[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