Implementation of Fish and Fish Product Import Provisions of the Marine Mammal Protection Act-Notification of Rejection of Petition and Issuance of Comparability Findings, 71297-71300 [2020-24416]

Download as PDF Federal Register / Vol. 85, No. 217 / Monday, November 9, 2020 / Proposed Rules DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 216 [Docket No. 201029–0282] RIN 0648–XG809 Implementation of Fish and Fish Product Import Provisions of the Marine Mammal Protection Act— Notification of Rejection of Petition and Issuance of Comparability Findings National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Denial of petition and issuance of comparability findings. AGENCY: Under the authority of the Marine Mammal Protection Act (MMPA), the NMFS Assistant Administrator for Fisheries (Assistant Administrator) has denied a petition for emergency rulemaking from Sea Shepherd Legal. Additionally, the Assistant Administrator has issued comparability findings for the Government of New Zealand’s (GNZ) following fisheries: West Coast North Island multi-species set net fishery, and West Coast North Island multi-species trawl fishery. NMFS bases the comparability findings on documentary evidence submitted by the GNZ and other relevant, readily-available information including the scientific literature. DATES: These comparability findings are valid for the period of November 6, 2020, through January 1, 2023, unless revoked by the Assistant Administrator in a subsequent action. 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: khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: Background The MMPA, 16 U.S.C. 1371 et seq., 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.’’ For purposes of applying this import restriction, the Secretary of Commerce ‘‘shall insist on reasonable proof from the government of any nation from which fish or fish VerDate Sep<11>2014 16:13 Nov 06, 2020 Jkt 253001 products will be exported to the United States of the effects on ocean mammals of the commercial fishing technology in use for such fish or fish products exported from such nation to the United States.’’ 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. Under the final rule, fish or fish products may not be imported into the United States from commercial fishing operations that result in the incidental mortality or serious injury of marine mammals in excess of U.S. standards (16 U.S.C. 1371(a)(2)). NMFS published a List of Foreign Fisheries (LOFF) on October 8, 2020 (85 FR 63527), to classify fisheries subject to the import requirements. Effective January 1, 2023, fish and fish products from fisheries identified by the Assistant Administrator in the LOFF may only be imported into the United States if the harvesting nation has applied for and received a comparability finding from NMFS for those fisheries on the LOFF. The rule established the procedures that a harvesting nation must follow, and the conditions it must meet, to receive a comparability finding for a fishery on the LOFF. The final rule established an exemption period, ending January 1, 2023, before imports would be subject to any trade restrictions (see 50 CFR 216.24(h)(2)(ii)). 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. In addition, pursuant to the MMPA Import Provisions rule, nothing prevents a nation from implementing a bycatch reduction regulatory program and seeking a comparability finding during the five-year exemption period. As discussed below, the Government of New Zealand (GNZ) has requested an early Comparability Finding for several of its fisheries. The Petition and Request for a Comparability Finding In February 2019, Sea Shepherd Legal, Sea Shepherd New Zealand Ltd., and Sea Shepherd Conservation Society petitioned NMFS ‘‘for an emergency PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 71297 rulemaking under the [MMPA], asking [the Government] to ban the import of fish caught in gillnet and trawl fisheries in the Ma¯ui dolphin’s range’’ because the Government of New Zealand’s (GNZ) 2012 regulations were insufficient to protect the Ma¯ui dolphin. On July 10, 2019, NMFS rejected the petition on the basis that the GNZ: (1) Had in place an existing regulatory program to reduce Ma¯ui dolphin bycatch; and (2) was proposing to implement in 2019 a regulatory program comparable in effectiveness to the United States which, when fully implemented, would likely further reduce risk and Ma¯ui dolphin bycatch below Potential Biological Removal level.1 On May 21, 2020, Sea Shepherd New Zealand and Sea Shepherd Conservation Society (collectively, ‘‘Plaintiffs’’) initiated a lawsuit in the Court of International Trade (CIT) alleging (1) NMFS’ failure to ban imports as required by the MMPA violated the Administrative Procedure Act (5 U.S.C. 706(1)), which prohibits an agency unlawfully withholding or unreasonably delaying action; and (2) that NMFS’ denial of its petition was arbitrary and capricious and also violated the Administrative Procedure Act (5 U.S.C. 706(2)(A)). On June 24, 2020, the GNZ announced its final fisheries measures for reducing bycatch of Ma¯ui dolphins (effective October 1, 2020) and its final Threat Management Plan (TMP). On July 1, 2020, Plaintiffs moved for a preliminary injunction to ban imports of seafood into the United States from New Zealand’s set-net and trawl fisheries. Before responding to Plaintiffs’ motion for a preliminary injunction, NMFS moved for a voluntary remand in order to reconsider the Plaintiffs’ petition for emergency rulemaking under the MMPA and requested that the court stay filing deadlines in the case pending decision of the voluntary remand. On July 15, 2020, the GNZ, acting through the Ministry for Primary Industries, requested that NOAA and NMFS perform a comparability assessment of the TMP and its regulatory program as it relates to Ma¯ui’s dolphins. The court held oral argument on August 6, 2020. On August 13, 2020, the CIT granted the voluntary remand. The CIT also provided the Plaintiffs the opportunity to supplement their petition within 14 days of the 1 16 U.S.C. 1362 The term ‘‘potential biological removal level’’ means the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. E:\FR\FM\09NOP1.SGM 09NOP1 71298 Federal Register / Vol. 85, No. 217 / Monday, November 9, 2020 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS court order. The CIT ordered that NMFS file the remand determination, including a determination on GNZ’s application for a comparability finding, with the court by October 30, 2020. On August 27, 2020, NMFS received the supplemental petition, which both maintains the grounds for action outlined in the original petition and includes information that arose after submission of the original petition. The supplemental petition directs attention to the following new information: (1) The receipt of data from the New Zealand government suggesting sightings of Ma¯ui dolphins on the East Coast of the North Island; (2) the issuance of the 2019 Draft TMP; (3) the final TMP announced