[Federal Register Volume 69, Number 168 (Tuesday, August 31, 2004)]
[Notices]
[Pages 53044-53045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19869]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 082404B]
Taking of Marine Mammals Incidental to Commercial Fishing
Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific
Ocean (ETP)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notification of change of final finding of dolphin-safe tuna.
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SUMMARY: This Notice announces that on August 9, 2004, the United
States District Court for the Northern District of California issued an
order which set aside the final finding made on December 31, 2002, by
the Assistant Administrator for Fisheries, NMFS, (Assistant
Administrator). Under the terms of this Order, the labeling standard
for ``dolphin-safe'' tuna shall be governed by the provisions of the
Dolphin Protection Consumer Information Act. Under that provision, tuna
are deemed dolphin safe if ``no tuna were caught on the trip in which
such tuna were harvested using a purse seine net intentionally deployed
on or to encircle dolphins, and no dolphins were killed or seriously
injured during the sets in which the tuna were caught.''
DATES: Effective on August 9, 2004.
FOR FURTHER INFORMATION CONTACT: Jeremy Rusin, Office of Protected
Resources, Southwest Region, NMFS, 501 West Ocean Boulevard, Suite
4200, Long Beach, California, 90802-4213; Phone 562-980-3248; Fax 562-
980-4027.
SUPPLEMENTARY INFORMATION: The Dolphin Protection Consumer Information
Act (DPCIA) (16 U.S.C. 1385), as amended by the International Dolphin
Conservation Program Act, requires the Secretary of Commerce
(Secretary) to make a finding based on the results of scientific
research, information obtained under the International Dolphin
Conservation Program, and any other relevant information, as to whether
the intentional deployment on or encirclement of dolphins with purse
seine nets is having a ``significant adverse impact'' on any depleted
dolphin stock in the eastern tropical Pacific Ocean (ETP). On December
31, 2002, the Assistant Administrator, on behalf of the Secretary of
Commerce, issued a final finding under section (g)(2) of the DPCIA, and
published notification in the Federal Register on January 15, 2003 (68
FR 2010).
In the final finding, the Assistant Administrator determined that
the chase and intentional deployment on or encirclement of dolphins
with purse seine nets is not having a significant adverse impact on
depleted dolphin stocks in the ETP. The final finding changed the
definition of ``dolphin-safe'' for tuna products containing tuna
harvested in the ETP by purse seine vessels with carrying capacity
greater than 400 short tons and sold in the United States. Based upon
the final finding, the definition of dolphin-safe for such tuna is
governed by the provisions of section (h)(1) of the DPCIA. Under this
definition, ``dolphin-safe'' means that dolphins can be encircled or
chased during the trip in which tuna was harvested, but that no
dolphins can be killed or seriously injured in the set in which the
tuna was harvested.
On December 31, 2002, Earth Island Institute, eight organizations,
and one individual person (Plaintiffs), filed a complaint in the United
States District Court for the Northern District of
[[Page 53045]]
California. This complaint challenged the Assistant Administrator's
final finding and sought to enjoin any change in the dolphin-safe
labeling standard for tuna harvested with purse seine nets.
On January 21, 2003, the Court, at the request of all parties,
issued an order that stayed the implementation of the final finding.
Under the terms of the order, the labeling standard for ``dolphin-
safe'' tuna was governed by the provisions of (h)(2) of the DPCIA.
Under that provision, tuna are deemed dolphin safe if ``no tuna were
caught on the trip in which such tuna were harvested using a purse
seine net intentionally deployed on or to encircle dolphins, and no
dolphins were killed or seriously injured during the sets in which the
tuna were caught.'' The terms of the order further provided that this
labeling standard would remain in effect for 90 days from the date of
the order or until the Court issued a ruling on a motion for a
preliminary injunction, whichever was earlier.
On April 10, 2003, the Court granted the Plaintiff's motion for
preliminary injunction. Under the Court's order, NMFS was prohibited
from taking any action under the DPCIA to allow any tuna product to be
labeled as ``dolphin-safe'' that was harvested using purse seine nets
intentionally set on dolphins in the ETP. As a result of the terms of
the Court's order, the definition of dolphin-safe continued to mean
that Ano tuna were caught on the trip in which such tuna were harvested
using a purse seine net intentionally deployed on or to encircle
dolphins, and no dolphins were killed or seriously injured during the
sets in which the tuna were caught'' until further order of the Court.
On May 24, 2004, all parties simultaneously motioned the Court for
summary judgment. On August 9, 2004, the Court ruled on the motions for
summary judgment and found that the final finding made by the Assistant
Administrator on December 31, 2002, was ``arbitrary, capricious, an
abuse of discretion and contrary to law pursuant to the Administrative
Procedure Act, 5 U.S.C. 706(c).'' Under the terms of this order, the
labeling standard for ``dolphin-safe'' tuna shall be governed by the
provisions of (h)(2) of the DPCIA. Under that provision, tuna are
deemed dolphin safe if ``no tuna were caught on the trip in which such
tuna were harvested using a purse seine net intentionally deployed on
or to encircle dolphins, and no dolphins were killed or seriously
injured during the sets in which the tuna were caught.''
Dated: August 25, 2004.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 04-19869 Filed 8-30-04; 8:45 am]
BILLING CODE 3510-22-S