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]

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FOR FURTHER INFORMATION CONTACT: Bruce Jones, Office of Regional Counsel (ORC), (214) 665–3184 and Email address jones.bruced@epa.gov; or Alima VerDate Sep<11>2014 16:40 Jul 09, 2019 Jkt 247001 32853 Patterson, Regional Authorization/ Codification Coordinator, Permit Section (LCR–RP), Land, Chemical and Redevelopment (214) 665–8533 and Email address patterson.alima@epa.gov; EPA Region 6, 1201 Elms, Suite 500, Dallas, Texas 75202–2733. SUPPLEMENTARY INFORMATION: On October 24, 2018 (83 FR 53595), the EPA published a Proposed Rule to approve state-initiated changes and incorporation by reference of the State of Texas hazardous waste program under (RCRA). EPA is reopening the comment period due to a comment noting the public needed additional time to comment and that some items were not in the docket on www.regulations.gov. EPA has now put these documents into the docket identified by Docket ID EPA–R06– RCRA–2016–0549 at www.regulations.gov and provided this additional comment period. 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 Ma¯ui dolphin (Cephalorhynchus hectori Ma¯ui) in excess of United States standards. List of Subjects DATES: 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Background 40 CFR Part 272 Environmental protection, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Intergovernmental relations, Water pollution control, Water supply. Authority: This document is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: June 28, 2019. David Gray, Acting Regional Administrator, Region 6. [FR Doc. 2019–14422 Filed 7–9–19; 8:45 am] BILLING CODE 6560–50–P 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 National Marine Fisheries Service (NMFS), National Oceanic and AGENCY: PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 Atmospheric Administration (NOAA), Commerce. ACTION: Rejection of the petition to ban imports through emergency rulemaking. SUMMARY: 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 Nina.Young@noaa.gov or 301–427–8383. SUPPLEMENTARY INFORMATION: 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 E:\FR\FM\10JYP1.SGM 10JYP1 32854 Federal Register / Vol. 84, No. 132 / Wednesday, July 10, 2019 / Proposed Rules jspears on DSK30JT082PROD with PROPOSALS 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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯ui dolphin bycatch. 2. Through its 2019 risk assessment, New Zealand evaluated the effectiveness of this regulatory program VerDate Sep<11>2014 16:40 Jul 09, 2019 Jkt 247001 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 Ma¯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 Ma¯ui dolphin habitat, and required increased observer coverage and other monitoring mechanisms. From 1995/96 to present, there have been no observed captures of Ma¯ui dolphins in set net or trawl fisheries (Roberts et al. 2019). According to the risk assessment, for Ma¯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 Ma¯ui dolphin, assuming the distribution of Ma¯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 (F) 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 Ma¯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 Ma¯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 Ma¯ui dolphin informs the revised TMP for this subspecies (Roberts et al. 2019). PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 According to the 2019 assessment, bycatch of Ma¯ui dolphins in commercial fishing operations is currently at or below PBR and PST. However, because the population of Ma¯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 Ma¯ui dolphin bycatch. New Zealand’s Hector’s and Ma¯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-andresources/consultations/hectors-andmaui-dolphins-threat-managementplan-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 Ma¯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 Ma¯ui dolphin bycatch. With the exception of the status quo option, all options within the TMP, once implemented, will likely further reduce Ma¯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 E:\FR\FM\10JYP1.SGM 10JYP1 Federal Register / Vol. 84, No. 132 / Wednesday, July 10, 2019 / Proposed Rules implementation of its regulatory regime governing set net and trawl fisheries with the potential to interact with Ma¯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 nongovernmental organizations (NGOs), private citizens, the Marine Mammal Commission, and foreign governments. jspears on DSK30JT082PROD with PROPOSALS 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. Fortythree 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 http://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 Ma¯ui Dolphin Comment 1: The petitioners and the Marine Mammal Commission expressed concern about the adequacy of measures to mitigate