on June 24, 2020; and (4) the 2020 draft LOFF. On September 29, 2020, NMFS published notification of receipt of a supplemental petition to ban imports of all fish and fish products from New Zealand that do not satisfy the MMPA (85 FR 60946). NMFS is undertaking this action in response to the court-ordered voluntary remand of NMFS’ July 10, 2019 decision on the 2019 emergency petition, the 2020 supplemental petition, and the request by the GNZ for a comparability finding during the exemption period. Ma¯ui Dolphin Ma¯ui dolphins (Cephalorhynchus hectori Ma¯ui) are the northernmost distinct subpopulation of Hector’s dolphin species (Cephalorhynchus hectori). The scientific community recognized Ma¯ui and South Island Hector’s dolphins as distinct subspecies in 2002. The Ma¯ui dolphin is endemic to the west coast of the North Island of New Zealand and is listed by IUCN as Critically Endangered and as an endangered species under the U.S. Endangered Species Act (16 U.S.C. 1531 et seq.). In 1970, scientists estimated that the Ma¯ui dolphin population numbered approximately 200 animals. The Ma¯ui dolphin population is currently estimated at 63 individuals (95% CI 57–75); with the population declining at the rate of 3–4 percent per year over the period 2001–16. Ma¯ui dolphin demographic models now estimate that the population may have stabilized or begun to increase in recent years following a decline in the past 20 to 30 years. Bycatch in gillnets (or set nets) and trawl nets are one of the threats to Ma¯ui dolphin. NMFS Determination on the Petition and the GNZ’s Comparability Application NMFS is rejecting the petition to ban the importation of commercial fish or products from fish harvested in a VerDate Sep<11>2014 16:13 Nov 06, 2020 Jkt 253001 manner that results in the incidental kill or incidental serious injury of Ma¯ui dolphins in excess of U.S. standards, and is issuing a Comparability Finding for the West Coast North Island multispecies set-net and trawl fisheries because the GNZ has implemented a regulatory program governing the bycatch of Ma¯ui dolphin that is comparable in effectiveness to U.S. standards. As a part of the comparability finding process set forth at 50 CFR 216.24(h)(6) and review of the petition, NMFS considered documentary evidence submitted by the GNZ and other relevant, readily-available information including scientific literature and government reports. Specifically, NMFS reviewed the 2019 petition and supplemental petition, supporting documents to those petitions, previous GNZ risk assessments and threat management plans, the 2019 and 2020 TMP and supplemental documents, the 2020 regulatory regime, and the GNZ’s comparability finding application. NMFS is rejecting the petition and has determined that the West Coast North Island multi-species set-net fishery 2 and West Coast North Island multi-species trawl fishery 3 have met the MMPA’s requirements to receive comparability findings. In accordance with 50 CFR 216.24(h)(8)(vii), a comparability finding will be terminated or revoked if NMFS determines that the requirements of 50 CFR 216.24(h)(6) are no longer being met. The rationale for the determination announced in this notice is articulated in an analysis of the GNZ application for a comparability finding. The analysis is available from NMFS (see FOR FURTHER INFORMATION CONTACT). The comparability findings for the GNZ’s affected fisheries included in this Federal Register notice will remain valid through January 1, 2023. All other 2 The target species of this multi-species fishery are: Australian salmon (Arripis trutta), Bluefin gurnard (Chelidonichthys kumu), Common warehou (Seriolella brama), Flatfishes nei (Pleuronectiformes), Flathead grey mullet (Mugil cephalus), Silver seabream (Pagrus auratus), Spotted estuary smooth-hound (Mustelus lenticulatus), Tope shark (Galeorhinus galeus), White trevally (Pseudocaranx dentex). 3 The target species of this multi-species fishery are: Australian salmon (Arripis trutta), Blue grenadier (Macruronus novaezelandiae), Bluefin gurnard (Chelidonichthys kumu), Common warehou (Seriolella brama), Jack and horse mackerels nei (Trachurus spp), John dory (Zeus faber), Silver gemfish (Rexea solandri), Silver seabream (Pagrus auratus), Snoek (Thyrsites atun), Spiny dogfish (Squalus acanthias), Spotted estuary smooth-hound (Mustelus lenticulatus), Tarakihi/jackass morwong (Nemadactylus macropterus), Tarakihi/jackass morwong (Nemadactylus macropterus), Tope shark (Galeorhinus galeus), Warehou nei (Seriolella spp), White trevally (Pseudocaranx dentex), Yellowtail amberjack (Seriola lalandi). PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 exempt and export fisheries operating under the control of the GNZ are subject to the exemption period under 50 CFR 216.24(h)(2)(ii). The GNZ is still required to provide all reports and updates to its fisheries on NMFS’ LOFF in accordance with 50 CFR 216.24(h) for these fisheries and all other GNZ fisheries on NMFS’ LOFF. Responses to Comments on the Notification of the Petition NMFS received nine sets of comments on the amended petition from fishing industry groups, environmental nongovernmental organizations (NGOs), private citizens, the Marine Mammal Commission (MMC), and Te Ohu Kaimoana. General Comments Comment 1: Comments submitted by members of the general public, NGOs, and the MMC supported initiating rulemaking to ban imports of fish and fish products from New Zealand set-net and trawl fisheries operating in Ma¯ui dolphin habitat, alleging that the GNZ’s regulatory program does not go far enough in protecting Maui dolphins. Response: NMFS disagrees. The GNZ regulatory program that came into effect on October 1, 2020, is comparable in effectiveness to the U.S. regulatory program. The GNZ prohibits intentional killing and injury of marine mammals and has vessel registration, bycatch reporting, and a monitoring program comparable to the U.S. regulatory program. The GNZ’s regulatory program includes calculated bycatch estimates, bycatch limits (potential biological removal level (PBR)) and a population sustainability threshold (PST), and a bycatch mitigation program to reduce and maintain Ma¯ui dolphin bycatch below PBR. The program also includes a management review trigger, which is designed to prevent bycatch from exceeding PBR and allows for the immediate imposition of additional bycatch reduction measures in the event that a fishing-related incident does occur. The regulatory program, similar to the U.S. Take Reduction process, includes public participation and periodic review and modification to the regulatory program to ensure that it is meeting its targets and objectives. The regulatory program also includes research projects to improve understanding of Ma¯ui dolphins and the threats they face. Emergency Action Comment 2: Both NGOs and the MMC assert that emergency rulemaking to ban imports is required because of the small population of Ma¯ui dolphins. The MMC E:\FR\FM\09NOP1.SGM 09NOP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 