Unilateral Harmonization and the Implementation of the Marine Mammal Protection Act Import Rule

Abstract

The U.S. Marine Mammal Protection Act (MMPA) has been at the heart of international trade discussions on access to the U.S. market for fisheries products since 1972 when it established a national policy to prevent marine mammal species and population stocks from declining beyond repair. The Act’s salience has grown in recent years as U.S. lawmakers continue to revise, refine, and reform its operation. It served as the basis for not just extensive regulations that have re-shaped certain fishing exercises but also several disputes at the WTO, claims brought against the United States by its trading partners alleging that the application of the Act was discriminatory in violation of the WTO Agreements.

The MMPA Import Rule, which takes effect after a six-year moratorium at the end of 2022, is the latest development in this long-running international debate. This chapter examines the implementation process for the Import Rule. At the prompting of several non-governmental organizations, the U.S. government is re-structuring the obligations placed on all fisheries exporting to the United States, requiring them to demonstrate a U.S.-set threshold level of protection of marine mammals. In so doing, U.S. regulators have sought to manage the conditions of entry in a way that is responsive to both environmental and animal advocates, as well as to business and foreign trading partners. The debate surrounding the MMPA Import Rule is a good current example of the regulatory struggle faced by governments as they seek to achieve two different important public policy aims and to meet their respective international commitments, when those aims and commitments appear to be at cross-purposes.

Keywords: fisheries, import, trade regulation, harmonization, MMPA