Subchapter C—Marine Mammals

SUBCHAPTER C—MARINE MAMMALS

PART 216—REGULATIONS GOV- 216.34 Issuance criteria. 216.35 Permit restrictions. ERNING THE TAKING AND IM- 216.36 Permit conditions. PORTING OF MARINE MAM- 216.37 Marine mammal parts. MALS 216.38 Reporting. 216.39 Permit amendments. Subpart A—Introduction 216.40 Penalties and permit sanctions. 216.41 Permits for scientific research and Sec. enhancement. 216.1 Purpose of regulations. 216.42 Photography. [Reserved] 216.2 Scope of regulations. 216.43 Public display. [Reserved] 216.3 Definitions. 216.44 Applicability/transition. 216.4 Other laws and regulations. 216.45 General Authorization for Level B 216.5 Payment of penalty. harassment for scientific research. 216.6 Forfeiture and return of seized prop- 216.46 U.S. citizens on foreign flag vessels erty. operating under the International Dol- 216.7 Holding and bonding. phin Conservation Program. 216.8 Enforcement officers. 216.47 Access to marine mammal tissue, analyses, and data. Subpart B—Prohibitions 216.48–216.49 [Reserved] 216.11 Prohibited taking. Subpart E—Designated Ports 216.12 Prohibited importation. 216.13 Prohibited uses, possession, transpor- 216.50 Importation at designated ports. tation, sales, and permits. 216.14 Marine mammals taken before the Subpart F—Pribilof Islands, Taking for MMPA. Subsistence Purposes 216.15 Depleted species. 216.16 Prohibitions under the General Au- 216.71 Allowable take of fur seals. thorization for Level B harassment for 216.72 Restrictions on subsistence use of fur scientific research. seals. 216.17 General prohibitions. 216.73 Disposition of fur seal parts. 216.18 Approaching humpback whales in 216.74 Cooperation between fur seal subsist- Alaska. ence users, tribal and Federal officials. 216.19 Special restrictions for humpback whales in waters surrounding the islands Subpart G—Pribilof Islands Administration of Hawaii. 216.81 Visits to fur seal rookeries. Subpart C—General Exceptions 216.82 Dogs prohibited. 216.83 Importation of birds or mammals. 216.21 Actions permitted by international 216.84 [Reserved] treaty, convention, or agreement. 216.85 Walrus and Otter Islands. 216.22 Taking by State or local government 216.86 Local regulations. officials. 216.87 Wildlife research. 216.23 Native exceptions. 216.24 Taking and related acts in commer- Subpart H—Dolphin Safe Tuna Labeling cial fishing operations including tuna purse seine vessels in the eastern trop- 216.90 Purposes. ical Pacific Ocean. 216.91 Dolphin-safe labeling standards. 216.25 Exempted marine mammals and ma- 216.92 Dolphin-safe requirements for tuna rine mammal products. harvested in the ETP by large purse 216.26 Collection of certain marine mammal seine vessels. parts without prior authorization. 216.93 Tracking and verification program. 216.27 Release, non-releasability, and dis- 216.94 False statements or endorsements. position under special exception permits 216.95 Official mark for ‘‘Dolphin-safe’’ tuna for rehabilitated marine mammals. products.

Subpart D—Special Exceptions Subpart I—General Regulations Governing Small Takes of Marine Mammals Inci- 216.30 [Reserved] dental to Specified Activities 216.31 Definitions. 216.32 Scope. 216.101 Purpose. 216.33 Permit application submission, re- 216.102 Scope. view, and decision procedures. 216.103 Definitions.