217 / Monday, November 9, 2020 / Proposed Rules states that given the small numbers of Ma¯ui dolphins remaining, the population’s trend over recent decades, the low capacity of the species to withstand further losses, and the ongoing number of deaths of Hector’s and Maui dolphins attributed to fisheries bycatch, it is evident that commercial fisheries have and may be continuing to have an impact on the Ma¯ui dolphin population. Response: NMFS disagrees. Ma¯ui dolphin demographic models now estimate that the population may have stabilized or begun to increase in recent years following a decline in the past 20 to 30 years. The MMC did note that population estimates of Ma¯ui dolphins covering the period since the GNZ established its previous fishery-specific restrictions have varied between 55 and 69 individuals. The MMC also acknowledges that these and earlier estimates suggest that the protection provided by the GNZ’s previous (prior to October 1, 2020) regulatory program has slowed the population’s decline. Moreover, contrary to claims by the petitioners and the MMC that there are an estimated 14–17 reproductive-aged females remaining, scientists currently place these estimates at 20–35 adult females. According to the GNZ’s onboard observer program, there have been no observed bycatch events of Ma¯ui or Hector’s dolphins in set-net or trawl fisheries operating off the west coast of the North Island. Since 2012, fisheries observers sighted only two free-swimming Cephalorhynchus spp. (Ma¯ui/Hector’s dolphin). Both sightings occurred from trawl vessels, in areas closed to set-nets. There has been one self-reported capture of a Cephalorhynchus spp. (Ma¯ui/Hector’s dolphin) off the west coast of the North Island in January 2012 on a commercial set-net vessel fishing off Cape Egmont, Taranaki. Between 1921 and present there have been five beachcast recovered carcasses of Cephalorhynchus spp. dolphins (Ma¯ui/Hector’s dolphin) off the West Coast North Island where fishing was implicated via necropsy in the cause of death, the last in 2012. In the absence of a declining population or ongoing incidental mortality or serious injury, the petitioners and MMC have failed to demonstrate that the incidental mortality and serious injury of Ma¯ui/ Hector’s dolphin from commercial fisheries is having, or is likely to have, an immediate and significant adverse impact on the subspecies. Emergency rulemaking is not warranted. VerDate Sep<11>2014 16:13 Nov 06, 2020 Jkt 253001 Extent of the West Coast Distribution and the East Coast Comment 3: NGOs claim that sightings in the northern and southern extent of the Ma¯ui dolphin distribution along the West Coast of the North Island are evidence of a resident population and necessitate fisheries restrictions in these areas. Response: The GNZ’s regulatory program includes fishery-specific restrictions in the northern and southern ranges and the transitory zone to reduce the bycatch risk in these areas. This action was taken not withstanding that these areas represent a transient and small proportion of the Ma¯ui dolphin distribution. These measures concentrate the fishery-specific restrictions in the areas with the greatest overlap between fishing activities and the Ma¯ui dolphin population (core area), virtually eliminating the bycatch risk from set-nets and significantly reducing the trawl bycatch risk for Ma¯ui dolphins in this area. The GNZ’s regulatory measures, in all likelihood, will reduce bycatch below PBR, making them comparable in effectiveness to U.S. standards. Comment 4: NGOs claim that a resident population of Ma¯ui dolphins exists off the East Coast of the North Island, based on sightings. The NGOs assert that the GNZ must extend protection to this area including restrictions on set-nets and trawl gear. Response: The GNZ, the New Zealand fishing industry, and Te Ohu Kaimoana (a New Zealand charitable trust for Maori fishing rights) assert that the petitioners have misrepresented the GNZ sighting data (e.g., claiming all sightings as Ma¯ui dolphins) and that no genetically-tested Cephalorhynchus hectori sp. dolphin found on the East Coast of the North Island has been identified as a Ma¯ui dolphin. The map provided by the petitioners in the supplemental petition is a distortion of the sighting information available through the GNZ’s Department of Conservation. The sighting information does not denote any dolphins on the East Coast as being Ma¯ui dolphins—to the contrary, all are denoted as being Hector’s dolphins. To date, there is no evidence of a resident dolphin population of either subspecies in any North Island location outside of the recognized core range of Ma¯ui dolphins (i.e., there have been no verified sightings of breeding aggregations or newborn calves, and the sightings do not conform to any predictable seasonal pattern). The literature, the absence of far-ranging migratory movements by Ma¯ui dolphins, and the sighting data PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 71299 clearly show the absence of confirmed sightings of Ma¯ui dolphin on the east coast of the North Island and do not support the existence of either a resident or ‘‘transient’’ population of Ma¯ui dolphins. Risk Assessment and Habitat Models Comment 5: NGOs claim that the GNZ risk assessment model underestimates fisheries mortality. Likewise, they claim that the habitat model is flawed by restricting the overlap of the Ma¯ui dolphin distribution and overestimating the benefits of the protective measures. The MMC states that the model uses biased and high abundance estimates, a high reproductive rate, and an assumed figure for calf survival. The MMC suggests that NMFS use a precautionary approach when considering the GNZ’s comparability finding application and the data used to support its request. Response: As alleged by the commenters, the GNZ’s risk assessment methodology does not use the low overall observer coverage and the likely under-reporting of captures by fishers. Rather, the model pooled all available observer data for set-netting including that for the South Island coastal fleet where observer coverage is higher and the likelihood of a dolphin encountering a net was higher and estimated the likelihood of a Ma¯ui dolphin being captured in a set-net. As the model estimates probability of capture or death per dolphin, per fishing event, it is insensitive to actual population size and can be used to evaluate risk in locations where population size is unknown or hypothetical. NMFS notes that while some scientists may disagree about the assumptions that serve as the basis for the risk assessment models that underpin the GNZ bycatch estimates, NMFS finds that the approach taken in the risk assessment is reasonable. The MMPA Import Provisions do not mandate that the United States (specifically NMFS) arbitrate such scientific debates or disagreements. The MMPA Import Provisions do not require that a nation’s approach be identical to the U.S. regulatory program or