Notification of the Rejection of the Petition To Ban Imports of All Fish and Fish Products From New Zealand That Do Not Satisfy the Marine Mammal Protection Act, 32853-32858 [2019-14720]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 84, Number 132 (Wednesday, July 10, 2019)]
[Proposed Rules]
[Pages 32853-32858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14720]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

RIN 0648-XG809


Notification of the Rejection of the Petition To Ban Imports of 
All Fish and Fish Products From New Zealand That Do Not Satisfy the 
Marine Mammal Protection Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Rejection of the petition to ban imports through emergency 
rulemaking.

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SUMMARY: NMFS announces the rejection of a petition for emergency 
rulemaking under the Administrative Procedure Act. Sea Shepherd Legal, 
Sea Shepherd New Zealand Ltd., and Sea Shepherd Conservation Society 
petitioned the U.S. Department of Commerce and other relevant 
Departments to initiate emergency rulemaking under the Marine Mammal 
Protection Act (``MMPA''), to ban importation of commercial fish or 
products from fish that have been caught with commercial fishing 
technology that results in incidental mortality or serious injury of 
M[amacr]ui dolphin (Cephalorhynchus hectori M[amacr]ui) in excess of 
United States standards.

DATES: The petition for rulemaking was denied on June 18, 2019.

FOR FURTHER INFORMATION CONTACT: Nina Young, NMFS F/IASI (Office of 
International Affairs and Seafood Inspection) at [email protected] or 
301-427-8383.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(2) of the Marine Mammal Protection Act (MMPA), 16 
U.S.C. 1371(a)(2), states that: ``The Secretary of the Treasury shall 
ban the importation of commercial fish or products from fish which have 
been caught with commercial fishing technology which results in the 
incidental kill or incidental serious injury of ocean mammals in excess 
of United States standards.'' In August 2016, NMFS published a final 
rule (81 FR 54390; August 15, 2016) implementing the fish and fish 
product import provisions in section 101(a)(2) of the MMPA. This rule 
established conditions for evaluating a harvesting nation's regulatory 
programs to address incidental and intentional mortality and serious 
injury of marine mammals in fisheries operated by nations that export 
fish and fish products to the United States. In that rule's preamble, 
NMFS stated that it may consider emergency rulemaking to ban imports of 
fish and fish products from an export or exempt fishery having or 
likely to have an immediate and significant adverse impact on a marine 
mammal stock.

The Petition

    NMFS received a petition on February 6, 2019, from Sea Shepherd 
Legal, Sea Shepherd New Zealand Ltd., and Sea

[[Page 32854]]

Shepherd Conservation Society, stating that the Secretaries of Commerce 
and other relevant federal Departments are required under section 
101(a)(2) of the MMPA (16 U.S.C. 1371(a)(2)), to ``ban the importation 
of commercial fish or products from fish'' sourced in a manner that 
``results in the incidental kill or incidental serious injury'' of 
M[amacr]ui dolphin ``in excess of United States standards.'' The 
petition requested that the relevant Secretary ban the importation of 
all fish and fish products caught in set nets or trawls inside the 
M[amacr]ui dolphin's range and from the west coast of New Zealand's 
North Island and the Cook Strait, unless affirmatively identified as 
having been caught with a gear type other than set nets or trawls 
within that area or affirmatively identified as caught outside the 
M[amacr]ui dolphin's range.
    As support for the need for this action, the petition cites several 
reports and studies, which note various estimates of decline. The 
petitioners assert that for the M[amacr]ui dolphin, set net and trawl 
bycatch has driven the species from a population of approximately 2,000 
individuals in 1971, to 111 in 2004, to 55 in 2011. Further, the 
petition notes that in 2018 the Scientific Committee of the 
International Whaling Commission reported an abundance estimate of 57 
individuals, with a 95 percent confidence interval of 44 to 75 
individuals, which equates to an average decline of 2 percent every 
year and a total decline of 59 percent over the 31-year period from 
1985 to 2016.
    The petitioners maintain that any fishery using set nets, trawls, 
or gillnets in the M[amacr]ui dolphin range along the west coast of New 
Zealand's North Island violates U.S. standards under the MMPA. The 
petitioners provide a list of 11 fish species harvested within the 
M[amacr]ui dolphin range by set nets, trawls, or gillnets that are 
potentially imported into the U.S. as fish or fish products.