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216.104 Submission of requests. of fishing involving chumming, fishing 216.105 Specific regulations. is considered to be in progress from the 216.106 Letter of Authorization. instant fish have been sighted taking 216.107 Incidental harassment authorization for Arctic waters. bait (boiling) during that chumming 216.108 Requirements for monitoring and re- process. porting under incidental harassment au- Administrator, Southwest Region thorizations for Arctic waters. means the Regional Administrator, Southwest Region, National Marine Subparts J–X[Reserved] Fisheries Service, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802–4213, FIGURE 1 TO PART 216—NORTHERN FUR SEAL or his or her designee. BREEDING AREAS (ROOKERIES) AND HAUL- ING GROUNDS ON ST. GEORGE ISLAND, Agreement on the International Dolphin ALASKA Conservation Program (Agreement on the IDCP) means the Agreement estab- AUTHORITY: 16 U.S.C. 1361 et seq., unless otherwise noted. lishing the formal binding IDCP that was signed in Washington, DC on May SOURCE: 39 FR 1852, Jan. 15, 1974, unless 21, 1998. otherwise noted. Alaskan Native means a person de- NOTE TO PART 216: See also 50 CFR parts 228 and 229 for regulations governing certain in- fined in the Alaska Native Claims Set- cidental takings of marine mammals. tlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the United States Subpart A—Introduction who is of one-fourth degree or more Alaska Indian (including Tsimishian § 216.1 Purpose of regulations. Indians enrolled or not enrolled in the Metlaktla Indian Community), Es- The regulations in this part imple- kimo, or Aleut blood or combination ment the Marine Mammal Protection thereof. The term includes any Native, Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361– as so defined, either or both of whose 1407, Pub. L. 92–522, which, among other adoptive parents are not Natives. It things, restricts the taking, possession, also includes, in the absence of proof of transportation, selling, offering for a minimum blood quantum, any citizen sale, and importing of marine mam- of the United States who is regarded as mals. an Alaska Native by the Native village § 216.2 Scope of regulations. or group, of which he claims to be a member and whose father or mother is This part 216 applies solely to marine (or, if deceased, was) regarded as Na- mammals and marine mammal prod- tive by any Native village or Native ucts as defined in § 216.3. For regula- group. Any such citizen enrolled by the tions under the MMPA, with respect to Secretary of the Interior pursuant to other marine mammals and marine section 5 of the Alaska Native Claims mammal products, see 50 CFR part 18. Settlement Act shall be conclusively [39 FR 1852, Jan. 15, 1974, as amended at 59 presumed to be an Alaskan Native for FR 50375, Oct. 3, 1994] purposes of this part. Albacore tuna means the species § 216.3 Definitions. Thunnus alalunga. In addition to definitions contained Article of handicraft means items in the MMPA, and unless the context made by an Indian, Aleut or Eskimo otherwise requires, in this part 216: from the nonedible byproducts of fur Acts means, collectively, the Marine seals taken for personal or family con- Mammal Protection Act of 1972, as sumption which— amended, 16 U.S.C. 1361 et seq., the En- (1) Were commonly produced by Alas- dangered Species Act of 1973, as amend- kan Natives on or before October 14, ed, 16 U.S.C. 1531 et seq., and the Fur 1983; Seal Act of 1966, as amended, 16 U.S.C. (2) Are composed wholly or in some 1151 et seq. significant respect of natural mate- Active sportfishing means paying pas- rials, and; sengers have their terminal fishing (3) Are significantly altered from gear (lures, hooks, etc.) in the water in their natural form and which are pro- an attempt to catch fish or, in the case duced, decorated, or fashioned in the

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exercise of traditional native handi- (i) Likely would be accepted for pub- crafts without the use of pantographs, lication in a refereed scientific journal; multiple carvers, or similar mass copy- (ii) Are likely to contribute to the ing devices. Improved methods of pro- basic knowledge of marine mammal bi- duction utilizing modern implements ology or ecology. (Note: This includes, such as sewing machines or modern for example, marine mammal parts in tanning techniques at a tannery reg- a properly curated, professionally ac- istered pursuant to § 216.23(c) may be credited scientific collection); or used so long as no large scale mass pro- (iii) Are likely to identify, evaluate, duction industry results. Traditional or resolve conservation problems. native handicrafts include, but are not (2) Research that is not on marine limited to, weaving, carving, stitching, mammals, but that may incidentally sewing, lacing, beading, drawing, and take marine mammals, is not included painting. The formation of traditional in this definition (see sections native groups, such as a cooperative, is 101(a)(3)(A), 101(a)(5)(A), and permitted so long as no large scale 101(a)(5)(D) of the MMPA, and sections mass production results. 