standards, just comparable in effectiveness to those standards. The MMPA Import Provisions also do not require an evaluation of the implementation of historic bycatch reduction or regulatory programs when making a comparability finding. The standard of the MMPA Import Provisions is that a nation currently has a regulatory program comparable in effectiveness to the U.S. regulatory program. Based on NMFS’ analysis of all readily available data, the petition, and E:\FR\FM\09NOP1.SGM 09NOP1 71300 Federal Register / Vol. 85, No. 217 / Monday, November 9, 2020 / Proposed Rules the reasonable proof supplied by the GNZ, the GNZ regulatory program that came into effect on October 1, 2020, is comparable in effectiveness to the U.S. regulatory program. khammond on DSKJM1Z7X2PROD with PROPOSALS Bycatch Limits Comment 6: The NGOs claim that the GNZ’s use of the PST instead of PBR increases the level of acceptable bycatch. They also assert that PBR should be calculated using a net productivity rate of 0.018, resulting in a PBR of one dolphin every 20.6 years. Response: The NGOs and petitioners are in error on two points. First, the GNZ PST as calculated in the final TMP (PST = 0.14) is a comparable scientific metric to PBR (PBR = 0.11). Regardless of the differences in the PBR/PST calculations, the GNZ, for the purpose of its comparability finding application, is using and has calculated a PBR for Ma¯ui dolphins of 0.11 as its biological threshold or bycatch limit. Therefore, the standard used by the GNZ is PBR and is comparable to U.S. standards, and NMFS finds the underlying data inputs appropriate. Second, the NGOs and petitioners’ calculation does not conform to the U.S. ‘‘Guidelines for Preparing Stock Assessment Reports Pursuant to the 1994 Amendments to the MMPA,’’ which states: Substitution of other values of the maximum net productivity rate (Rmax) should be made with caution, and only when reliable stock-specific information is available on Rmax (e.g., estimates published in peer-reviewed articles or accepted by review groups such as the MMPA Scientific Review Groups or the Scientific Committee of the International Whaling Commission). The NGOs’ and the petitioners’ calculation relies on dated estimates for Rmax, is inconsistent with the known age at first reproduction of Ma¯ui dolphins, underestimates maximum age for this species, and is contrary to more recent estimates of Rmax in the literature. Moreover, the Ma¯ui dolphin demographic models now estimate that the population may have stabilized or begun to increase in recent years following a decline in the past 20 to 30 years. Therefore, NMFS finds the NGO’s and petitioners’ PBR estimate is not comparable to U.S. standards. Monitoring Comment 7: The NGOs claim that the GNZ’s requirement for electronic monitoring of set-net and trawl fisheries is an inadequate measure. They base this claim on supposition that too few fishing vessels have been outfitted with camera systems and that such systems will not be fully operational until 2023. VerDate Sep<11>2014 16:13 Nov 06, 2020 Jkt 253001 The MMC claims that the GNZ, under its new regulatory program, does not increase observer coverage in the set-net fishery and that camera monitoring is only on the South Island. Response: Both the NGOs and the MMC are incorrect. Since November 1, 2019, on-board cameras are required on any set-net or trawl vessel (≥8 m and ≤29 m in registered length). The area where onboard cameras are required covers the coastal area of the Ma¯ui dolphin habitat zone, except for a small portion in the far north estimated to have a low density of dolphins, and extends into the northern portion of the southern transition zone. According to the GNZ, the requirement applies to 28 vessels, of which 20 have opted into the on-board camera requirement; the other eight vessels subject to the regulatory requirement are currently not operating in the defined area. Any authorized vessel without on-board cameras must carry an observer. Thus, fishing vessels currently operating in the core Ma¯ui dolphin habitat zone have 100 percent coverage of electronic monitoring. The GNZ bycatch monitoring program is comparable in effectiveness to U.S. standards. Finally, according to the GNZ, the 2023 date refers to broader implementation of on-board cameras including on the South Island and not the implementation of this program to the West Coast of the North Island. Traceability Comment 8: NGOs claim New Zealand’s fishery traceability system is not structured to trace fishery catches and/or marine mammal bycatch incidents back to specific fisheries management areas. They assert that NMFS should not use this deficiency as an excuse to not impose the required fishery product import bans under the MMPA. The NGOs also claim that New Zealand’s marine mammal bycatch traceability system is not consistent with the standards imposed on fisheries in the United States. Response: As discussed in the response to comment 7, the GNZ’s monitoring program, including its observer programs and on-board cameras, is comparable in effectiveness to U.S. standards requiring monitoring. The GNZ’s monitoring program is sufficient to detect and estimate bycatch. The MMPA Import Provisions do not require, as a condition for a comparability finding, a seafood traceability system. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 Dated: October 26, 2020. Paul N. Doremus, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. 2020–24416 Filed 11–6–20; 8:45 am] BILLING CODE 3510–22–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 201102–0286; RTID 0648– XP014] Pacific Island Pelagic Fisheries; 2021 U.S. Territorial Longline Bigeye Tuna Catch Limits National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed specifications; request for comments. AGENCY: NMFS proposes a 2021 limit of 2,000 metric tons (t) of longlinecaught bigeye tuna for each U.S. Pacific territory (American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) (the territories)). NMFS would allow each territory to allocate up to 1,500 t in 2021 to U.S. longline fishing vessels through specified fishing agreements that meet established criteria. However, the overall allocation limit among all territories may not exceed 3,000 t. As an accountability measure, NMFS would monitor, attribute, and restrict (if necessary) catches of longline-caught bigeye tuna, including catches made under a specified fishing agreement. The proposed catch limits and accountability measures would support the long-term sustainability of fishery resources of the U.S. Pacific Islands. DATES: NMFS must receive comments by November 24, 2020. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2020–0010, by either of the following methods: • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20200010, click the ‘‘Comment Now!’’ icon, complete the required fields, and enter or attach your comments. • Mail: Send written comments to Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands SUMMARY: E:\FR\FM\09NOP1.SGM 09NOP1

