In August 2016, NOAA Fisheries published a final rule implementing the fish and fish product import provisions of the Marine Mammal Protection Act (MMPA) (81 FR 54390; August 15, 2016). This rule establishes conditions for evaluating a harvesting nation’s regulatory programs to address incidental and intentional mortality and serious injury of marine mammals in fisheries producing fish and fish products exported to the United States. Under this rule, fish or fish products cannot be imported into the United States from commercial fishing operations that result in the incidental mortality or serious injury of marine mammals in excess of United States standards (16 U.S.C. 1371(a)(2)). The regulations apply to any foreign nation that exports fish and fish products to the United States, either directly or through an intermediary nation. Under these provisions, nations have been given a five-year exemption period, until January 1, 2022, to come into compliance with these requirements.
As part of the five-year exemption period, NOAA Fisheries published its final List of Foreign Fisheries (LOFF) for 2017. The LOFF classifies fisheries based on the frequency of marine mammal bycatch in commercial fisheries exporting fish and fish products to the United States. The LOFF will be updated in 2020 and can be found at: https://www.fisheries.noaa.gov/foreign/international-affairs/list-foreign-fisheries.
The LOFF classifies fisheries based on the frequency of marine mammal bycatch in commercial fisheries exporting fish and fish products to the United States. In order to develop the LOFF, NMFS identified harvesting nations with such commercial fishing operations and classified those fisheries based on their frequency of marine mammal interactions as either “exempt” or “export” fisheries. “Export fisheries” are foreign commercial fishing operations that have more than a remote likelihood of incidental mortality and serious injury of marine mammals in the course of its commercial fishing operations. “Exempt fisheries” are foreign commercial fishing operations that have a remote likelihood of, or no known, incidental mortality and serious injury of marine mammals in the course of commercial fishing operations. It is critical that harvesting nations review and understand the implications of the LOFF and the requirements of the MMPA import provisions.
After receipt of the LOFF, harvesting nations have until July 31, 2019 to submit a progress report to NMFS detailing their efforts to develop and implement regulatory programs for reducing incidental mortality and serious injury of marine mammals in these fisheries. Guidance for submitting a progress report will be provided early in 2019. NMFS will use information from this progress report to revise and publish an updated draft and final LOFF in 2020. All harvesting nations must apply for a comparability finding for all fisheries included in the LOFF by March 1, 2021. To continue exporting fish and fish products from these fisheries to the United States after January 1, 2022, all nations must have a comparability finding for all fisheries listed on the LOFF. The conditions to receive a comparability finding for export and exempt fisheries are set out in the rule in section 216.24(h)(6)(iii). Both exempt and export fisheries must obtain a comparability finding. Failure to receive a comparability finding for any fishery on the 7 LOFF will result in import prohibitions for the fish and fish products from that fishery beginning in January 2022.
Marine Mammal Protection Act Imports Rulemaking.