7(b)(4) and 10(a)(1)(B) of the ESA). Assistant Administrator means the As- Bycatch limit means the calculation sistant Administrator for Fisheries, of a potential biological removal level National Marine Fisheries Service, Na- for a particular marine mammal stock, tional Oceanic and Atmospheric Ad- as defined in § 229.2 of this chapter, or ministration, Silver Spring, MD 20910, comparable scientific metric estab- or his/her designee. lished by the harvesting nation or ap- Authentic native articles of handicrafts plicable regional fishery management and clothing means items made by an organization or intergovernmental Indian, Aleut or Eskimo which (a) were agreement. commonly produced on or before De- Carrying capacity means the Regional cember 21, 1972, and (b) are composed Director’s determination of the max- wholly or in some significant respect of imum amount of fish that a vessel can natural materials, and (c) are signifi- carry in short tons based on the great- cantly altered from their natural form er of the amount indicated by the and which are produced, decorated, or builder of the vessel, a marine sur- fashioned in the exercise of traditional veyor’s report, or the highest amount native handicrafts without the use of reported landed from any one trip. pantographs, multiple carvers, or simi- Certified charter vessel means a fishing lar mass copying devices. Improved vessel of a non-U.S. flag nation, which methods of production utilizing mod- is operating under the jurisdiction of ern implements such as sewing ma- the marine mammal laws and regula- chines or modern tanning techniques tions of another, harvesting, nation by at a tannery registered pursuant to a formal declaration entered into by § 216.23(c) may be used so long as no mutual agreement of the nations. large scale mass production industry Co-investigator means the on-site rep- results. Traditional native handicrafts resentative of a principal investigator. include, but are not limited to, weav- Commercial fishing operation means ing, carving, stitching, sewing, lacing, the lawful harvesting of fish from the beading, drawing, and painting. The marine environment for profit as part formation of traditional native groups, of an ongoing business enterprise. Such such as a cooperative, is permitted so terms may include licensed commer- long as no large scale mass production cial passenger fishing vessel (as de- results. fined) activities, but no other Bigeye tuna means the species sportfishing activities, whether or not Thunnus obesus. the fish so caught are subsequently Bluefin tuna means the species sold. Thunnus thynnus or Thunnus orientalis. Commercial passenger fishing vessel Bona fide scientific research: (1) Means means any vessel licensed for commer- scientific research on marine mammals cial passenger fishing purposes within conducted by qualified personnel, the the State out of which it is operating results of which: and from which, while under charter or

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hire, persons are legally permitted to ucts to the United States causes the conduct sportfishing activities. annual removal of: Comparability finding means a finding (1) Ten percent or less of any marine by the Assistant Administrator that mammal stock’s bycatch limit; or the harvesting nation for an export or (2) More than 10 percent of any ma- exempt fishery has met the applicable rine mammal stock’s bycatch limit, conditions specified in § 216.24(h)(6)(iii) yet that fishery by itself removes 1 per- subject to the additional consider- cent or less of that stock’s bycatch ations for comparability determina- limit annually; or tions set out in § 216.24(h)(7). (3) Where reliable information has Custody means holding a live marine not been provided by the harvesting mammal pursuant to the conditional nation on the frequency of incidental authority granted under the MMPA, mortality and serious injury of marine and the responsibility therein for cap- mammals caused by the commercial tive maintenance of the marine mam- fishing operation, the Assistant Ad- mal. ministrator may determine whether Declaration of Panama means the dec- the likelihood of incidental mortality laration signed in Panama City, Repub- and serious injury is ‘‘remote’’ by eval- lic of Panama, on October 4, 1995. uating information concerning factors such as fishing techniques, gear used, Director, Office of Protected Resources methods used to deter marine mam- means Director, Office of Protected Re- mals, target species, seasons and areas sources, National Marine Fisheries fished, qualitative data from logbooks Service, 1315 East-West Highway, Sil- or fisher reports, stranding data, the ver Spring, MD 20910. species and distribution of marine Dolphin Mortality Limit (DML) means mammals in the area, or other factors the maximum allowable number of in- at the discretion of the Assistant Ad- cidental dolphin mortalities per cal- ministrator. A foreign fishery will not endar year assigned to a vessel, unless be classified as an exempt fishery un- a shorter time period is specified. less the Assistant Administrator has Endangered Species means a species or reliable information from the har- subspecies of marine mammal listed as vesting nation, or other information to ‘‘endangered’’ pursuant to the Endan- support such a finding. gered Species Act of 1973, 87 Stat. 884, Exemption period means the one-time, Pub. L. 93–205 (see part 17 of this title). five-year period that commences Janu- ESA means the Endangered Species ary 1, 2017, during which commercial Act of 1973, as amended, 16 U.S.C. 1531 fishing operations that are the source et seq. of exports of commercial fish and fish ETP means the eastern tropical Pa- products to the United States will be cific Ocean which includes the Pacific exempt from the prohibitions of Ocean area bounded by 40° N. latitude, § 216.24(h)(1). 