Agencies

[Federal Register Volume 85, Number 217 (Monday, November 9, 2020)]
[Proposed Rules]
[Pages 71297-71300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24416]



[[Page 71297]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 201029-0282]
RIN 0648-XG809


Implementation of Fish and Fish Product Import Provisions of the 
Marine Mammal Protection Act--Notification of Rejection of Petition and 
Issuance of Comparability Findings

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

ACTION: Denial of petition and issuance of comparability findings.

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SUMMARY: Under the authority of the Marine Mammal Protection Act 
(MMPA), the NMFS Assistant Administrator for Fisheries (Assistant 
Administrator) has denied a petition for emergency rulemaking from Sea 
Shepherd Legal. Additionally, the Assistant Administrator has issued 
comparability findings for the Government of New Zealand's (GNZ) 
following fisheries: West Coast North Island multi-species set net 
fishery, and West Coast North Island multi-species trawl fishery. NMFS 
bases the comparability findings on documentary evidence submitted by 
the GNZ and other relevant, readily-available information including the 
scientific literature.

DATES: These comparability findings are valid for the period of 
November 6, 2020, through January 1, 2023, unless revoked by the 
Assistant Administrator in a subsequent action.

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

    The MMPA, 16 U.S.C. 1371 et seq., 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.'' For purposes of 
applying this import restriction, the Secretary of Commerce ``shall 
insist on reasonable proof from the government of any nation from which 
fish or fish products will be exported to the United States of the 
effects on ocean mammals of the commercial fishing technology in use 
for such fish or fish products exported from such nation to the United 
States.''
    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.
    Under the final rule, fish or fish products may not be imported 
into the United States from commercial fishing operations that result 
in the incidental mortality or serious injury of marine mammals in 
excess of U.S. standards (16 U.S.C. 1371(a)(2)). NMFS published a List 
of Foreign Fisheries (LOFF) on October 8, 2020 (85 FR 63527), to 
classify fisheries subject to the import requirements. Effective 
January 1, 2023, fish and fish products from fisheries identified by 
the Assistant Administrator in the LOFF may only be imported into the 
United States if the harvesting nation has applied for and received a 
comparability finding from NMFS for those fisheries on the LOFF. The 
rule established the procedures that a harvesting nation must follow, 
and the conditions it must meet, to receive a comparability finding for 
a fishery on the LOFF. The final rule established an exemption period, 
ending January 1, 2023, before imports would be subject to any trade 
restrictions (see 50 CFR 216.24(h)(2)(ii)).
    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. In addition, pursuant to the 
MMPA Import Provisions rule, nothing prevents a nation from 
implementing a bycatch reduction regulatory program and seeking a 
comparability finding during the five-year exemption period. As 
discussed below, the Government of New Zealand (GNZ) has requested an 
early Comparability Finding for several of its fisheries.

The Petition and Request for a Comparability Finding

    In February 2019, Sea Shepherd Legal, Sea Shepherd New Zealand 
Ltd., and Sea Shepherd Conservation Society petitioned NMFS ``for an 
emergency rulemaking under the [MMPA], asking [the Government] to ban 
the import of fish caught in gillnet and trawl fisheries in the 
M[amacr]ui dolphin's range'' because the Government of New Zealand's 
(GNZ) 2012 regulations were insufficient to protect the M[amacr]ui 
dolphin. On July 10, 2019, NMFS rejected the petition on the basis that 
the GNZ: (1) Had in place an existing regulatory program to reduce 
M[amacr]ui dolphin bycatch; and (2) was proposing to implement in 2019 
a regulatory program comparable in effectiveness to the United States 
which, when fully implemented, would likely further reduce risk and 
M[amacr]ui dolphin bycatch below Potential Biological Removal level.\1\
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    \1\ 16 U.S.C. 1362 The term ``potential biological removal 
level'' means the maximum number of animals, not including natural 
mortalities, that may be removed from a marine mammal stock while 
allowing that stock to reach or maintain its optimum sustainable 
population.
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    On May 21, 2020, Sea Shepherd New Zealand and Sea Shepherd 
Conservation Society (collectively, ``Plaintiffs'') initiated a lawsuit 
in the Court of International Trade (CIT) alleging (1) NMFS' failure to 
ban imports as required by the MMPA violated the Administrative 
Procedure Act (5 U.S.C. 706(1)), which prohibits an agency unlawfully 
withholding or unreasonably delaying action; and (2) that NMFS' denial 
of its petition was arbitrary and capricious and also violated the 
Administrative Procedure Act (5 U.S.C. 706(2)(A)). On June 24, 2020, 
the GNZ announced its final fisheries measures for reducing bycatch of 
M[amacr]ui dolphins (effective October 1, 2020) and its final Threat 
Management Plan (TMP). On July 1, 2020, Plaintiffs moved for a 
preliminary injunction to ban imports of seafood into the United States 
from New Zealand's set-net and trawl fisheries.
    Before responding to Plaintiffs' motion for a preliminary 
injunction, NMFS moved for a voluntary remand in order to reconsider 
the Plaintiffs' petition for emergency rulemaking under the MMPA and 
requested that the court stay filing deadlines in the case pending 
decision of the voluntary remand.
    On July 15, 2020, the GNZ, acting through the Ministry for Primary 
Industries, requested that NOAA and NMFS perform a comparability 
assessment of the TMP and its regulatory program as it relates to 
M[amacr]ui's dolphins. The court held oral argument on August 6, 2020. 
On August 13, 2020, the CIT granted the voluntary remand. The CIT also 
provided the Plaintiffs the opportunity to supplement their petition 
within 14 days of the

[[Page 71298]]

court order. The CIT ordered that NMFS file the remand determination, 
including a determination on GNZ's application for a comparability 
finding, with the court by October 30, 2020.
    On August 27, 2020, NMFS received the supplemental petition, which 
both maintains the grounds for action outlined in the original petition 
and includes information that arose after submission of the original 
petition. The supplemental petition directs attention to the following 
new information: (1) The receipt of data from the New Zealand 
government suggesting sightings of M[amacr]ui dolphins on the East 
Coast of the North Island; (2) the issuance of the 2019 Draft TMP; (3) 
the final TMP announced on June 24, 2020; and (4) the 2020 draft LOFF. 
On September 29, 2020, NMFS published notification of receipt of a 
supplemental petition to ban imports of all fish and fish products from 
New Zealand that do not satisfy the MMPA (85 FR 60946).
    NMFS is undertaking this action in response to the court-ordered 
voluntary remand of NMFS' July 10, 2019 decision on the 2019 emergency 
petition, the 2020 supplemental petition, and the request by the GNZ 
for a comparability finding during the exemption period.