NMFS Determination

    NMFS reviewed the petition, supporting documents, previous risk 
assessments and threat management plans and New Zealand's 2019 risk 
assessment and Threat Management Plan (TMP). NMFS is rejecting the 
petition because the Government of New Zealand is implementing a 
regulatory program comparable in effectiveness to the United States and 
for the following reasons:
    1. New Zealand has in place an existing regulatory program to 
reduce M[amacr]ui dolphin bycatch.
    2. Through its 2019 risk assessment, New Zealand evaluated the 
effectiveness of this regulatory program in meeting bycatch reduction 
targets defined as the Population Sustainability Threshold (PST).
    3. Based on the 2019 assessment, New Zealand is now proposing 
additional regulatory measures which, when fully implemented, will 
likely further reduce risk and M[amacr]ui dolphin bycatch below 
Potential Biological Removal level (PBR).

New Zealand has undertaken the same process as NMFS does through its 
take reduction team process: implemented a regulatory plan, evaluated 
whether the plan reduced bycatch below PBR, and revised the plan when 
it was determined that bycatch has not been reduced below PBR.
    Since 2012, the Government of New Zealand has had in place measures 
restricting set nets and trawls in certain areas of M[amacr]ui dolphin 
habitat, and required increased observer coverage and other monitoring 
mechanisms. From 1995/96 to present, there have been no observed 
captures of M[amacr]ui dolphins in set net or trawl fisheries (Roberts 
et al. 2019).
    According to the risk assessment, for M[amacr]ui dolphins on the 
West Coast of the North Island (WCNI), the estimated annual deaths from 
commercial set nets was 0.09 individuals per year, (95 percent CI = 
0.0-0.3) and for the inshore trawl fishery was 0.02 individuals per 
year (95 percent CI = 0.0-0.1). Therefore, estimated bycatch in set and 
trawl fisheries is approximately equivalent to the PBR level of 0.11 
for M[amacr]ui dolphin, assuming the distribution of M[amacr]ui 
dolphins can be accurately approximated by the Hector's dolphin habitat 
preference model. The estimated bycatch is also less than New Zealand's 
PST (their PBR equivalent) of 0.28 (i.e., assuming a calibration 
coefficient ([Phi]) value of 0.2 corresponding to a population recovery 
target at 90 percent of carrying capacity) or alternately the PST = 
0.14 (if the population recovery objective for M[amacr]ui dolphins is 
recovery to 95 percent of its carrying capacity). Therefore, the best 
estimate of annual mortalities for assessed commercial fisheries did 
not exceed the annual PST between 2014/15 and 2016/17, indicating that 
the recent mortality levels for these fisheries would not individually 
or collectively depress the equilibrium population below 90 percent of 
carrying capacity. For M[amacr]ui dolphins, the estimated annual 
deaths, fishing effort, and risk ratios have declined through time 
since 1992/93.
    New Zealand's 2019 spatial risk assessment of threats to M[amacr]ui 
dolphin informs the revised TMP for this subspecies (Roberts et al. 
2019). According to the 2019 assessment, bycatch of M[amacr]ui dolphins 
in commercial fishing operations is currently at or below PBR and PST. 
However, because the population of M[amacr]ui dolphins is very small, 
New Zealand is committed to reducing the risk of all human-induced 
deaths to as close as possible to zero to provide the best chance of 
preventing further population decline, and allow the population to 
increase as rapidly as possible. Based on the mortality estimates in 
the risk assessment, New Zealand is proposing to implement additional 
mitigation measures with the proposed outcome of reducing the current 
level of fisheries risk by at least 50 percent. On June 17, 2019, New 
Zealand published a TMP containing additional options to reduce 
M[amacr]ui dolphin bycatch. New Zealand's Hector's and M[amacr]ui 
dolphin Threat Management Plan is currently under public review and 
comment with final regulatory action by the New Zealand's Ministers 
scheduled for late 2019 (See: https://www.fisheries.govt.nz/news-and-resources/consultations/hectors-and-maui-dolphins-threat-management-plan-review/).
    New Zealand's TMP proposes a range of bycatch mitigation measures 
to complement measures already in place and reduce the residual risk 
from both set netting and trawling. An additional mitigation measure, 
in addition to the mitigation options proposed in the 2019 TMP, is the 
inclusion of a trigger mechanism where set net and trawl fishing would 
be halted throughout the range of the M[amacr]ui dolphins if a 
fisheries capture occurred. The TMP is the functional equivalent to a 
take reduction plan under the MMPA. The immediate goal of take 
reduction plans is to reduce, within six months of its implementation, 
the incidental mortality or serious injury of marine mammals from 
commercial fishing to less than the PBR level (16 U.S.C 1387(f)(2)). 
Most of the options contained in New Zealand's TMP, once implemented, 
would further reduce the risk of M[amacr]ui dolphin bycatch. With the 
exception of the status quo option, all options within the TMP, once 
implemented, will likely further reduce M[amacr]ui dolphin bycatch to 
well below PBR and PST.
    Therefore, based on the current regulatory regime and assuming the 
implementation of additional measures outlined in the TMP, NMFS does 
not believe that import restrictions under the MMPA Import Provisions 
are warranted at this time and is rejecting the petition. As part of 
the MMPA Import Provisions, NMFS will continue to evaluate New 
Zealand's