40° S. latitude, 160° W. longitude and Export fishery means a foreign com- the coastlines of North, Central and mercial fishing operation determined South America. by the Assistant Administrator to be Exempt fishery means a foreign com- the source of exports of commercial mercial fishing operation determined fish and fish products to the United by the Assistant Administrator to be States and to have more than a remote the source of exports of commercial likelihood of incidental mortality and fish and fish products to the United serious injury of marine mammals (as States and to have a remote likelihood defined in the definition of an ‘‘exempt of, or no known, incidental mortality fishery’’) in the course of its commer- and serious injury of marine mammals cial fishing operations. Where reliable in the course of commercial fishing op- information has not been provided by erations. A commercial fishing oper- the harvesting nation on the frequency ation that has a remote likelihood of of incidental mortality and serious in- causing incidental mortality and seri- jury of marine mammals caused by the ous injury of marine mammals is one commercial fishing operation, the As- that collectively with other foreign sistant Administrator may determine fisheries exporting fish and fish prod- whether the likelihood of incidental

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mortality and serious injury is more feeding is conducted or supported. It than ‘‘remote’’ by evaluating informa- does not include the routine discard of tion concerning factors such as fishing bycatch during fishing operations or techniques, gear used, methods used to the routine discharge of waste or fish deter marine mammals, target species, byproducts from fish processing plants seasons and areas fished, qualitative or other platforms if the discharge is data from logbooks or fisher reports, otherwise legal and is incidental to op- stranding data, and the species and dis- eration of the activity. tribution of marine mammals in the First exporter means the person or area, or other factors at the discretion company that first exports the fish or of the Assistant Administrator that fish product, or, in the case of ship- may inform whether the likelihood of ments that are subject to the labeling incidental mortality and serious injury requirements of 50 CFR part 247 and of marine mammals caused by the that only contain fish harvested by commercial fishing operation is more vessels of the United States, the first than ‘‘remote.’’ Commercial fishing op- seller of the fish or fish product. erations not specifically identified in Fish and fish product means any ma- the current List of Foreign Fisheries as rine finfish, mollusk, crustacean, or either exempt or export fisheries are other form of marine life other than deemed to be export fisheries until the marine mammals, reptiles, and birds, next List of Foreign Fisheries is pub- whether fresh, frozen, canned, pouched, lished unless the Assistant Adminis- or otherwise prepared. trator has reliable information from Fisheries Certificate of Origin, or FCO, the harvesting nation to properly clas- means NOAA Form 370, as described in sify the foreign commercial fishing op- § 216.24(f)(4). eration. Additionally, the Assistant Force majeure means forces outside Administrator, may request additional the vessel operator’s or vessel owner’s information from the harvesting na- control that could not be avoided by tion and may consider other relevant the exercise of due care. information as set forth in § 216.24(h)(3) about such commercial fishing oper- FSA means the Fur Seal Act of 1966, ations and the frequency of incidental as amended, 16 U.S.C. 1151 et seq. mortality and serious injury of marine Fur seal means North Pacific fur seal, mammals, to properly classify the for- scientifically known as Callorhinus eign commercial fishing operation. ursinus. Facility means, in the context specific Hard part means any bone, tooth, ba- to captive marine mammals,: (1) One or leen, treated pelt, or other part of a more permanent primary enclosures marine mammal that is relatively solid used to hold marine mammals captive or durable. (i.e., pools, lagoons) and associated in- Harvesting nation means the country frastructure (i.e., equipment and sup- under whose flag one or more fishing plies necessary for the care and main- vessels are documented, or which has tenance of marine mammals) where by formal declaration agreed to assert these enclosures are either located jurisdiction over one or more certified within the boundaries of a single con- charter vessels, from which vessel(s) tiguous