[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.
Literature Cited
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from inshore fisheries, 1997-98 fishing year. Published Client
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documents/science-and-technical/CSL3024.pdf.
Cooke, J.G., D. Steel, R. Hamner, R. Constantine, and C.S. Scott.
2018. Population estimates and projections of M[amacr]ui dolphin
(Cephalorhyncus hectori M[amacr]ui) based on genotype capture-
recapture, with implications for management of mortality risk.
Unpublished document submitted to the International Whaling
Commission Scientific Committee. Document SC/67b/ASI/05. 15pp.
Currey RJC, Boren LJ, Sharp BR, Peterson D (2012) A risk assessment
of threats to M[amacr]ui's dolphins. Ministry for Primary Industries
and Department of Conservation, www.doc.govt.nz/getting-involved/
consultations/current/threat-management-plan-review-for-M[amacr]uis-
dolphin/.
Currey, R. and D. Lundquist. 2016. M[amacr]ui dolphin: 2016 update
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https://www.doc.govt.nz/nature/native-animals/marine-mammals/
dolphins/M[amacr]uidolphin/resources/.
Dawson SM, Slooten E (1988) Hector's Dolphin Cephalorhynchus
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IWC (International Whaling Commission). 2018. Report of the
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IWC (International Whaling Commission). In press. Report of the
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IWC (2018) Report of the Scientific Committee Annex M Report of the
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[[Page 32858]]
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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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