[[Page 32855]]

implementation of its regulatory regime governing set net and trawl 
fisheries with the potential to interact with M[amacr]ui dolphin to 
ensure that the regulatory regime is comparable in effectiveness to the 
U.S. regulatory regime.

Responses to Comments on the Notification of the Petition

    NMFS received comments on the notification of the petition from 
fishing industry groups, environmental non-governmental organizations 
(NGOs), private citizens, the Marine Mammal Commission, and foreign 
governments.

General Comments

    NMFS received comment letters and petitions from private citizens 
primarily through environmental NGOs supporting the petition. 
Specifically, the majority of commenters expressed their support for 
the petition and the application of trade restrictions. NMFS received 
more than 88,678 petitioners on the Care2 comments, most with minimal 
substantive comment. Forty-three public comments generally supported 
the petition. In addition, we received substantive comments from the 
Marine Mammal Commission, industry (2), marine mammal scientists (1) 
and environmental NGOs (3) for a total of 88,726 comments/petitioners. 
Comments received are available on the internet at https://www.regulations.gov under Docket ID ``NOAA-NMFS-2019-0013.'' In the 
following section, NMFS responds to those comments most applicable to 
this determination.
The Adequacy of Existing Measures Regulating Commercial Fishing 
Throughout the Range of the M[amacr]ui Dolphin
    Comment 1: The petitioners and the Marine Mammal Commission 
expressed concern about the adequacy of measures to mitigate M[amacr]ui 
dolphin bycatch. The petitioners cited the 2018 report of the IWC 
Scientific Committee that stated: ``existing management measures in 
relation to bycatch mitigation fall short of what has been recommended 
previously'' (IWC 2018). Since 2015, the Scientific Committee expressed 
concerns about New Zealand's regulatory regime and in 2018 
``reiterate[d] its previous recommendation that highest priority should 
be assigned to immediate management actions to eliminate bycatch of 
M[amacr]ui dolphins including closures of any fisheries within the 
range of M[amacr]ui dolphins that are known to pose a risk of bycatch 
to dolphins (i.e., set net and trawl fisheries).'' The petitioners and 
the Marine Mammal Commission expressed concern over the portion of 
M[amacr]ui dolphin habitat closed to set net and trawl fishing (14 
percent and 5 percent, respectively) stating that the current closures 
were insufficient to cover the range and density of M[amacr]ui 
dolphins. Likewise, the petitioners and the Marine Mammal Commission 
expressed concern over the small percentage of observed set net and 
trawl fishery operations (12.7 percent and 14.6 percent, respectively) 
stating the coverage has been too low to estimate the magnitude of 
incidental catch of M[amacr]ui dolphins precisely or accurately to 
detect trends in the catch.
    Response: 50 CFR 216.24(h)(7) outlines additional considerations 
for comparability finding determinations. Those considerations include 
the extent to which the harvesting nation has successfully implemented 
measures in the export fishery to reduce the incidental mortality and 
serious injury of marine mammals caused by the harvesting nation's 
export fisheries to levels below the bycatch limit; and whether the 
measures adopted by the harvesting nation for its export fishery have 
reduced or will likely reduce the cumulative incidental mortality and 
serious injury of each marine mammal stock below the bycatch limit, and 
the progress of the regulatory program toward achieving its objectives 
(50 CFR 216.24(h)(7)(i-ii)).
    As noted by the Marine Mammal Commission, the two population 
estimates produced since the establishment of the prohibition zones, 
made five years apart, were very similar (Slooten and Dawson 2018), 
suggesting that protection provided by the current regulatory regime 
may have slowed or halted the population's decline. This observation is 
supported by the bycatch estimates in the current risk assessment, 
which now estimate M[amacr]ui dolphin bycatch at 0.1 animals annually 
over the last three years. Additionally, the 2019 TMP contains 
additional options for bycatch mitigation, which, with the exception of 
the status quo, extends protection over a larger portion of M[amacr]ui 
dolphin habitat. The evidence presented in terms of abundance estimates 
and risk assessments supports the adequacy of existing protection 
measures. Therefore, NMFS believes the existing and the proposed 
regulatory regime is sufficient to maintain M[amacr]ui dolphin bycatch 
below PBR.
    Comment 2: The National Fisheries Institute (NFI) claims that in 
multiple recent studies assessing various nations for management of 
their Exclusive Economic Zones, determining whether countries' 
fisheries management systems are compliant with the United Nations Food 
and Agriculture Organization's code of conduct, and ranking the overall 
effectiveness of fishery management regimes, New Zealand is in the 
first rank of nations. NFI questioned, ``if New Zealand/MPI cannot meet 
American requirements for effective conservation of the M[amacr]ui 
dolphin, it is not clear what country's fishery management regulators 
could meet those requirements as to their marine mammals.'' NFI also 
states if NMFS is ``badgered'' into imposing multiple embargoes of the 
kind Petitioners seek, then the commercial damage to the U.S. seafood 
industry--and the tens of millions of consumers it serves--will be 
significant indeed. NFI also claimed that ``repeated establishment of 
unwarranted MMPA embargoes of this nature, moreover, eventually will 
trigger similar requirements aimed at the United States and its seafood 
exports. That will raise costs and create uncertainty for U.S. 
harvesters who seek predictable access to their own export markets, and 
who stand to lose that access if the U.S. fishery management system is 
found similarly, and arbitrarily, wanting by foreign fishery management 
agencies.''
    Response: NFI's comments have misinterpreted the MMPA Import 
Provisions. These provisions do not evaluate a nation's overall fishery 
management regime, but rather the management measures that apply to the 
bycatch of marine mammals in its fisheries that export fish and fish 
products to the United States. It is those management measures that 
must be comparable in effectiveness to the U.S. regulatory program.
    Comment 3: The petitioners and the Marine Mammal Commission state 
that ``while the New Zealand management system includes many of the 
elements found in the U.S. system, the dire situation facing M[amacr]ui 
dolphins, and their declining trend and the lack of confidence in the 
measures in place to reverse this trend, suggests that New Zealand's 
program is not comparably effective.'' To support this assertion, the 
Commission again cites the IWC 2018 Scientific Committee report, noting 
that New Zealand had not implemented any new protective measures for 
the subspecies since 2013 (IWC 2018). As well as the Scientific 
Committee conclusion that the ``existing management measures in 
relation to bycatch mitigation fall short of what has been recommended 
previously''; the Committee expressed ``continued grave concern over 
the status of this small, severely depleted subspecies'' (IWC 2018).
    The Marine Mammal Commission states that ``to address the 
unacceptably

