional take? Does the MMPA contain any provisions addressing problems?
Answer: Yes. When Congress enacted the MMPA, it recognized bycatch as a major threat to marine mammals. Accordingly, Congress included language requiring U.S. fisheries to drastically reduce bycatch.
In addition, given the amount of foreign-caught seafood sold in the U.S., Congress included a provision requiring similar bycatch performance by foreign fisheries importing to the U.S. Unfortunately, for want of implementing regulations, that provision has collected dust for over 40 years.
The good news: The National Marine Fisheries Service (NMFS) has finally proposed a rule to implement the import provision of the MMPA. More good news: on its own initiative, NMFS also added a prohibition on intentional killings in foreign fisheries. This inclusion is significant because it would not make sense to place restrictions on bycatch mortality without also prohibiting the intentional removal of marine mammals.
The bad news: The rule is far too forgiving and builds in opportunities for abuse by irresponsible fisheries.
To address these shortcomings, SSL has filed extensive comments with NMFS encouraging the agency to adopt a stronger rule consistent with the spirit and text of the MMPA. The following excerpt contains a summary of SSL’s major arguments:
The United States plays host to one of the world’s largest seafood markets. In 2013, the U.S. imported approximately 2.5 million metric tons of “edible” fishery products, valued at $18 billion. These numbers are just the latest in a trend of increasing seafood imports. This market share gives NMFS incredible leverage to protect marine mammals affected by foreign fisheries. NMFS is finally proposing a rule to apply this leverage.
Although SSL applauds NMFS for proposing this rule—and finds several aspects of the rule worthy of praise—the contemplated provisions fall short in several ways. First, with its five-year grace period, the rule stumbles out of the gate. Marine mammals are left helpless for half a decade while exporting nations—many if not all of which could comply in short order—are given a free pass. The carnage is then compounded by NMFS’ generosity in verifying continued compliance only once every four years.
Second, the proposed rule takes only a half-step toward eliminating the intentional killing of marine mammals. NMFS allows exporting nations to continue to intentionally kill marine mammals in commercial fishing operations (e.g. the Scottish practice of sniping seals in salmon farms) so long as they are able to segregate fish products destined for the U.S. This will be both difficult to police and of no benefit to the marine mammals that continue to be killed for export to other markets (with, it should be noted, the blessing of NMFS).
Third, the proposed rule disregards the precautionary principle in abandoning the “Zero Mortality Rate Goal,” which requires the reduction of incidental mortality or serious injury of marine mammals in the course of commercial fishing operations to insignificant levels approaching zero—a goal central to the MMPA’s conservation purpose. In its place, the rule substitutes an approach that focuses exclusively on the maximum number of individuals that can be killed without compromising the viability of the population as a whole—the Potential Biological Removal rate (PBR). Significantly, the accuracy of the PBR-based approach is only as reliable as the underlying data supporting it. Moreover, PBR only accounts for direct human-caused mortality of marine mammals. Thus, even if rigorously applied (which is doubtful given the vagaries of data collection and analysis on an international scale), the PBR-based approach fails to account for harmful indirect effects on marine mammal populations and other effects such as climate change.
Fourth, the proposed rule is weakened by its provisions governing comparability findings. Boiled down to the essentials, under these provisions, if a foreign fishery yields more marine-mammal bycatch than allowed under U.S. law (thus, not “comparable”), products from that fishery are not allowed to enter the U.S. market. A positive comparability finding, on the other hand, unlocks the door to the U.S. market. If NMFS is too quick to hand out the key, then the whole scheme is for naught. Unfortunately, the proposed rule comes dangerously close to doing just that. In addition to completely overlooking illegal, unreported, and unregulated (IUU) fishing (both as a proxy for weak enforcement of bycatch limits and for bycatch directly associated with IUU operations), the regulation as written calls for NMFS to assess comparability on the basis of suspect information, including untrustworthy data from Regional Fisheries Management Organizations and distorted calculations of PBR. Indeed, the proposed rule even goes so far as to authorize a comparability finding where a nation has done none of the following: (1) conduct a marine mammal stock assessment; (2) estimate bycatch; or (3) calculate a bycatch limit. The MMPA commands NMFS to assess comparability on the basis of “reasonable proof.”
Fifth, by failing to cover highly-processed fish products (like fish sauce and fish sticks), the rule contains a gaping hole. NMFS appears to believe that it would be too difficult to identify feedstock fisheries. However, NMFS offers no facts to back up this hunch, and the agency’s position is contradicted by the rule’s proposed approach to intentional-kill fisheries. If exporting and U.S. authorities are capable of distinguishing between salmon accompanied by intentional kills and salmon free of intentional kills, they should also be capable of policing the fisheries that feed into sauces and sticks. In any case, nothing in the statute allows this exception.
Finally, the proposed rule inappropriately authorizes partial certifications under two circumstances. First, it envisions a situation where a nation could have two or more fisheries for the same species, but where only one of those fisheries receives certification. Despite the obvious potential for intermixing—fraudulent and innocent alike—NMFS provides nothing in the way of safeguards. Second, NMFS would allow an intermediary nation (in the supply chain) to receive fish from a banned fishery and then export the same species of fish to the United States —and NMFS would do so without (again) articulating any concrete measures to prevent intermixing.
In sum, while the proposed rule represents a step in the right direction, it does not go far enough. The rule falls short of the basic requirements of the MMPA, all while creating major channels for what should be unlawful importation, opportunities for abuse, and a false sense of security. Marine mammals and the American public deserve better.
 NOAA Fisheries, Imports and Exports of Fishery Products, Annual Summary, 2013, available at http://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/index.
 MMPA, Sec. 101(a)(2).
 MMPA, Sec. 101(a)(2)(A).
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