[Federal Register Volume 89, Number 16 (Wednesday, January 24, 2024)]
[Notices]
[Pages 4595-4597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 [email protected] 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:
     A nationwide ban on recreational and commercial drift 
netting;
     An extension of current set-net closures and the creation 
of new areas closed to set-netting in the North and South Islands;
     An extension of the existing area closed to trawling off 
the West Coast of the North Island;
     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
     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]
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