[[Page 32856]]

high level of mortality and serious injury of a subspecies such as 
M[amacr]ui dolphin, it is likely that NMFS long ago would have (i) 
assigned highest priority to developing a take reduction plan to reduce 
mortality and (ii) invoked the emergency rulemaking provisions under 
MMPA section 118(g) given the apparent ``immediate and significant 
adverse effect'' of fisheries on the population. It is also likely that 
NMFS would have substantially increased observer coverage to better 
understand and track the impacts of fisheries interactions. It is not 
clear that New Zealand's efforts to date have been comparable to what 
is required of NMFS and U.S. fisheries under the MMPA.''
    Response: While the Commission may be correct in stating that NMFS 
would likely have convened a take reduction team, any assertion as to 
the outcome of that process is speculative. New Zealand has implemented 
a functional equivalent to the take reduction process, its risk 
assessment and TMP. Similarly, since 2012 New Zealand has successfully 
increased fisheries observer coverage in West Coast North Island set 
net and trawl fisheries since 2012. The TMP will inform further 
modifications to its existing regulatory program. New Zealand is 
proposing additional bycatch mitigation options that would implement 
bycatch mitigation over a larger portion of the M[amacr]ui dolphin's 
range. Such actions should address any perceived uncertainty in the 
risk assessment model or its assumptions, and any unaccounted for 
bycatch risk such as that associated with recreational and illegal 
fishing. This iterative process to implement, reconsider, and refine 
bycatch reduction measures, is similar to the take reduction process 
for marine mammal stocks such as the Gulf of Maine harbor porpoise and 
the North Atlantic right whale.
    Comment 4: The petitioners claim that PBR and PST are not 
comparable and states that the New Zealand Government readily admits 
that PST is not equivalent to PBR. The Ministry for Primary Industries 
(MPI), the lead authority for New Zealand fisheries, summarizes PST as 
follows: The PST is an index of the population productivity, adapted 
from the PBR. It is an estimate of the maximum number of human-caused 
mortalities that will allow populations to recover to and/or stabilize 
and remain at or above a defined population target. The PST differs 
from the PBR by explicitly including the uncertainty in population 
size, instead of using a conservative point estimate of population 
size, and by utilizing a scaling factor that can be tuned to achieve 
different population recovery outcomes, reflecting a policy decision 
(Sharp 2018). The petitioners state that ``the PST differs from PBR by 
(1) fixing the end-goal as maintenance of population at only half of 
`carrying capacity,' as opposed to including a recovery factor that 
aims to `allow that stock to reach or maintain its optimum sustainable 
population'; (2) including a two-century time horizon no matter the 
specific context; and (3) using the full distribution of the population 
size estimate, rather than an estimated minimum.'' The petitioners 
claim that to be ``consistent with U.S. standards (as required by the 
MMPA Imports Provision), New Zealand must adopt the PBR methodology.''
    Response: The MMPA Import Provisions do not require harvesting 
nations to use PBR. These provisions define ``Bycatch limit'' as the 
calculation of a potential biological removal level for a particular 
marine mammal stock, as defined in Sec.  229.2 of this chapter, or 
comparable scientific metric established by the harvesting nation or 
applicable regional fishery management organization or 
intergovernmental agreement. As noted, the PST differs in using mean 
populations estimate (N) rather than Nmin and [Phi] as a general policy 