Ma¯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 Ma¯ui dolphins including closures of any fisheries within the range of Ma¯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 VerDate Sep<11>2014 16:40 Jul 09, 2019 Jkt 247001 portion of Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 32855 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 Ma¯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 Ma¯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 E:\FR\FM\10JYP1.SGM 10JYP1 jspears on DSK30JT082PROD with PROPOSALS 32856 Federal Register / Vol. 84, No. 132 / Wednesday, July 10, 2019 / Proposed Rules high level of mortality and serious injury of a subspecies such as Ma¯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 Ma¯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 humancaused 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 VerDate Sep<11>2014 16:40 Jul 09, 2019 Jkt 247001 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 § 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 F 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-Ma¯ui dolphin risk assessment, New Zealand reports PST values based on a default value of 0.2 for F, 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 F = 0.1 for Ma¯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 F). In the case of Ma¯ui dolphin the PBR is 0.11 while the PST is 0.28 (F = 0.2) or 0.14 (F = 0.1). At this level, the difference between PBR and PST is negligible. Whether the Apparent Decline in the Ma¯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 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 environmental NGOs cited the 2012 Ma¯ui dolphins Threat Management Plan (MPI/DOC 2012). Citing that approximately 95 percent of humaninduced Ma¯ui dolphin mortalities were caused by fishing (commercial, recreational, customary and illegal fishing combined) and an estimated that 5 Ma¯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 Ma¯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 Ma¯ui dolphins used an expert panel to estimate threatspecific 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 Ma¯ui dolphins bycatch, and the conclusion that toxoplasmosis is a major cause of death for Ma¯ui dolphins (Roe et al. 2013). It is mortality associated with disease, not commercial fisheries bycatch, that results in the annual mortality of Ma¯ui dolphins exceeding PBR. Specific Fisheries Are or May Be Directly Associated With Potential Mortality of Ma¯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 Ma¯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 Ma¯ui dolphins are the gillnet and trawl fisheries that operate within the core range of the Ma¯ui dolphin. The Commission states that although the MMPA Import Provisions focuses on identifying particular offending fisheries, it is the statutory E:\FR\FM\10JYP1.SGM 10JYP1 jspears on DSK30JT082PROD with PROPOSALS Federal Register / Vol. 84, No. 132 / Wednesday, July 10, 2019 / Proposed Rules 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 Ma¯ui dolphin’s range.’’ Fisheries Inshore New Zealand stated that its information indicates that products sourced from Ma¯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 Ma¯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 Ma¯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; VerDate Sep<11>2014 16:40 Jul 09, 2019 Jkt 247001 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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯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 Ma¯ui dolphins. The risk assessment clearly identifies that disease, not commercial fisheries, is the primary factor causing the annual mortality of PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 32857 Ma¯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 Ma¯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 Ma¯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 from inshore fisheries, 1997–98 fishing year. Published Client Report on Contract 3024, Funded by Conservation Services Levy. Department of Conservation, Wellington, NZ, www.doc.govt.nz/ upload/documents/science-andtechnical/CSL3024.pdf. Cooke, J.G., D. Steel, R. Hamner, R. Constantine, and C.S. Scott. 2018. Population estimates and projections of Ma¯ui dolphin (Cephalorhyncus hectori Ma¯ui) based on genotype capturerecapture, 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 of threats to Ma¯ui’s dolphins. Ministry for Primary Industries and Department of Conservation, www.doc.govt.nz/gettinginvolved/consultations/current/threatmanagement-plan-review-for-Ma¯uisdolphin/. Currey, R. and D. Lundquist. 2016. Ma¯ui dolphin: 2016 update on New Zealand’s research and management approach. International Whaling Commission Scientific Committee submission available at: https://www.doc.govt.nz/ nature/native-animals/marinemammals/dolphins/Ma¯uidolphin/ resources/. Dawson SM, Slooten E (1988) Hector’s Dolphin Cephalorhynchus hectori: Distribution and abundance. Reports of the International Whaling Commission, Special Issue 9: 315–324. IWC (International Whaling Commission). 