The National Marine Fisheries Service (NMFS), part of the National Oceanic and Atmospheric Administration within the Department of Commerce, has announced comparability findings for the Government of New Zealand's North Island and South Island multi-species set net and trawl fisheries. Published in the Federal Register on March 11, 2026, this notice determines that these fisheries comply with U.S. standards under the Marine Mammal Protection Act (MMPA) for minimizing incidental harm to marine mammals. The findings, effective immediately and valid through December 31, 2029, stem from documentary evidence provided by New Zealand and other available information. This development follows a series of lawsuits challenging earlier NMFS decisions, highlighting tensions between international trade, environmental protection, and regulatory oversight. By granting these findings, NMFS enables continued U.S. imports of fish products from these fisheries, potentially affecting global seafood markets and conservation efforts for species like Hector's and Maui dolphins.
Background on the Marine Mammal Protection Act and Import Provisions
The MMPA, enacted in 1972, aims to protect marine mammals from human activities, including commercial fishing. A key provision, found in 16 U.S.C. 1371(a)(2), bans imports of fish or fish products caught using methods that result in incidental kill or serious injury of marine mammals exceeding U.S. standards. To enforce this, NMFS requires exporting nations to provide proof of comparable regulatory programs.
In 2016, NMFS issued a final rule (81 FR 54390, August 15, 2016) establishing a framework for evaluating foreign fisheries. Under this rule, nations must obtain comparability findings for their export and exempt fisheries to access the U.S. market. A comparability finding confirms that a nation's measures to reduce marine mammal bycatch are as effective as those in the U.S., which include monitoring, mitigation strategies, and population assessments. New Zealand, a significant exporter of seafood to the U.S., has been subject to this process since the rule's implementation, with its set net and trawl fisheries drawing particular scrutiny due to interactions with endangered dolphins.
Litigation History and Key Players
The path to the March 2026 findings involves multiple legal challenges. In November 2020, NMFS initially granted comparability findings for select New Zealand fisheries (85 FR 71297, November 9, 2020), but environmental groups, including Sea Shepherd New Zealand and Sea Shepherd Conservation Society, sued, alleging violations of the MMPA and Administrative Procedure Act (APA) in Sea Shepherd New Zealand v. United States, Case No. 20-00112. Following supplemental evidence from New Zealand, NMFS reconsidered and reissued findings in January 2024 (89 FR 4595, January 24, 2024).
Subsequent lawsuits intensified the scrutiny. In December 2024, Maui and Hector's Dolphin Defenders NZ Inc. challenged the 2024 findings in Maui and Hector's Dolphin Defenders NZ Inc. v. National Marine Fisheries Service (MHDD v. NMFS I), Case No. 1:24-cv-00218, focusing on West Coast North Island set net and trawl fisheries (IDs 1969 and 1977). The U.S. Court of International Trade ruled on August 26, 2025, that NMFS's decision was arbitrary and capricious, vacating it and remanding for new findings by January 6, 2026.
Separately, NMFS issued broader comparability findings for over 2,500 global fisheries on September 2, 2025 (90 FR 42395), in response to a court order in Natural Resources Defense Council v. National Marine Fisheries Service, Case No. 1:24-cv-00148. This prompted another lawsuit, MHDD v. NMFS II (Case No. 1:26-00060), filed January 5, 2026, contesting findings for 15 North Island and South Island fisheries involving set net and trawl gear. Plaintiffs argued that NMFS inadequately addressed impacts on Hector's dolphins and other marine mammals, expanding the scope beyond the North Island to include South Island operations.
Key players include NMFS as the regulatory authority, the Government of New Zealand providing evidence, environmental organizations advocating for stricter protections, and the U.S. Court of International Trade overseeing compliance. These cases underscore debates over evidentiary standards and the balance between trade facilitation and species conservation.
NMFS's Determinations and Supporting Evidence
In the March 2026 notice, NMFS conducted a discretionary review under 50 CFR 216.24(h)(8)(vii) of its September 2025 findings, incorporating information from the MHDD v. NMFS I remand and other sources. The agency determined that New Zealand's regulatory program for the specified fisheries (IDs: 1883, 1968, 1969, 1977, 1978, 2041, 2046, 2047, 2051, 2052, 2053, 2054, 2064, 2067, and 2077) is comparable to U.S. standards. This includes measures like bycatch monitoring, gear restrictions, and population management plans.
NMFS cited documentary evidence from New Zealand, addressing court concerns about rationale consistency with the MMPA. For instance, the notice references a Decision Memorandum dated March 2, 2026, detailing evaluations of bycatch rates and mitigation effectiveness. These findings supersede prior ones for the listed fisheries but leave other New Zealand fisheries (e.g., purse seine, longline) unaffected. The determination aligns with regulatory conditions in 50 CFR 216.24(h)(6) and (h)(7), emphasizing comparable effectiveness in reducing incidental mortality.
Perspectives and Implications
Environmental groups, such as Maui and Hector's Dolphin Defenders, view these findings as insufficient, arguing they fail to fully protect vulnerable species like Hector's dolphins, which face threats from entanglement in set nets and trawls. They advocate for import bans to pressure stronger foreign regulations. Conversely, the fishing industry and New Zealand government emphasize their programs' robustness, including area closures and observer coverage, asserting equivalence to U.S. efforts.
Short-term implications include sustained U.S. market access for New Zealand seafood, stabilizing trade relations. Long-term, this could influence global standards for bycatch reduction, potentially encouraging other nations to enhance protections. However, ongoing litigation may lead to further remands, affecting enforcement timelines.
The March 2026 comparability findings represent a pivotal step in applying the MMPA's import provisions, balancing conservation with international commerce. Potential next steps include NMFS monitoring compliance through 2029, while debates persist on evidentiary thresholds and species-specific protections. Future challenges may involve adapting to new scientific data on marine mammal populations or evolving court interpretations of the APA, shaping the trajectory of U.S. environmental trade policy.