parameter instead of a recovery factor (Fr). The choice for 
the policy parameter is left to managers. In the current 2019 Hector's-
M[amacr]ui dolphin risk assessment, New Zealand reports PST values 
based on a default value of 0.2 for [Phi], corresponding to a 
population recovery goal at 90 percent of carrying capacity. In the 
officials' advice to policy makers (New Zealand government ministers) 
under the TMP, New Zealand officials recommend use of the default value 
for Hector's dolphins, and a more precautionary value of [Phi] = 0.1 
for M[amacr]ui dolphins, reflecting their urgent conservation status. 
The greatest differences between the PST and the PBR calculation come 
from different values for Rmax (one-half the maximum theoretical or 
estimated net productivity rate of the stock at a small population 
size) and the level of protection conferred by Fr (or [Phi]). In the 
case of M[amacr]ui dolphin the PBR is 0.11 while the PST is 0.28 ([Phi] 
= 0.2) or 0.14 ([Phi] = 0.1). At this level, the difference between PBR 
and PST is negligible.
Whether the Apparent Decline in the M[amacr]ui Dolphin Population Due 
to Commercial Fishing Meets the Standard of ``Immediate and Significant 
Adverse Impact on a Marine Mammal Stock'' Within the Meaning of the 
MMPA
    Comment 5: The petitioners, Marine Mammal Commission, and other 
environmental NGOs cited the 2012 M[amacr]ui dolphins Threat Management 
Plan (MPI/DOC 2012). Citing that approximately 95 percent of human-
induced M[amacr]ui dolphin mortalities were caused by fishing 
(commercial, recreational, customary and illegal fishing combined) and 
an estimated that 5 M[amacr]ui dolphins, on average, were killed each 
year due to fisheries interactions, these groups used the Currey et al. 
(2012) assessment as the foundation for their conclusion that fishing 
is the primary cause of the decline in M[amacr]ui dolphins and that 
this threat has had an ``immediate and significant adverse impact'' on 
the subspecies. The petitioners stated that ``current estimates of 
mortalities from fisheries (ranging from two to five individuals per 
year) exceed PBR several times over.''
    Response: The previous multi-threat risk assessment for M[amacr]ui 
dolphins used an expert panel to estimate threat-specific annual deaths 
for a range of perceived key threats to this subspecies, relative to a 
PBR (Currey et al. 2012). Changes in data availability (e.g., longer 
time series of fisheries information, more comprehensive necropsy 
methods, and improvements to habitat-based spatial distribution 
information parameterized using data from new aerial surveys) and 
advances in scientific approaches to risk assessment (Sharp 2018) have 
resulted in a new risk assessment with revised estimates of M[amacr]ui 
dolphins bycatch, and the conclusion that toxoplasmosis is a major 
cause of death for M[amacr]ui dolphins (Roe et al. 2013). It is 
mortality associated with disease, not commercial fisheries bycatch, 
that results in the annual mortality of M[amacr]ui dolphins exceeding 
PBR.
Specific Fisheries Are or May Be Directly Associated With Potential 
Mortality of M[amacr]ui Dolphin and Therefore Fall Within the Scope of 
the Petition for Emergency Action
    Comment 6: Sea Shepherd asserts that eleven fish species may be the 
source of exports to the United States. Ten of those species are drawn 
from a list prepared by Sanford Ltd and Moana Ltd when they prepared 
their M[amacr]ui Protection Plan. The Marine Mammal Commission agrees 
with the petitioners that the specific fisheries which are, or may be, 
directly associated with mortality of M[amacr]ui dolphins are the 
gillnet and trawl fisheries that operate within the core range of the 
M[amacr]ui dolphin. The Commission states that although the MMPA Import 
Provisions focuses on identifying particular offending fisheries, it is 
the statutory

