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Submission

North Atlantic right whale

Submission ID: SEM-21-003
Party concerned: United States
Date filed: October 4, 2021
Submission Status: Open

Latest Update: June 3, 2022

The Secretariat determined that the submission warrants the preparation of a factual record under Article 24.28(1) and so informed the Council and the Environment Committee.

Summary of the matter addressed in the submission:

The Submitter asserts that the United States is failing to effectively enforce its environmental laws designed to protect the North Atlantic right whale (Eubalaena glacialis) from the “primary human threats of fishing gear entanglement and vessel strikes, as well as stressors of climate change, ocean noise, and offshore energy development.” The Submitter asserts that “in just the last decade, the Fisheries Service reported that 218 North Atlantic right whales have likely succumbed to fishing gear entanglement and vessels strikes.”

North Atlantic right whales have been listed as endangered in the US since 1970 and are considered one of the world’s most endangered large whale species. In 2019 there were approximately 360 of these right whales left, with fewer than 80 breeding females, according to the submission. The Submitters assert that the US is failing to effectively enforce several federal laws and regulations, including the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Policy Act.

Summary of the response provided by the Party:

The United States informs in its Response that there are judicial and administrative proceedings pending in the D.C. Circuit in relation to protection of the North Atlantic right whale. The judicial proceedings are related to matters that the Submitters raised in their submission. In particular, there are ongoing proceedings addressing the time taken by NOAA to strengthen speed restrictions for vessels through a specific regulation. There are also a number of administrative proceedings that are still pending related to penalties for exceeding vessel speed provisions. The United States maintains that the submission should not continue with respect to matters related to enforcement of the Vessel Speed Rule.

With respect to fishing gear entanglement, a number of NGOs and fishing industry associations are suing NOAA on issues related to non-compliance with its obligations under different regulations and statutes. Among the arguments expressed in these judicial proceedings are the temporary restrictions on lobster catch in the Gulf of Maine; deficiencies in biological opinions related to the species, and possible violations of the Endangered Species Act (ESA). The United States asserts that the responses to the administrative and judicial proceedings are linked to issues raised in the Factual Record and that, therefore, the submission should be terminated by the Secretariat pursuant to the USMCA 24.27.4(a).

The United States claims that it is effectively enforcing its legislation with respect to vessel strikes. In this regard, it informs that NOAA is currently reviewing its regulations to limit potential impacts to right whales. The U.S. Government states that NOAA has carried out different mechanisms related to the application of the legislation, among others, liaison activities, education, and assistance for compliance with the regulations; and, it has issued written notices, as well as fines for non-compliance with applicable provisions. It is further claimed that the U.S. Coast Guard has complied with the Port Access Route Study, and that all corresponding information and comments are available to the public.

Finally, the U.S. Government affirms that it is effectively enforcing its environmental legislation; more specifically, it is acting in compliance with the applicable sections of the ESA, the Marine Mammal Protection Act (MMPA), and the National Environmental Policy Act (NEPA).

Submitter(s):

Oceana

Submission Timeline

October 4, 2021

The Secretariat began reviewing the submission under Articles 24.27(2) and (3).

Submission - Submission authored by Submitter(s) on 04/10/2021

Acknowledgement - Communication to Submitter(s) authored by Secretariat on 04/10/2021

November 4, 2021

The Secretariat notified the Submitter(s) that the submission did not meet all the Article 24.27(2) and (3) criteria, and that the Submitter(s) has 60 days to submit a revised submission.

Determination - Secretariat Determination under Article 24.27(2) and Article 24.27(3) of the CUSMA/USMCA authored by Secretariat on 04/11/2021

January 4, 2022

The Secretariat received a revised submission and began to analyze it.

Submission - Submission authored by Submitter(s) on 04/01/2022

Acknowledgement - Communication to Submitter(s) authored by Secretariat on 05/01/2022

February 3, 2022

The Secretariat determined that the submission met the criteria of Article 24.27(2), and requested a response from the concerned government Party in accordance with Article 24.27(3).

Determination - Secretariat Determination under Article 24.27(2) and Article 24.27(3) of the CUSMA/USMCA authored by Secretariat on 03/02/2022

April 4, 2022

Under Article 24.27(4), the Secretariat received a response from the concerned government Party and began considering whether to recommend a factual record under Article 24.28(1).

Party Response - Response from the Party under Article 24.27(4) of the CUSMA/USMCA authored by United States on 04/04/2022

Acknowledgement - Other document authored by Secretariat on 05/04/2022

June 3, 2022

The Secretariat determined that the submission warrants the preparation of a factual record under Article 24.28(1) and so informed the Council and the Environment Committee.

Recommendation - Secretariat Notification to Council under Article 24.28(1) of the CUSMA/USMCA authored by Secretariat on 03/06/2022