2018. Report of the Scientific Committee. Journal of Cetacean Research and Management 19 (Supplement):1–428. IWC (International Whaling Commission). In press. Report of the Scientific Committee. Journal of Cetacean Research and Management 20 (Supplement). IWC (2018) Report of the Scientific Committee Annex M Report of the Subcommittee on small cetaceans. IWC/67b/ E:\FR\FM\10JYP1.SGM 10JYP1 32858 Federal Register / Vol. 84, No. 132 / Wednesday, July 10, 2019 / Proposed Rules jspears on DSK30JT082PROD with PROPOSALS Rep01, Annex M. Summary of the 67th meeting of the International Whaling Commission: 10–14 September 2018 Vol. 34 No. 2 Online at: http://enb.iisd.org/ iwc/67/ IWC. 2017. Annex J: Report of the Working Group on Non-Deliberate Human-Induced Mortality of Cetaceans. Bled, Slovenia. Leathers, A. and A. Leslie. 2017. Gear switching to remove threats to Ma¯ui dolphin and address the socio-economic barriers to effective conservation. Unpublished document submitted to the International Whaling Commission Scientific Committee. Document SC/67a/ HIM14. 17 pp. National Marine Fisheries Service. 2017. Final Rule to List the Ma¯ui Dolphin as Endangered and the South Island Hector’s Dolphin as Threatened Under the Endangered Species Act. Docket No. 160614520–7805–02. Nelson, W. and C. Radford. 2018. Occurrence of Cephalorhynchus hectori in the coastal waters of Manukau and Taranaki, New Zealand. Second Deployment. Identifying temporal and spatial information for review of the 2012 Threat Management Plan.Department of Conservation, University of Auckland, and National Institute of Water and Atmospheric Research. 22 pp. NZDOC (New Zealand Department of Conservation). 2007. New Zealand Threat Classification System lists—2005. Wellington: Science & Technical Publishing, Department of Conservation. p.32. ISBN 978–0–478–14128–3. Roberts, J.O., D.N. Webber, C.T.T. Edwards, W.D. Roe, I.J. Doonan (2019). Spatial risk VerDate Sep<11>2014 16:40 Jul 09, 2019 Jkt 247001 assessment of threats to Hector’s and Ma¯ui dolphins (Cephalorhynchus hectori). New Zealand Aquatic Environment and Biodiversity Report No. 214. Ministry for Primary Industries, New Zealand. ‘‘Scientists Argue about New Zealand Fisheries,’’ Sustainable Fisheries, University of Washington (July 3, 2017) (including links to referenced studies) (https://sustainablefisheries-uw.org/newzealand-fisheries-fight/). Sharp, BR (2018). Spatially Explicit Fisheries Risk Assessment: A framework for quantifying and managing incidental commercial fisheries impacts on nontarget species’. Chapter 3 in: Aquatic Environment and Biodiversity Annual Review 2018. Ministry for Primary Industries, New Zealand. Slooten E (2013) Effectiveness of area-based management in reducing bycatch of the New Zealand dolphin. Endangered Species Research 20: 121–130. Slooten E., S.M. Dawson, and W.J. Rayment. 2004. Aerial surveys for coastal dolphins: Abundance of Hector’s dolphins off the South Island west coast, New Zealand. Marine Mammal Science 20: 117–130. Slooten E. and N. Davies. 2011. Hector’s dolphin risk assessments: Old and new analyses show consistent results. Journal of the Royal Society of New Zealand 42: 49–60. Slooten E, Dawson SM (2010) Assessing the effectiveness of conservation management decisions: Likely effects of new protection measures for Hector’s PO 00000 Frm 00011 Fmt 4702 Sfmt 9990 dolphin. Aquatic Conservation: Marine and Freshwater Ecosystems 20: 334–347. Slooten E, Dawson SM, Rayment WJ, Childerhouse SJ (2006) A new abundance estimate for Ma¯ui’s dolphin: What does it mean for managing this critically endangered species? Biological Conservation 128: 576–581. Slooten, E. and S.M. Dawson. 2018a. Updated population viability analysis, population trends and PBRs for Hector’s and Ma¯ui Dolphin. Available at: https:// www.regulations.gov/ document?D=NOAA-NMFS-2016-01180076. Slooten, E. and S.M. Dawson. 2017. Bycatch and PBRs for Ma¯ui and Hector’s dolphin. Unpublished document submitted to the International Whaling Commission Scientific Committee. Document SC/67a/ HIM07rev1. 16 pp. Taylor B, Lonergan M, Reeves R (2018) Panel comments and recommendations. Report to New Zealand Ministry for Primary Industries and Department of Conservation. https://www.doc.govt.nz/ globalassets/documents/conservation/ native-animals/marine-mammals/Ma¯uitmp/hectors-risk-assessment-workshoppanel-recommendations-appendix-1.pdf. 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] BILLING CODE 3510–22–P E:\FR\FM\10JYP1.SGM 10JYP1

Agencies

[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 http://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.

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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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