parcel of land and water, or are fish are caught that are a part of any grouped together within the same gen- cargo or shipment of fish to be im- eral area within which enclosure-to-en- ported into the United States, regard- closure transport is expected to be less of any intervening transshipments. completed in less than one hour; or Humane means the method of taking, (2) A traveling display/exhibit, where import, export, or other activity which the enclosure(s) and associated infra- involves the least possible degree of structure is transported together with pain and suffering practicable to the the marine mammals. animal involved. Feeding is offering, giving, or at- Import means to land on, bring into, tempting to give food or non-food or introduce into, or attempt to land items to marine mammals in the wild. on, bring into, or introduce into, any It includes operating a vessel or pro- place subject to the jurisdiction of the viding other platforms from which United States, whether or not such

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landing, bringing, or introduction con- stances), or a stimulus directed at ani- stitutes an importation within the Cus- mals that may involve a risk to health toms laws of the United States; except or welfare or that may have an impact that, for the purpose of any ban on the on normal function or behavior (i.e., importation of fish or fish products audio broadcasts directed at animals issued under the authority of 16 U.S.C. that may affect behavior). For captive 1371(a)(2)(B), the definition of ‘‘import’’ animals, this definition does not in- in § 216.24(f)(1)(ii) shall apply. clude: Incidental catch means the taking of a (1) A procedure conducted by the pro- marine mammal (1) because it is di- fessional staff of the holding facility or rectly interfering with commercial an attending veterinarian for purposes fishing operations, or (2) as a con- of animal husbandry, care, mainte- sequence of the steps used to secure the nance, or treatment, or a routine med- fish in connection with commercial ical procedure that, in the reasonable fishing operations: Provided, That a judgment of the attending veteri- marine mammal so taken must imme- narian, would not constitute a risk to diately be returned to the sea with a the health or welfare of the captive minimum of injury and further, that animal; or the taking of a marine mammal, which (2) A procedure involving either the otherwise meets the requirements of introduction of a substance or object this definition shall not be considered (i.e., as described in this definition) or an incidental catch of that mammal if a stimulus directed at animals that, in it is used subsequently to assist in the reasonable judgment of the attend- commercial fishing operations. ing veterinarian, would not involve a Intentional purse seine set means that risk to the health or welfare of the cap- a tuna purse seine vessel or associated tive animal. vessels chase marine mammals and Label means a display of written, subsequently make a purse seine set. printed, or graphic matter on or affixed Intermediary nation means a nation to the immediate container of any arti- that imports fish or fish products from cle. a fishery on the List of Foreign Fish- Land or landing means to begin off- eries and re-exports such fish or fish loading any fish, to arrive in port with products to the United States. the intention of offloading fish, or to International Dolphin Conservation cause any fish to be offloaded. Program (IDCP) means the inter- Large-scale driftnet means a gillnet national program established by the that is composed of a panel or panels of agreement signed in La Jolla, Cali- webbing, or a series of such gillnets, fornia, in June 1992, as formalized, with a total length of 2.5 kilometers or modified, and enhanced in accordance more that is used on the high seas and with the Declaration of Panama and allowed to drift with the currents and the Agreement on the IDCP. winds for the purpose of harvesting fish International Dolphin Conservation by entangling the fish in the webbing Program Act (IDCPA) means Public Law of the net. 105–42, enacted into law on August 15, Level A Harassment means any act of 1997. pursuit, torment, or annoyance which International Review Panel (IRP) has the potential to injure a marine means the International Review Panel mammal or marine mammal stock in established by the Agreement on the the wild. IDCP. Level B Harassment means any act of Intrusive research means a procedure pursuit, torment, or annoyance which conducted for bona fide scientific re- has the potential to disturb a marine search involving: A break in or cutting mammal or marine mammal stock in of the skin or equivalent, insertion of the wild by causing disruption of be- an instrument or material into an ori- havioral patterns, including, but not fice, introduction of a substance or ob- limited to, migration, breathing, nurs- ject into the animal’s immediate envi- ing, breeding, feeding, or sheltering but ronment that is likely either to be in- which does not have the potential to gested or to contact and directly affect injure a marine mammal or marine animal tissues (i.e., chemical sub- mammal stock in the wild.

