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Understanding the Proposed Settlement with NOAA Fisheries on the Import Provisions of the Marine Mammal Protection Act

The Marine Mammal Protection Act (MMPA) was enacted on October 21, 1972. One of the provisions of the MMPA, codified at 16 U.S.C. § 1372(c)(3), made it unlawful to import “any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner which the [federal government] has proscribed for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish.” Another provision of the MMPA, codified at 16 U.S.C. § 1371(a)(2), requires the federal government to “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.” 

In result, for over fifty years, U.S. law has prohibited the importation of any seafood caught in a manner that is inconsistent with the regulations imposed on American commercial fishermen to protect marine mammals.

This rule is rooted in a notion of fundamental fairness: American fishermen who must operate under restrictions imposed to protect marine mammals should not be forced to compete for sales in the U.S. market against foreign fishermen who face no similar limitations. Further, protecting migratory marine mammals from harm in U.S. waters, but welcoming seafood from foreign commercial fishing industries that kill those same marine mammals while outside of U.S. waters makes little sense.

Nevertheless, in more than a half century, NOAA Fisheries has not meaningfully enforced this rule and the United States routinely and regularly imports seafood harvested in a manner that would be unlawful if done in U.S. waters. In 2016, the federal agency issued a final rule implementing the import provisions of the MMPA (81 Fed. Reg. 54,390, Aug. 15, 2016), but announced that it would “allow a one-time only, initial five-year exemption period,” delaying enforcement of any import prohibition. Subsequently, in 2020, NOAA Fisheries announced that the “one-time only” exemption period would be extended by an additional year (85 Fed. Reg. 69,515, Nov. 3, 2020). Then, in 2022, NOAA Fisheries announced that the “one-time only” exemption period for the import prohibitions would be extended by yet another year (87 Fed. Reg. 63,955, Oct. 21, 2022). A year later, NOAA Fisheries announced that the “one-time only” exemption period would be extended by another two years, with import prohibitions to take effect after the expiration of the period on December 31, 2025 (88 Fed. Reg. 80,193, Nov. 17, 2023). Through this process, NOAA Fisheries gave itself almost a full decade to determine whether foreign fisheries which export seafood to the United States met the same standards as American fishermen.

NOAA Fisheries has argued that this extended period of time is necessary because the agency received 134 applications for “comparability findings” from countries involving roughly 2,500 different foreign fisheries. Although the agency has admitted that certain foreign fisheries that export seafood to the United States did not seek comparability findings and, as such, cannot demonstrate that they operate under similar standards as those required of American fishermen, NOAA Fisheries has taken no action to stop importation of seafood from those fisheries.

In August of 2024, the Animal Welfare Institute, the Center for Biological Diversity, and the Natural Resources Defense Council, Inc. filed suit against NOAA Fisheries at the U.S. Court of International Trade challenging the agency’s failure to implement the import prohibitions of the MMPA (Natural Resources Defense Council v. Raimondo, Court No. 24-cv-00148). On January 16th, the plaintiffs and government filed a joint stipulation of dismissal of the lawsuit, explaining that the United States government had agreed to “pay plaintiffs $75,000 in full and complete satisfaction of any and all claims” and to implement the prohibition of importation of non-compliant seafood on January 1, 2026 – the day after the date that NOAA Fisheries already indicates, at 50 C.F.R. § 216.3, that the exemption period ends. 

The stipulation of dismissal further indicates that, on December 16, 2024, NOAA Fisheries issued notifications to “all harvesting nations that did not submit an application for a comparability finding” and “all harvesting nations that [NOAA Fisheries] has already preliminarily determined will be denied a comparability finding for all of their fisheries” informing them that they would receive yet another opportunity to “submit reliable information to refute the preliminary denial on or before March 1, 2025.” Additionally, NOAA Fisheries is also issuing notifications providing an additional opportunity to provide information to harvesting nations that have received preliminary denials for one or more (but not all) of their fisheries by no later than April 1, 2025. After that, the stipulation of dismissal holds that by September 1, 2025, NOAA Fisheries will issue final “comparability findings for all harvesting nations . . .”

The stipulation of dismissal – proposing a settlement that would require NOAA Fisheries to do what the agency already says it will do under existing regulations – has not yet been acted upon by the Court of International Trade. Instead, on January 23rd, the Court asked the parties to file a joint submission by February 3rd that (1) comments on how the Court could retain jurisdiction over the case and enforce the settlement if the lawsuit was dismissed; (2) explains how the parties envision any remedies that might be sought to enforce the settlement; and (3) estimates “[h]ow many separate final comparability findings . . . will be issued by [NOAA Fisheries] between now and September 1, 2025?”

Yet, despite all the complexity and complications, NOAA Fisheries appears to finally be on a path to actually implement a requirement that has been in the law for over fifty years. Like the Section 609 law that has been administered by the U.S. Department of State requiring foreign commercial shrimp industries to adopt measures to protect sea turtles in line with the requirements imposed on U.S. shrimpers, the MMPA import provisions should both increase the protection of endangered species and create a more level playing field for American fishermen.

“Shrimpers and all other American commercial fishermen have worked under NOAA Fisheries’ strict enforcement of the Marine Mammal Protection Act for decades,” said John Williams, the Executive Director of the Southern Shrimp Alliance. “Yet, even though our law imposes the same standard on both of us, NOAA Fisheries has been giving our foreign competitors a pass. This America Last approach must end and U.S. commercial fishermen must ensure that the import provisions of the MMPA are finally enforced.”

Read the Stipulation for Dismissal (Jan. 16, 2025) filed jointly by the parties in Natural Resources Defense Council, Inc. v. Raimondo, Court No. 24-cv-00148 (U.S. Court of International Trade) here:  https://shrimpalliance.com/wp-content/uploads/2025/02/NRDC-Stipulation-of-Dismissal.pdf

Review the U.S. Court of International Trade’s letter to the parties (Jan. 23, 2025) in Natural Resources Defense Council, Inc. v. Raimondo, Court No. 24-cv-00148 (U.S. Court of International Trade) here: https://shrimpalliance.com/wp-content/uploads/2025/02/Judge-Katzmann-Questions-on-NRDC-Settlement.pdf

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