M[amacr]ui Dolphin

    M[amacr]ui dolphins (Cephalorhynchus hectori M[amacr]ui) are the 
northernmost distinct subpopulation of Hector's dolphin species 
(Cephalorhynchus hectori). The scientific community recognized 
M[amacr]ui and South Island Hector's dolphins as distinct subspecies in 
2002. The M[amacr]ui dolphin is endemic to the west coast of the North 
Island of New Zealand and is listed by IUCN as Critically Endangered 
and as an endangered species under the U.S. Endangered Species Act (16 
U.S.C. 1531 et seq.). In 1970, scientists estimated that the M[amacr]ui 
dolphin population numbered approximately 200 animals. The M[amacr]ui 
dolphin population is currently estimated at 63 individuals (95% CI 57-
75); with the population declining at the rate of 3-4 percent per year 
over the period 2001-16. M[amacr]ui dolphin demographic models now 
estimate that the population may have stabilized or begun to increase 
in recent years following a decline in the past 20 to 30 years. Bycatch 
in gillnets (or set nets) and trawl nets are one of the threats to 
M[amacr]ui dolphin.

NMFS Determination on the Petition and the GNZ's Comparability 
Application

    NMFS is rejecting the petition to ban the importation of commercial 
fish or products from fish harvested in a manner that results in the 
incidental kill or incidental serious injury of M[amacr]ui dolphins in 
excess of U.S. standards, and is issuing a Comparability Finding for 
the West Coast North Island multi-species set-net and trawl fisheries 
because the GNZ has implemented a regulatory program governing the 
bycatch of M[amacr]ui dolphin that is comparable in effectiveness to 
U.S. standards.
    As a part of the comparability finding process set forth at 50 CFR 
216.24(h)(6) and review of the petition, NMFS considered documentary 
evidence submitted by the GNZ and other relevant, readily-available 
information including scientific literature and government reports. 
Specifically, NMFS reviewed the 2019 petition and supplemental 
petition, supporting documents to those petitions, previous GNZ risk 
assessments and threat management plans, the 2019 and 2020 TMP and 
supplemental documents, the 2020 regulatory regime, and the GNZ's 
comparability finding application.
    NMFS is rejecting the petition and has determined that the West 
Coast North Island multi-species set-net fishery \2\ and West Coast 
North Island multi-species trawl fishery \3\ have met the MMPA's 
requirements to receive comparability findings. In accordance with 50 
CFR 216.24(h)(8)(vii), a comparability finding will be terminated or 
revoked if NMFS determines that the requirements of 50 CFR 216.24(h)(6) 
are no longer being met. The rationale for the determination announced 
in this notice is articulated in an analysis of the GNZ application for 
a comparability finding. The analysis is available from NMFS (see FOR 
FURTHER INFORMATION CONTACT).
---------------------------------------------------------------------------

    \2\ The target species of this multi-species fishery are: 
Australian salmon (Arripis trutta), Bluefin gurnard (Chelidonichthys 
kumu), Common warehou (Seriolella brama), Flatfishes nei 
(Pleuronectiformes), Flathead grey mullet (Mugil cephalus), Silver 
seabream (Pagrus auratus), Spotted estuary smooth-hound (Mustelus 
lenticulatus), Tope shark (Galeorhinus galeus), White trevally 
(Pseudocaranx dentex).
    \3\ The target species of this multi-species fishery are: 
Australian salmon (Arripis trutta), Blue grenadier (Macruronus 
novaezelandiae), Bluefin gurnard (Chelidonichthys kumu), Common 
warehou (Seriolella brama), Jack and horse mackerels nei (Trachurus 
spp), John dory (Zeus faber), Silver gemfish (Rexea solandri), 
Silver seabream (Pagrus auratus), Snoek (Thyrsites atun), Spiny 
dogfish (Squalus acanthias), Spotted estuary smooth-hound (Mustelus 
lenticulatus), Tarakihi/jackass morwong (Nemadactylus macropterus), 
Tarakihi/jackass morwong (Nemadactylus macropterus), Tope shark 
(Galeorhinus galeus), Warehou nei (Seriolella spp), White trevally 
(Pseudocaranx dentex), Yellowtail amberjack (Seriola lalandi).
---------------------------------------------------------------------------

    The comparability findings for the GNZ's affected fisheries 
included in this Federal Register notice will remain valid through 
January 1, 2023. All other exempt and export fisheries operating under 
the control of the GNZ are subject to the exemption period under 50 CFR 
216.24(h)(2)(ii). The GNZ is still required to provide all reports and 
updates to its fisheries on NMFS' LOFF in accordance with 50 CFR 
216.24(h) for these fisheries and all other GNZ fisheries on NMFS' 
LOFF.

Responses to Comments on the Notification of the Petition

    NMFS received nine sets of comments on the amended petition from 
fishing industry groups, environmental non-governmental organizations 
(NGOs), private citizens, the Marine Mammal Commission (MMC), and Te 
Ohu Kaimoana.

