Seafood Importers Challenge NMFS' Impending Import Ban on 240 Fisheries

The associations filed a motion for a preliminary injunction against the comparability findings on Oct. 14, arguing that the results of the determinations will be "immediate and severe" and that the groups are likely to succeed in their claims that the NMFS violated both the Marine Mammal Protection Act (MMPA) and the Adminstrative Procedure Act (APA).

NMFS released its comparability findings Sept. 2, finding the 240 fisheries failed to meet U.S. standards for marine mammal protection and indicating that seafood products from these fisheries would be banned starting Jan. 1, 2026. Under the MMPA, it's unlawful for any fish or fish product to be imported if it comes from a fishery that doesn't have comparable marine mammal protections to the U.S. In implementing this law, NMFS' regulations require it to "make specified findings and consider mandatory factors before issuing comparability findings."

The agency looks at, among other things, the harvesting nation's assessments of "population abundance for marine mammal stocks" that are "incidentally killed or seriously injured in the export fishery"; calculations of bycatch limits, which are defined as the "potential biological removal or a comparable scientific metric," for marine mammal stocks that are incidentally killed or injured by the fishery; and a requirement to impose measures reducing total incidental mortality and injury below the bycatch limit.

For the comparability findings, the agency's analytical approach involved "standardized report templates," "tiered risk screens keyed to gear type and protected stocks," default potential biological removal values "where nation-specific limits were unavailable" and a "conservative classification of fisheries as 'export' when information was limited." While NMFS acknowledged it would be difficult for harvesting nations to retrieve this data, NMFS "made default" determinations instead of "drawing reasonable conclusions from available sources," the trade groups said.

Central to the case, NMFS said it would compare the harvesting nations' protections against the U.S. standards for marine mammal protection found in the MMPA itself. The trade groups said this "effectively engrafted domestic regulatory requirements onto foreign fisheries without accounting for differences in governance structures or capacity." The agency also said it would only consider data provided by the harvesting nations themselves or information already physically held by the agency or electronically stored in the ordinary course of the agency's work.

In all, the trade groups made seven claims against the comparability findings, one of which alleged that NMFS violated the MMPA. The other six alleged various APA violations by the agency.

Regarding the lone MMPA claim, the trade associations said that the language of the statute is "explicitly results-oriented," in that it centers on "whether foreign fishing causes excess bycatch, supported by reasonable proof of actual effects." Congress didn't authorize "conditioning market access on adoption of U.S.-style regulatory programs, monitoring systems, or procedural requirements," as NMFS did here, the complaint said.

The agency clearly "exceeded" its authority by requiring foreign nations to prove their "regulatory program" includes "elements mirroring the domestic U.S. framework." The statute doesn't impose this burden, and "Congress knew how to mandate regulatory harmonization when intended," the trade groups argued. "The choice of outcomes-oriented language" in the MMPA "reflects a deliberate emphasis on conservation results over regulatory mimicry."

The "best reading" of the MMPA limits the agency to requiring "reasonable proof concerning the effects of foreign fishing on marine mammals," assessing whether those effects "exceed U.S. standards" and banning imports "only where excess mortality is demonstrated," the complaint said.

The complaint argued that NMFS failed to properly consider seafood importers' interests in relying on the agency's established standard. In relying on the old "results-oriented" test, "industry participants made substantial good-faith investments over nine years to achieve outcomes-based compliance," the trade groups noted. NMFS failed to even address these reliance interests in making its determinations in violation of the APA, the brief said.

The trade associations added that the NMFS acted "arbitrarily and capriciously" in finding the various fisheries didn't meet U.S. standards. The agency doesn't lay out "reasoned, gear-specific or fishery-specific effectiveness evaluations," and instead relies on "documentary gaps," the complaint said.

Instead, when the agency is facing documentary gaps, NMFS is required to "draw reasonable conclusions" based on "readily available and relevant information from other sources," which the agency clearly failed to do, the trade groups said. NMFS should have considered "readily available sources," such as "regional observer programs," scientific literature on marine mammal interaction rates for "comparable gear types" and "peer-reviewed studies and management reports on bycatch reduction measure effectiveness," among other things, the brief said.

While the agency said the factors it considered were "addressed within the standardized framework," NMFS "deliberately restricted the scope of information it would consider" to consider only the information the agency had on hand or received from harvesting nations, the complaint said. This "self-imposed limitation excluded information from industry participants, conservation organizations, and scientific institutions" that could have "informed reasonable conclusions about fishery effectiveness," the brief said.

NMFS additionally erred in failing to properly replace its rule allowing nations subject to a denied comparability finding to reapply "at any time." Here, the agency gave the nations four months to reapply, establishing this timeline in a notice. If NMFS wanted to repeal its regulations letting harvesting nations reapply at any time, it had to do so through notice-and-comment rulemaking and not in a notice, the brief said.