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List of Foreign Fisheries means the taking, importation, export, and any most recent list, organized by har- related activities conducted under a vesting nation, of foreign commercial permit issued for scientific research or fishing operations exporting fish or fish enhancement purposes. products to the United States, that is Public display means an activity that published in the FEDERAL REGISTER by provides opportunities for the public to the Assistant Administrator and that view living marine mammals at a facil- classifies commercial fishing oper- ity holding marine mammals captive. ations according to the frequency and Regional Director means the Regional likelihood of incidental mortality and Administrator, Northeast Regional Of- serious injury of marine mammals dur- fice, NMFS, One Blackburn Drive, ing such commercial fishing operations Gloucester, MA 01930; or Regional Ad- as either an exempt fishery or an ex- ministrator, Northwest Regional Of- port fishery. fice, NMFS, 7600 Sandpoint Way, N.E., Longtail tuna means the species Thunnus tonngol. Building 1, Seattle, WA 98115; or Re- Marine environment means the oceans gional Administrator, Southeast Re- and the seas, including estuarine and gional Office, NMFS, 9721 Executive brackish waters. Center Drive North, St. Petersburg, FL Marine mammal means those speci- 33702; or Regional Administrator, mens of the following orders, which are Southwest Regional Office, NMFS, 501 morphologically adapted to the marine West Ocean Boulevard, Suite 4200, Long environment, and whether alive or Beach, CA 90802; or Regional Adminis- dead, and any part thereof, including trator, Pacific Islands Regional Office, but not limited to, any raw, dressed or NMFS, 1601 Kapiolani Boulevard, Suite dyed fur or skin: Cetacea (whales, dol- 1110, Honolulu, HI 96814; or Regional phins, and porpoises) and Pinnipedia, Administrator, Alaska Regional Office, other than walrus (seals and sea lions). NMFS, PO Box 21668, Juneau, AK 99802. MMPA means the Marine Mammal Rehabilitation means treatment of Protection Act of 1972, as amended, 16 beached and stranded marine mammals U.S.C. 1361 et seq. taken under section 109(h)(1) of the Native village or town means any com- MMPA or imported under section munity, association, tribe, band, clan 109(h)(2) of the MMPA, with the intent or group. of restoring the marine mammal’s Optimum sustainable population is a health and, if necessary, behavioral population size which falls within a patterns. range from the population level of a Secretary shall mean the Secretary of given species or stock which is the Commerce or his authorized represent- largest supportable within the eco- ative. system to the population level that re- Serious injury means any injury that sults in maximum net productivity. will likely result in mortality. Maximum net productivity is the Sexual harassment means any unwel- greatest net annual increment in popu- come sexual advance, request for sex- lation numbers or biomass resulting ual favors, or other verbal and physical from additions to the population due to conduct of a sexual nature which has reproduction and/or growth less losses the purpose or effect of substantially due to natural mortality. interfering with an individual’s work Per-stock per-year dolphin mortality limit means the maximum allowable performance or creating an intimi- number of incidental dolphin mortali- dating, hostile, or offensive working ties and serious injuries from a speci- environment. fied stock per calendar year, as estab- Skipjack tuna means the species lished under the IDCP. Euthynnus (Katsuwonus) pelamis. Pregnant means pregnant near term. Soft part means any marine mammal Pribilovians means Indians, Aleuts, part that is not a hard part. Soft parts and Eskimos who live on the Pribilof do not include urine or fecal material. Islands. South Pacific Ocean means any waters Principal investigator means the indi- of the Pacific Ocean that lie south of vidual primarily responsible for the the equator.

