Notice2024-01368
Implementation of Fish and Fish Product Import Provisions of the Marine Mammal Protection Act-Notification of Issuance of Comparability Findings
Primary source
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Published
January 24, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
Under the authority of the Marine Mammal Protection Act (MMPA), the NMFS Assistant Administrator for Fisheries (Assistant Administrator) has issued comparability findings for the Government of New Zealand's (GNZ) regulated 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.
Full Text
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<title>Federal Register, Volume 89 Issue 16 (Wednesday, January 24, 2024)</title>
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[Federal Register Volume 89, Number 16 (Wednesday, January 24, 2024)]
[Notices]
[Pages 4595-4597]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01368]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD671]
Implementation of Fish and Fish Product Import Provisions of the
Marine Mammal Protection Act--Notification of Issuance of Comparability
Findings
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice.
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SUMMARY: Under the authority of the Marine Mammal Protection Act
(MMPA), the NMFS Assistant Administrator for Fisheries (Assistant
Administrator) has issued comparability findings for the Government of
New Zealand's (GNZ) regulated 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.
DATES: These comparability findings are valid from February 21,2024,
through December 31, 2025, unless revoked or revised by the Assistant
Administrator in a subsequent action.
FOR FURTHER INFORMATION CONTACT: Kellie Foster-Taylor, NMFS Office of
International Affairs, Trade, and Commerce at <a href="/cdn-cgi/l/email-protection#b9d4d4c9d897d5d6dfdff9d7d6d8d897ded6cf"><span class="__cf_email__" data-cfemail="48252538296624272e2e0826272929662f273e">[email protected]</span></a> or by
phone at 301-427-7721.
SUPPLEMENTARY INFORMATION:
The MMPA Import Provisions
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 U.S. 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 (MMPA Import Provisions). 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)).
The final rule established a 5-year exemption period, through
December 31, 2021, before imports would be subject to any trade
restrictions (see 50 CFR 216.24(h)(2)(ii)). The Department of Commerce
and NMFS have revised the regulations implementing the Fish and Fish
Product Import Provisions of the MMPA Import Provisions to extend the
exemption period, most recently on November 17, 2023. Following careful
consideration, the Department of Commerce and NMFS concluded that
additional time is required to effectively complete the comparability
finding evaluation process and issued a Federal Register notice (88 FR
80193; November 17, 2023) extending the exemption period to end on
December 31, 2025 for foreign nations to receive a comparability
finding for their commercial fishing operations to export fish and fish
products to the United States.
In the 2016 final rule, NMFS stated that it may consider emergency
actions during the exemption period to ban imports of fish and fish
products from a foreign fishery having or likely to have an immediate
and significant adverse impact on a marine mammal stock. (81 FR 54390;
August 15, 2016). 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
exemption period. The GNZ submitted its comparability finding
application by the November 30, 2021 regulatory deadline, including
information pertaining to the West Coast North Island multi-species
set-net fishery and the West Coast North Island multi-species trawl
fishery. In December 2022, after the Court of International Trade (CIT)
enjoined the two fisheries, the GNZ submitted supplemental documentary
evidence regarding its monitoring and reporting programs and estimates
of M[amacr]ui dolphin (Cephalorhynchus hectori maui) mortality and
serious injury pertaining to the two enjoined fisheries for NMFS'
consideration for comparability findings. NMFS is undertaking this
action in response to the GNZ's request and prior comparability
findings, its 2021 application for comparability findings and its
submission of additional documentary evidence regarding its regulatory
program to reduce mortality and serious injury of M[amacr]ui dolphin in
the West Coast North Island multi-species set-net fishery and the West
Coast North Island multi-species trawl fishery.
Petition for Rulemaking and Request for a Comparability Finding
On May 21, 2020, Sea Shepherd New Zealand and Sea Shepherd
Conservation Society (collectively, ``Plaintiffs'') initiated a lawsuit
in the CIT challenging NMFS' denial of its petition. 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 15, 2020, the GNZ requested that NMFS perform a
comparability assessment of the TMP and its regulatory program as it
relates to M[amacr]ui dolphins.On November 9, 2020, NMFS issued
comparability findings for the West Coast North Island multi-species
set-net and trawl fisheries because the GNZ had implemented a
regulatory program governing the bycatch of M[amacr]ui dolphin that is
comparable in effectiveness to U.S. standards. Based on NMFS' decision,
Plaintiffs subsequently filed a Motion for
[[Page 4596]]
Preliminary Injunction on December 11, 2020.