[[Page 32857]]

language that should be controlling. ``In this case, the language of 
the MMPA states, `[t]he Secretary . . . shall ban the importation of 
commercial fish or products from fish which have been caught with 
commercial fishing technology which results in the incidental kill or 
incidental serious injury of ocean mammals in excess of United States 
standards.' '' The Commission states that it ``recognizes that it may 
be difficult at this time to track fish and fish products to specific 
offending fisheries. If that is the case and NMFS does move forward 
with a ban, the Commission recommends that NMFS include imports of fish 
and fish products from all gillnet and trawl fisheries that operate, 
even partially, in the core of the M[amacr]ui dolphin's range.'' 
Fisheries Inshore New Zealand stated that its information indicates 
that products sourced from M[amacr]ui habitat are not exported to the 
United States.
    Response: NMFS disagrees. NMFS cannot implement import restrictions 
that affect fisheries that do not export to the United States. Both the 
MMPA Import Provisions and the statute turn on the importation of fish 
and fish products from a specific fishery, not just any fishery, and 
certainly not all fisheries operating within the range of a marine 
mammal regardless of whether they export product to the United States. 
While there are set net and trawl fisheries on the List of Foreign 
Fisheries that operate within the M[amacr]ui dolphin range, NMFS, 
working with the Government of New Zealand, has not been able to 
establish conclusively that these fisheries export to the United 
States.
    Comment 7: NFI expressed concern over the petitioners' reliance on 
industry information to supply the statutorily required nexus between 
specific fisheries and the habitat of the M[amacr]ui dolphin. NFI asks 
what purpose NMFS's determination related to the LOFF serves if 
petitioners can simply jettison them in favor of more attractive data 
points. NFI states that ``if Petitioners in this instance can meet 
their MMPA burden by relying primarily on information obtained outside 
of, and in contradiction to, final LOFF determinations, then no 
stakeholder in this process can rely on those determinations.''
    Response: NMFS disagrees. The MMPA Import Provisions at 50 CFR 
216.24(h)(3)(iv) clearly state that NMFS may consider other readily 
available and relevant information about such commercial fishing 
operations and the frequency of incidental mortality and serious injury 
of marine mammals, including: Fishing vessel records; reports of on-
board fishery observers; information from off-loading facilities, port-
side officials, enforcement agents and officers, transshipment vessel 
workers and fish importers; government vessel registries; regional 
fisheries management organizations documents and statistical document 
programs; and appropriate certification programs. Other sources may 
include published literature and reports on fishing vessels with 
incidental mortality and serious injury of marine mammals from 
government agencies; foreign, state, and local governments; regional 
fishery management organizations; nongovernmental organizations; 
industry organizations; academic institutions; and citizens and citizen 
groups.

