Fishing Rule Aims To Do For All Marine Mammals What It Did For The Dolphin

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The vaquita is a small porpoise found only in the northern Gulf of California, in Mexico. Today, the species is critically endangered, with less than 60 animals left in the wild, thanks to fishing nets to catch fish and shrimp for sale in Mexico and America. The animal is an accidental victim of the fishing industry, as are many other marine mammals.

But a new rule that takes effect this week seeks to protect marine mammals from becoming bycatch. The rule requires foreign fisheries exporting seafood to the U.S. to ensure that they don't hurt or kill marine mammals.

If U.S. authorities determine that a certain foreign fishery is harming these mammals, the fishery will be required to take stock of the marine mammal populations in places where they fish, and find ways to reduce their bycatch. That could involve not fishing in areas with high numbers of marine mammals. Fisheries will also have to report cases when they do end up hurting mammals. This is what American fisheries are already required to do under the Marine Mammal Protection Act (MMPA).

Up to 90 percent of seafood eaten in the U.S. is imported, most of it shrimp, freshwater fish, tuna, and salmon. The goal of the new rule is to ensure that seafood coming into the country didn't harm or kill marine mammals.

But can this new rule protect the vaquita?

Zak Smith, a senior attorney with the Marine Mammal Protection Project at the Natural Resources Defense Council, thinks so. The vaquita is kind of a poster child for what happens when you don't have this law in place," he says.

To understand the potential impact of the rule, Smith says, we should consider the laws that saved dolphins from tuna fisheries. For decades, dolphins – which swim with schools of tuna – were accidentally (and sometimes deliberately) killed by tuna fisheries. According to NOAA, over six million dolphins have been killed since the beginning of tuna fishery. Enacted in 1972, the MMPA required tuna fisheries to take measures to stop harming dolphins. Then, in the 1980s, the act was amended to ban the import of tuna from foreign fisheries that harmed dolphins. In 1990, the U.S. passed another legislation – the Dolphin Protection Consumer Information Act – that spelled out requirements for "dolphin-safe" labeling on all tuna sold in America.

Smith says these laws have helped reduce dolphin deaths. But the new rule goes even further, he says, because it applies to all kinds of seafood and all marine mammals, not just tuna and dolphins.

As an American consumer, "I'll know that anything I purchase in the U.S. met U.S. standards," he says.

A 2014 analysis from the NRDC estimated that hundreds of thousands of marine mammals are injured or killed every year by fisheries around the world. The U.S. government's independent Marine Mammal Commission says unintentional encounters with fishing gear represent "the greatest direct cause of marine mammal injury and death in the United States and around the world."

So the new rule could help protect many marine mammals worldwide, says John Henderschedt, the director of the National Oceanic and Atmospheric Administration's (NOAA) Fisheries Office of International Affairs. He says in some fisheries around the world, fishermen use nets that whales and dolphins easily get caught in. And some fishermen won't take the time to make sure entangled marine mammals are released safely, he says.

He adds that for some fisheries, the new rule will make them take stock of their marine mammal populations, and think about how to protect those animals for the very first time.

The new rule is good for American fisheries too, says Ryan Steen, a lawyer representing the Hawaii Longline Association. "If U.S. fisheries are going to be subject to the standards that are set by the [Marine Mammal Protection Act], then I think it's only fair that their foreign competitors would also be subject to the same standards if they're delivering fish into U.S. markets," he says. "It's the fair thing to do and it's the right thing to do."

But implementing the new rule could be tricky, cautions Linda Fernandez, an environmental economist at Virginia Commonwealth University. For example, the World Trade Organization could object to any bans on imports from a seafood exporter, she says.

Fernandez says the push for dolphin-safe tuna holds a good lesson in this. In 1990, the U.S. banned tuna imports from Mexico because Mexican tuna fisheries didn't meet American standards for protecting dolphins. The decision upset Mexico and it complained to the General Agreement on Tariffs and Trade (GATT), the predecessor of the World Trade organization. A GATT panel concluded that the U.S. was wrong to embargo Mexico imports simply because it didn't like the way the tuna was harvested.

"In that case, the U.S. was unfairly treating trade partners based on how ...they harvested the product," Fernandez says.

What the U.S. could do without violating international trade agreements, was label tuna as either "dolphin-safe" or not.

It gave seafood exporters an incentive to get a "dolphin-safe" label, she says. Judging from this history, she says, the WTO will be fine with a labeling system (which the new rule doesn't require), but it probably won't be fine with an embargo, which could happen under the new rule.

Cost is also a big concern in implementing the rule, according to Lekelia Jenkins, a marine conservation expert at Arizona State University and a former NOAA employee. Jenkins says her number one concern is how much money NOAA will have to enforce it.

"We can write laws as much as we want," she says. "It does not mean that there will be appropriations to fund those laws.

Rob Williams, a marine conservation fellow at the Pew Charitable Trusts, says the amount of resources that the U.S. invests will determine the effectiveness of the new rule. Some resources, he says, should be used to help other countries implement U.S. conservation measures. He says it took the U.S. 40 years to refine these measures. "We should be exporting those lessons learned so that other countries don't have to take 40 years to learn," he says. Otherwise, he says, "countries presumably will just find other markets for their seafood."