The CIT granted this preliminary injunction, requiring the
imposition of import restrictions and a comparability finding
determination for the export fisheries operating on the West Coast
North Island within the M[amacr]ui dolphin's range. The judge's order
effectively removed the operative exemption period protections for
these fisheries.
In November 2021, the GNZ submitted its comparability finding
application to NMFS for all its fisheries on the List of Foreign
Fisheries (LOFF), including the West Coast North Island multi-species
set-net fishery and the West Coast North Island multi-species trawl
fishery. In December 2022, after the CIT enjoined the two fisheries,
the GNZ submitted supplemental documentary evidence regarding its
monitoring and reporting programs and estimates of M[amacr]ui dolphin
mortality and serious injury, along with supplemental regulatory
information, pertaining to the two enjoined fisheries for NMFS'
consideration for comparability findings.
Under the MMPA Import Provisions, the Assistant Administrator is
reconsidering comparability findings that were previously issued on
November 9, 2020, based on supplemental information provided by the
Plaintiffs and New Zealand since that time. As part of this review of
comparability findings under the reconsideration provisions, NMFS has
consulted with the GNZ to ascertain and discuss additional measures
intended for implementation to eliminate the risk of M[amacr]ui dolphin
bycatch in the future. The following is a summary of NMFS' analysis and
provides the evidence supporting compliance with each of the conditions
needed for a comparability finding. Procedures and conditions for a
comparability finding are specified in the MMPA Import Provisions at 50
CFR 216.24(h)(6).
NMFS Determination on the GNZ's Comparability Finding Request
The Government of New Zealand's Regulatory Actions and Mitigation Plan
The GNZ manages human-induced threats to M[amacr]ui dolphins under
a Hector's and M[amacr]ui dolphin TMP. The TMP is underpinned by a
spatial risk assessment informed by the best available scientific
information. On October 1, 2020, the GNZ adopted regulations to manage
fisheries threats effectively that include:
<bullet> A nationwide ban on recreational and commercial drift
netting;
<bullet> An extension of current set-net closures and the creation
of new areas closed to set-netting in the North and South Islands;
<bullet> An extension of the existing area closed to trawling off
the West Coast of the North Island;
<bullet> A management trigger that becomes effective if a single
fishing-related mortality of a dolphin occurs within the M[amacr]ui
Dolphin Habitat Zone (MDHZ) (from Cape Reinga to Wellington). This
trigger allows the Minister of Fisheries to immediately impose
additional fishing restrictions, including prohibiting all or any
fishing or fishing methods within the West Coast of the North Island;
and
<bullet> An authorization to use commercial ring nets in set-net
prohibition areas within West Coast North Island harbors (ring nets are
a fishing method that does not pose a risk to the dolphins).
Evidence That New Zealand Bans Intentional Mortality and Serious Injury
of M[amacr]ui Dolphins
Based on information provided by the GNZ, its Marine Mammal
Protection Act of 1978 and the Fisheries Act of 1996 the primary
legislation governing the GNZ's fisheries management system, prohibit
the intentional killing of marine mammals in the course of commercial
fishing operations and are comparable to U.S. standards.
Evidence of a Vessel Registration System for Export Fisheries
The GNZ's Fisheries Act of 1996 requires that vessels must be
registered as a New Zealand ship (flagged to New Zealand) and be on the
Fishing Vessel Register to commercially fish in New Zealand's waters.
Based on NMFS Office of International Affairs, Trade, and Commerce's
(IATC) analysis of the GNZs Fisheries Act of 1996, the GNZ's
regulations and vessel registration system are comparable to U.S.
standards.
Evidence of a Monitoring Plan
The GNZ's Marine Mammal Protection Act of 1978 and the Fisheries
Act of 1996 require fishermen to report the mortality and injury of
marine mammals in the course of commercial fishing. The GNZ has two
types of monitoring programs: an at-sea monitoring program (observers
and electronic monitoring) and vessel logbooks (self-reporting).
The MDHZ was created along the West Coast of the North Island
(including harbors) from the coast out to 12 nautical miles. The MDHZ
covers approximately 90-95 percent of M[amacr]ui dolphin habitat.
Fishing effort within the MDHZ has been declining while monitoring
effort has been increasing since the MDHZ fishing prohibitions went
into effect. The levels of effort reduction and monitoring have been
different for the set net and trawl fleets. Since the 2020-2021 fishing
year, fishing effort has been reduced by 71 percent for the trawl fleet
and 97 percent for the set net fleet while 50 percent of trawl effort
and 90 percent of set net effort were monitored. In 2022, the GNZ
issued an amendment to its Fisheries (Electronic Monitoring) regulation
that expanded the electronic monitoring program to include the entire
MDHZ. This regulation states that if a vessel is qualified to carry a
camera, then a vessel is unable to fish without an on-board camera.
