[Federal Register Volume 65, Number 172 (Tuesday, September 5, 2000)]
[Notices]
[Pages 53704-53705]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22666]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[I.D. 072100A]


Taking and Importing of Marine Mammals

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

ACTION: Notice of changes in status of intermediary nations.

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SUMMARY: The Assistant Administrator for Fisheries, NMFS, (Assistant 
Administrator) made changes in the intermediary nation status for the 
Governments of Costa Rica, Italy, and Japan under the Marine Mammal 
Protection Act (MMPA) on August 19, 2000. This allows the importation 
into the United States from these nations of yellowfin tuna and 
yellowfin tuna products harvested in the eastern tropical Pacific Ocean 
(ETP) after March 3, 1999. The change in intermediary nation status is 
based on the lack of sufficient documentary evidence that Costa Rica, 
Japan, or Italy import yellowfin tuna or tuna products from nations 
subject to a direct ban under the MMPA. This determination remains in 
effect until the Assistant Administrator has sufficient evidence that a 
nation is importing yellowfin tuna or tuna products subject to a direct 
ban under the MMPA.

DATES: Effective August 19, 2000.

ADDRESSES: Copies of this notice may be obtained by writing to Nicole 
R. Le Boeuf, Office of Protected Resources, NMFS, 1315 East-West 
Highway, Silver Spring, Maryland 90210.

FOR FURTHER INFORMATION CONTACT: Nicole R. Le Boeuf; Phone 301-713-
2322; Fax 301-713-4060.

SUPPLEMENTARY INFORMATION: NMFS imposed the current intermediary nation 
embargoes as a result of a court order dated February 3, 1992 by Judge 
Thelton Henderson of the U.S. District Court for the Northern District 
of California. NMFS was ordered to impose embargoes on certain 
intermediary nations under section 10l(a)(2)(C) of the MMPA. At that 
time, section 10l(a)(2)(C) mandated that NMFS and the U.S. Customs 
Service ``. . . require the government of any intermediary nation, from 
which yellowfin tuna or yellowfin tuna products will be exported to the 
United States to certify and provide reasonable proof...'' Based on the 
phrase ``from which yellowfin tuna or yellowfin tuna products will be 
exported'', Judge Henderson determined that Congress had intended the 
scope of the intermediary nation embargoes to cover ``all yellowfin 
tuna and tuna products.'' Earth Island Institute v. Mosbacher 785 F. 
Supp. 826, 833 (N. D. Cal. 1992)
    On November 2, 1992, after Judge Henderson's decision, Congress 
amended the MMPA and revised paragraph 101(a)(2)(C) to require that an 
intermediary nation ``...certify and provide reasonable proof to the 
Secretary that it has not imported, within the preceding 6 months, any 
yellowfin tuna or yellowfin tuna products that are subject to a direct 
ban on importation into the United States under subparagraph (B).'' 
(from Pub. L. l02-582)
    Under the current intermediary nation embargo provisions (which the 
International Dolphin Conservation Program Act (IDCPA) recodified as 
section 101(a)(2)(B)), an intermediary embargo applies only to that 
yellowfin tuna harvested by purse seine in the ETP. The regulations to 
implement the IDCPA also specify that the intermediary and primary 
nation embargoes apply only to yellowfin tuna harvested by purse seine 
vessels greater than 400 short tons carrying capacity in the ETP. 
Although NMFS had sufficient evidence to determine these nations to be 
intermediary nations under the original standard as interpreted in 
Judge Henderson's ruling, the evidence was not sufficient to indicate 
that Costa Rica, Japan, and Italy were intermediary nations under the 
amended definition.
    This action removes the intermediary nation status of Costa Rica, 
Italy, and Japan, which have been embargoed since January 31, 1992. 
This change in intermediary nation status is based on the lack of 
sufficient documentary evidence that Costa Rica, Japan, or Italy 
import, or have ever imported, yellowfin tuna or tuna products from 
nations subject to a direct ban under section 101(a)(2)(B) of the MMPA. 
This determination remains in effect for these nations until NMFS has 
sufficient evidence that they are importing yellowfin tuna or tuna 
products subject to the direct ban.
    The MMPA, 16 U.S.C. 1361 et seq., as amended by the IDCPA (Pub. L. 
105-42), prohibits the entry into the United States of yellowfin tuna 
and tuna products from ``intermediary nations.'' An intermediary nation 
is a nation that exports yellowfin tuna or yellowfin tuna products to 
the United States and that imports yellowfin tuna or yellowfin tuna 
products that are subject to a direct ban on importation into the 
United States pursuant to section 101(a)(2)(B) of the MMPA. The 
Assistant Administrator for Fisheries, NMFS, will review the status of 
intermediary nation determinations at the request of such nations or if 
the Assistant Administrator otherwise has evidence that a nation is 
importing yellowfin tuna or tuna products subject to a direct ban under 
section 101(a)(2)(B) of the MMPA. Such requests must be accompanied by 
specific and detailed supporting