General Comments

    Comment 1: Comments submitted by members of the general public, 
NGOs, and the MMC supported initiating rulemaking to ban imports of 
fish and fish products from New Zealand set-net and trawl fisheries 
operating in M[amacr]ui dolphin habitat, alleging that the GNZ's 
regulatory program does not go far enough in protecting Maui dolphins.
    Response: NMFS disagrees. The GNZ regulatory program that came into 
effect on October 1, 2020, is comparable in effectiveness to the U.S. 
regulatory program. The GNZ prohibits intentional killing and injury of 
marine mammals and has vessel registration, bycatch reporting, and a 
monitoring program comparable to the U.S. regulatory program. The GNZ's 
regulatory program includes calculated bycatch estimates, bycatch 
limits (potential biological removal level (PBR)) and a population 
sustainability threshold (PST), and a bycatch mitigation program to 
reduce and maintain M[amacr]ui dolphin bycatch below PBR. The program 
also includes a management review trigger, which is designed to prevent 
bycatch from exceeding PBR and allows for the immediate imposition of 
additional bycatch reduction measures in the event that a fishing-
related incident does occur. The regulatory program, similar to the 
U.S. Take Reduction process, includes public participation and periodic 
review and modification to the regulatory program to ensure that it is 
meeting its targets and objectives. The regulatory program also 
includes research projects to improve understanding of M[amacr]ui 
dolphins and the threats they face.

Emergency Action

    Comment 2: Both NGOs and the MMC assert that emergency rulemaking 
to ban imports is required because of the small population of 
M[amacr]ui dolphins. The MMC

[[Page 71299]]

states that given the small numbers of M[amacr]ui dolphins remaining, 
the population's trend over recent decades, the low capacity of the 
species to withstand further losses, and the ongoing number of deaths 
of Hector's and Maui dolphins attributed to fisheries bycatch, it is 
evident that commercial fisheries have and may be continuing to have an 
impact on the M[amacr]ui dolphin population.
    Response: NMFS disagrees. M[amacr]ui dolphin demographic models now 
estimate that the population may have stabilized or begun to increase 
in recent years following a decline in the past 20 to 30 years. The MMC 
did note that population estimates of M[amacr]ui dolphins covering the 
period since the GNZ established its previous fishery-specific 
restrictions have varied between 55 and 69 individuals. The MMC also 
acknowledges that these and earlier estimates suggest that the 
protection provided by the GNZ's previous (prior to October 1, 2020) 
regulatory program has slowed the population's decline. Moreover, 
contrary to claims by the petitioners and the MMC that there are an 
estimated 14-17 reproductive-aged females remaining, scientists 
currently place these estimates at 20-35 adult females. According to 
the GNZ's onboard observer program, there have been no observed bycatch 
events of M[amacr]ui or Hector's dolphins in set-net or trawl fisheries 
operating off the west coast of the North Island. Since 2012, fisheries 
observers sighted only two free-swimming Cephalorhynchus spp. 
(M[amacr]ui/Hector's dolphin). Both sightings occurred from trawl 
vessels, in areas closed to set-nets. There has been one self-reported 
capture of a Cephalorhynchus spp. (M[amacr]ui/Hector's dolphin) off the 
west coast of the North Island in January 2012 on a commercial set-net 
vessel fishing off Cape Egmont, Taranaki. Between 1921 and present 
there have been five beachcast recovered carcasses of Cephalorhynchus 
spp. dolphins (M[amacr]ui/Hector's dolphin) off the West Coast North 
Island where fishing was implicated via necropsy in the cause of death, 
the last in 2012. In the absence of a declining population or ongoing 
incidental mortality or serious injury, the petitioners and MMC have 
failed to demonstrate that the incidental mortality and serious injury 
of M[amacr]ui/Hector's dolphin from commercial fisheries is having, or 
is likely to have, an immediate and significant adverse impact on the 
subspecies. Emergency rulemaking is not warranted.

Extent of the West Coast Distribution and the East Coast

    Comment 3: NGOs claim that sightings in the northern and southern 
extent of the M[amacr]ui dolphin distribution along the West Coast of 
the North Island are evidence of a resident population and necessitate 
fisheries restrictions in these areas.
    Response: The GNZ's regulatory program includes fishery-specific 
restrictions in the northern and southern ranges and the transitory 
zone to reduce the bycatch risk in these areas. This action was taken 
not withstanding that these areas represent a transient and small 
proportion of the M[amacr]ui dolphin distribution. These measures 
concentrate the fishery-specific restrictions in the areas with the 
greatest overlap between fishing activities and the M[amacr]ui dolphin 
population (core area), virtually eliminating the bycatch risk from 
set-nets and significantly reducing the trawl bycatch risk for 
M[amacr]ui dolphins in this area. The GNZ's regulatory measures, in all 
likelihood, will reduce bycatch below PBR, making them comparable in 
effectiveness to U.S. standards.
    Comment 4: NGOs claim that a resident population of M[amacr]ui 
dolphins exists off the East Coast of the North Island, based on 
sightings. The NGOs assert that the GNZ must extend protection to this 
area including restrictions on set-nets and trawl gear.
    Response: The GNZ, the New Zealand fishing industry, and Te Ohu 
Kaimoana (a New Zealand charitable trust for Maori fishing rights) 
assert that the petitioners have misrepresented the GNZ sighting data 
(e.g., claiming all sightings as M[amacr]ui dolphins) and that no 
genetically-tested Cephalorhynchus hectori sp. dolphin found on the 
East Coast of the North Island has been identified as a M[amacr]ui 
dolphin. The map provided by the petitioners in the supplemental 
petition is a distortion of the sighting information available through 
the GNZ's Department of Conservation. The sighting information does not 
denote any dolphins on the East Coast as being M[amacr]ui dolphins--to 
the contrary, all are denoted as being Hector's dolphins. To date, 
there is no evidence of a resident dolphin population of either 
subspecies in any North Island location outside of the recognized core 
range of M[amacr]ui dolphins (i.e., there have been no verified 
sightings of breeding aggregations or newborn calves, and the sightings 
do not conform to any predictable seasonal pattern). The literature, 
the absence of far-ranging migratory movements by M[amacr]ui dolphins, 
and the sighting data clearly show the absence of confirmed sightings 
of M[amacr]ui dolphin on the east coast of the North Island and do not 
support the existence of either a resident or ``transient'' population 
of M[amacr]ui dolphins.

