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.

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 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.