[[Page 53705]]

information or documentation indicating that a review or 
reconsideration is warranted. If a nation has not imported in the 
previous 6 months yellowfin tuna or yellowfin tuna products that are 
subject to a ban on direct importation into the United States under 
section 101(a)(2)(B), the nation shall no longer be considered an 
intermediary nation, and these import restrictions shall no longer 
apply. The status of a nation as an intermediary nation will remain 
valid until the Assistant Administrator has sufficient evidence that a 
nation is not importing yellowfin tuna or tuna products subject to a 
direct ban under section 101(a)(2)(B) of the MMPA. The Assistant 
Administrator may require the submission of additional supporting 
documentation or verification of statements made in connection with 
requests to review or change the status of an intermediary nation.
    As a reminder, the interim final regulations implementing the IDCPA 
(65 FR 30, January 3, 2000) also set forth a mechanism for lifting 
primary embargoes against nations harvesting yellowfin tuna in the ETP 
purse seine fishery. Harvesting or exporting nations, if different, 
must submit documentary evidence directly to the Assistant 
Administrator and request an affirmative finding as required by 50 CFR 
216.24(f)(9). The affirmative finding process requires that the 
harvesting nation meet several conditions related to compliance with 
the International Dolphin Conservation Program (IDCP). To issue an 
annual affirmative finding, NMFS must receive the following 
information:
    1. A statement requesting an affirmative finding;
    2. Evidence of membership in the Inter-American Tropical Tuna 
Commission (IATTC);
    3. Evidence that a nation is meeting its obligations to the IATTC, 
including financial obligations;
    4. Evidence that a nation is complying with the IDCP. For example, 
national laws and regulations implementing the Agreement on the IDCP 
and information that the nation is enforcing those laws and 
regulations;
    5. Evidence of a tuna tracking and verification program comparable 
to the U.S. tracking and verification regulations at 50 CFR 216.94;
    6. Evidence that the national fleet dolphin mortality limits (DMLs) 
were not exceeded in the previous calendar year;
    7. Evidence that the national fleet per-stock per-year mortality 
limits, if they are allocated to countries, were not exceeded in the 
previous calendar year;
    8. Authorization for the IATTC to release to the Assistant 
Administrator for Fisheries complete, accurate, and timely information 
necessary to verify and inspect Tuna Tracking Forms; and
    9. Authorization for the IATTC to release to the Assistant 
Administrator for Fisheries information whether a nation is meeting its 
obligations of membership to the IATTC and whether a nation is meeting 
its obligations under the IDCP, including managing (not exceeding) its 
national fleet DMLs or its national fleet per-stock per-year mortality 
limits. A nation may opt to provide this information directly to NMFS 
on an annual basis or to authorize the IATTC to release the information 
to NMFS in years when NMFS will review and consider whether to issue an 
affirmative finding determination without an application from the 
harvesting nation.

    Date: August 25, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 00-22666 Filed 9-1-00; 8:45 am]
BILLING CODE: 3510-22-S