Risk Assessment and Habitat Models

    Comment 5: NGOs claim that the GNZ risk assessment model 
underestimates fisheries mortality. Likewise, they claim that the 
habitat model is flawed by restricting the overlap of the M[amacr]ui 
dolphin distribution and overestimating the benefits of the protective 
measures. The MMC states that the model uses biased and high abundance 
estimates, a high reproductive rate, and an assumed figure for calf 
survival. The MMC suggests that NMFS use a precautionary approach when 
considering the GNZ's comparability finding application and the data 
used to support its request.
    Response: As alleged by the commenters, the GNZ's risk assessment 
methodology does not use the low overall observer coverage and the 
likely under-reporting of captures by fishers. Rather, the model pooled 
all available observer data for set-netting including that for the 
South Island coastal fleet where observer coverage is higher and the 
likelihood of a dolphin encountering a net was higher and estimated the 
likelihood of a M[amacr]ui dolphin being captured in a set-net. As the 
model estimates probability of capture or death per dolphin, per 
fishing event, it is insensitive to actual population size and can be 
used to evaluate risk in locations where population size is unknown or 
hypothetical.
    NMFS notes that while some scientists may disagree about the 
assumptions that serve as the basis for the risk assessment models that 
underpin the GNZ bycatch estimates, NMFS finds that the approach taken 
in the risk assessment is reasonable. The MMPA Import Provisions do not 
mandate that the United States (specifically NMFS) arbitrate such 
scientific debates or disagreements. The MMPA Import Provisions do not 
require that a nation's approach be identical to the U.S. regulatory 
program or standards, just comparable in effectiveness to those 
standards. The MMPA Import Provisions also do not require an evaluation 
of the implementation of historic bycatch reduction or regulatory 
programs when making a comparability finding. The standard of the MMPA 
Import Provisions is that a nation currently has a regulatory program 
comparable in effectiveness to the U.S. regulatory program. Based on 
NMFS' analysis of all readily available data, the petition, and

[[Page 71300]]

the reasonable proof supplied by the GNZ, the GNZ regulatory program 
that came into effect on October 1, 2020, is comparable in 
effectiveness to the U.S. regulatory program.

Bycatch Limits

    Comment 6: The NGOs claim that the GNZ's use of the PST instead of 
PBR increases the level of acceptable bycatch. They also assert that 
PBR should be calculated using a net productivity rate of 0.018, 
resulting in a PBR of one dolphin every 20.6 years.
    Response: The NGOs and petitioners are in error on two points. 
First, the GNZ PST as calculated in the final TMP (PST = 0.14) is a 
comparable scientific metric to PBR (PBR = 0.11). Regardless of the 
differences in the PBR/PST calculations, the GNZ, for the purpose of 
its comparability finding application, is using and has calculated a 
PBR for M[amacr]ui dolphins of 0.11 as its biological threshold or 
bycatch limit. Therefore, the standard used by the GNZ is PBR and is 
comparable to U.S. standards, and NMFS finds the underlying data inputs 
appropriate. Second, the NGOs and petitioners' calculation does not 
conform to the U.S. ``Guidelines for Preparing Stock Assessment Reports 
Pursuant to the 1994 Amendments to the MMPA,'' which states: 
Substitution of other values of the maximum net productivity rate 
(Rmax) should be made with caution, and only when reliable 
stock-specific information is available on Rmax (e.g., 
estimates published in peer-reviewed articles or accepted by review 
groups such as the MMPA Scientific Review Groups or the Scientific 
Committee of the International Whaling Commission). The NGOs' and the 
petitioners' calculation relies on dated estimates for Rmax, 
is inconsistent with the known age at first reproduction of M[amacr]ui 
dolphins, underestimates maximum age for this species, and is contrary 
to more recent estimates of Rmax in the literature. 
Moreover, the M[amacr]ui dolphin demographic models now estimate that 
the population may have stabilized or begun to increase in recent years 
following a decline in the past 20 to 30 years. Therefore, NMFS finds 
the NGO's and petitioners' PBR estimate is not comparable to U.S. 
standards.

Monitoring

    Comment 7: The NGOs claim that the GNZ's requirement for electronic 
monitoring of set-net and trawl fisheries is an inadequate measure. 
They base this claim on supposition that too few fishing vessels have 
been outfitted with camera systems and that such systems will not be 
fully operational until 2023. The MMC claims that the GNZ, under its 
new regulatory program, does not increase observer coverage in the set-
net fishery and that camera monitoring is only on the South Island.
    Response: Both the NGOs and the MMC are incorrect. Since November 
1, 2019, on-board cameras are required on any set-net or trawl vessel 
(>=8 m and <=29 m in registered length). The area where onboard cameras 
are required covers the coastal area of the M[amacr]ui dolphin habitat 
zone, except for a small portion in the far north estimated to have a 
low density of dolphins, and extends into the northern portion of the 
southern transition zone. According to the GNZ, the requirement applies 
to 28 vessels, of which 20 have opted into the on-board camera 
requirement; the other eight vessels subject to the regulatory 
requirement are currently not operating in the defined area. Any 
authorized vessel without on-board cameras must carry an observer. 
Thus, fishing vessels currently operating in the core M[amacr]ui 
dolphin habitat zone have 100 percent coverage of electronic 
monitoring. The GNZ bycatch monitoring program is comparable in 
effectiveness to U.S. standards. Finally, according to the GNZ, the 
2023 date refers to broader implementation of on-board cameras 
including on the South Island and not the implementation of this 
program to the West Coast of the North Island.

Traceability

    Comment 8: NGOs claim New Zealand's fishery traceability system is 
not structured to trace fishery catches and/or marine mammal bycatch 
incidents back to specific fisheries management areas. They assert that 
NMFS should not use this deficiency as an excuse to not impose the 
required fishery product import bans under the MMPA. The NGOs also 
claim that New Zealand's marine mammal bycatch traceability system is 
not consistent with the standards imposed on fisheries in the United 
States.
    Response: As discussed in the response to comment 7, the GNZ's 
monitoring program, including its observer programs and on-board 
cameras, is comparable in effectiveness to U.S. standards requiring 
monitoring. The GNZ's monitoring program is sufficient to detect and 
estimate bycatch. The MMPA Import Provisions do not require, as a 
condition for a comparability finding, a seafood traceability system.

    Dated: October 26, 2020.
Paul N. Doremus,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. 2020-24416 Filed 11-6-20; 8:45 am]
BILLING CODE 3510-22-P

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