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.''

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