Based on IATC's analysis of GNZ's regulations and the implementation of
the MDHZ and its accompanying rules, the GNZ's self-reporting and
observer programs are comparable in effectiveness to U.S. standards.
IATC also finds the GNZ's on-board camera monitoring program exceeds
U.S. standards. New Zealand's 90 percent monitoring coverage through
its monitoring program exceeds the U.S. requirements of section 118 of
the MMPA for statistically reliable bycatch estimates. New Zealand's
electronic monitoring and observer program allows New Zealand to act in
near real-time in the unlikely event that a M[amacr]ui dolphin were
bycaught in a fishery allowing Minister to start an immediate review of
New Zealand's program to determine additional actions to be taken to
reduce M[amacr]ui dolphin bycatch below the bycatch limit. Both nations
also take observer health and safety along with vessel operational
safety into consideration when determining deployments of observers on
vessels 8 meters or less.
Evidence of a Population Abundance Estimate for M[amacr]ui Dolphins
The GNZ has an abundance estimate for M[amacr]ui dolphins, which
follows a scientifically sound process to estimate abundance and has
plans to undertake a stock assessment survey to update that abundance
estimate. Based on NMFS' analysis the GNZ meets the condition to have
an abundance estimate for a marine mammal stock, and their system for
M[amacr]ui dolphin abundance estimation is comparable in effectiveness
to U.S. standards.
Evidence of a Bycatch Limit
The GNZ has established a bycatch limit of one M[amacr]ui/Hector's
dolphin. When a bycatch limit has been set, the GNZs Fisheries Act
enables the Minister to prohibit all or any fishing or fishing
[[Page 4597]]
methods in an area to ensure that any limit on fishing-related
mortality is not exceeded. The purpose of the Fisheries Act is to
provide for the utilization of fisheries resources while ensuring
sustainability. This means that the Minister does not have discretion
to choose whether to act or not, but rather the Minister has authority
to quickly enact additional prohibitions considered necessary to ensure
the bycatch limit is not exceeded.
The GNZ created a M[amacr]ui dolphin Threat Management Plan (TMP).
The TMP provides clear objectives to ensure that government agencies
are operating collectively. Some of the TMP objectives are: ensure that
dolphin deaths arising from fisheries threats do not exceed the
population sustainability threshold (PST) with 95 percent certainty,
causes localized depletion, create substantial barriers to dispersal
between subpopulations, and allow localized subpopulations to recover
and/or remain at or above 80 percent of their unimpacted status with 95
percent certainty. The TMP is underpinned by the GNZs multi-species
Spatially Explicit Fisheries Risk Assessment (SEFRA) model. The SEFRA
model allows for improved statistical estimation of commercial
fisheries risks to protected species. Specifically, the SEFRA model
addresses the needs of fisheries managers in low information fisheries
where observer coverage is low and protected species capture rates are
rare to inform statistically robust capture estimates.
Evidence of a Regulatory Plan To Reduce Bycatch Below the Bycatch Limit
Based on IATC's analysis, the GNZ's regulatory program, including
the fishery-specific area restrictions are comparable in effectiveness
to U.S. standards. This regulatory program will result in M[amacr]ui
dolphin bycatch below PBR and concentrate the fisheries restrictions in
the areas with the greatest risk, specifically those areas where
fishing activities overlap with the M[amacr]ui dolphin population.
These restrictions, which are focused on the area that represents the
greatest density of M[amacr]ui dolphins, virtually eliminates the
bycatch risk from set-nets and significantly reduces the trawl bycatch
risk for M[amacr]ui dolphins in this area. The additional restrictions
at the northern and southern extent (tails of the population) of the
M[amacr]ui dolphin distribution reduces the bycatch risk for the
extreme ranges (smaller proportion). This is comparable to U.S.
standards, which does not require that a Take Reduction Plan or the
U.S. regulatory program eliminate 100 percent of the bycatch risk to a
particular marine mammal stock. The U.S. regulatory program seeks to
target the greatest percentage of risk in the areas with the greatest
overlap of fishing and the marine mammal distribution and mitigate that
bycatch risk below the bycatch limit for that specific marine mammal.
As a result of these findings, NMFS announces the issuance of
positive comparability findings that will allow the importation into
the United States of fish and fish products harvested by New Zealand's
set-net and trawl fisheries operating off the West Coast North Island
within the M[amacr]ui dolphin's range.
Authority: 16 U.S.C. 1361 et seq.
Dated: January 19, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2024-01368 Filed 1-22-24; 11:15 am]
BILLING CODE 3510-22-P
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