Concerns About Further Delay in the Implementation of Bycatch by 
Deferring Action on the Petition

    Comment 8: Fisheries Inshore New Zealand recommended deferring 
action on the petition until the TMP process has been completed and the 
decisions of the New Zealand Government are known. The NFI claimed the 
petition is badly flawed and fails to establish the statutorily 
required nexus between the M[amacr]ui dolphin and most of the fisheries 
to which it is supposed to apply. NFI urged NMFS to deny the Petition 
in whole. The petitioners, several environmental NGOs, and the Marine 
Mammal Commission urged NMFS to conclude its consultations and 
accelerate emergency rulemaking to ban imports of fish and fish 
products from fisheries known or likely to take M[amacr]ui dolphin in 
excess of U.S. standards. The Marine Mammal Commission stated it 
``recognizes that New Zealand is currently developing a revised threat 
management plan (the TMP) expected to contain further measures to 
reduce the impact of fishing on M[amacr]ui dolphins.'' The Commission 
noted that ``such processes often take much longer than expected and do 
not always achieve the desired results.'' The Commission believes that 
M[amacr]ui dolphins are at too great a risk of further decline and 
extinction to allow for customary, but potentially drawn-out procedures 
that, in the end, may not sufficiently mitigate the main threats facing 
M[amacr]ui dolphins.''
    Response: NMFS disagrees with the comments from petitioners, the 
Commission, and environmental NGOs on this point. NMFS sees no benefit 
at this time in imposing import restrictions on fisheries operating 
within the range of M[amacr]ui dolphins. The risk assessment clearly 
identifies that disease, not commercial fisheries, is the primary 
factor causing the annual mortality of M[amacr]ui dolphins to exceed 
PBR. Nevertheless, New Zealand has published the current TMP for public 
comments and expects to implement additional regulations by October 
2019. With the exception of the status quo, all options move, to some 
extent, set net and trawl fisheries out of M[amacr]ui dolphin habitat, 
further reducing the bycatch risk and increasing the likelihood that 
the annual mortality from commercial fisheries will remain below PBR. 
NMFS will continue to evaluate New Zealand's implementation of its 
regulatory regime governing set net and trawl fisheries with the 
potential to interact with M[amacr]ui dolphin to ensure that the 
regulatory regime is comparable in effectiveness to the U.S. regulatory 
regime.

Literature Cited

Baird SJ, Bradford E (2000) Estimation of Hector's dolphin bycatch 
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documents/science-and-technical/CSL3024.pdf.
Cooke, J.G., D. Steel, R. Hamner, R. Constantine, and C.S. Scott. 
2018. Population estimates and projections of M[amacr]ui dolphin 
(Cephalorhyncus hectori M[amacr]ui) based on genotype capture-
recapture, with implications for management of mortality risk. 
Unpublished document submitted to the International Whaling 
Commission Scientific Committee. Document SC/67b/ASI/05. 15pp.
Currey RJC, Boren LJ, Sharp BR, Peterson D (2012) A risk assessment 
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dolphin/.
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Dawson SM, Slooten E (1988) Hector's Dolphin Cephalorhynchus 
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    Dated: July 5, 2019.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.
[FR Doc. 2019-14720 Filed 7-9-19; 8:45 am]
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