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South Pacific Tuna Treaty means the collection of dead animals, or parts Treaty on Fisheries Between the Gov- thereof; the restraint or detention of a ernments of Certain Pacific Island marine mammal, no matter how tem- States and the Government of the porary; tagging a marine mammal; the United States of America (50 CFR part negligent or intentional operation of 300, subpart D). an aircraft or vessel, or the doing of Southern bluefin tuna means the spe- any other negligent or intentional act cies Thunnus maccoyii. which results in disturbing or molest- Stranded or stranded marine mammal ing a marine mammal; and feeding or means a marine mammal specimen attempting to feed a marine mammal under the jurisdiction of the Secretary: in the wild. (1) If the specimen is dead, and is on Threatened species means a species of a beach or shore, or is in the water marine mammal listed as ‘‘threatened’’ within the Exclusive Economic Zone of pursuant to the Endangered Species the United States; or Act of 1973, 87 Stat. 884, Pub. L. 93–205. (2) If the specimen is alive, and is on Transboundary stock means a marine a beach or shore and is unable to re- mammal stock occurring in the: turn to the water, or is in the water (1) Exclusive economic zones or terri- within the Exclusive Economic Zone of torial sea of the United States and one the United States where the water is so or more other coastal States; or shallow that the specimen is unable to (2) Exclusive economic zone or terri- return to its natural habitat under its torial sea of the United States and on own power. the high seas. Subsistence means the use of marine Trip means a voyage starting when a mammals taken by Alaskan Natives vessel leaves port with all fish wells for food, clothing, shelter, heating, empty of fish and ending when a vessel transportation, and other uses nec- unloads all of its fish. essary to maintain the life of the taker Tuna means any fish of the genus or those who depend upon the taker to Thunnus and the species Euthynnus provide them with such subsistence. (Katsuwonus) pelamis. Subsistence uses means the customary Tuna product means any food product and traditional uses of fur seals taken processed for retail sale and intended by Pribilovians for direct personal or for human or animal consumption that family consumption as food, shelter, contains an item listed in fuel, clothing, tools or transportation; § 216.24(f)(2)(i) or (ii), but does not infor the making and selling of handi- clude perishable items with a shelf life craft articles out of nonedible byprod- of less than 3 days. ucts of fur seals taken for personal or Wasteful manner means any taking or family consumption; and for barter, or method of taking which is likely to re- sharing for personal or family consult in the killing of marine mammals sumption. As used in this definition— beyond those needed for subsistence, (1) Family means all persons related subsistence uses, or for the making of by blood, marriage, or adoption, or any authentic native articles of handicrafts person living within a household on a and clothing, or which results in the permanent basis. waste of a substantial portion of the (2) Barter means the exchange of fur marine mammal and includes, without seals or their parts, taken for subsist- limitation, the employment of a meth- ence uses— od of taking which is not likely to as- (i) For other wildlife or fish or their sure the capture or killing of a marine parts, or mammal, or which is not immediately (ii) For other food or for nonedible followed by a reasonable effort to re- items other than money if the ex- trieve the marine mammal. change is of a limited and noncommer- U.S. regulatory program means the cial nature. regulatory program governing the inci- Take means to harass, hunt, capture, dental mortality and serious injury of collect, or kill, or attempt to harass, marine mammals in the course of com- hunt, capture, collect, or kill any ma- mercial fishing operations as specified rine mammal. This includes, without in the Marine Mammal Protection Act limitation, any of the following: The and its implementing regulations.

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Yellowfin tuna means the species (c) Whenever a civil penalty has been Thunnus albacares (synonomy: assessed under these regulations, and Neothunnus macropterus). whether or not such penalty has been [39 FR 1852, Jan. 15, 1974] paid, the Secretary may request the Attorney General to institute a civil EDITORIAL NOTE: For FEDERAL REGISTER ci- action in an appropriate United States tations affecting § 216.3, see the List of CFR Sections Affected, which appears in the District Court to compel forfeiture of Finding Aids section of the printed volume such seized property or the monetary and at www.govinfo.gov. value thereof to the Secretary for disposition by him in such manner as he § 216.4 Other laws and regulations. deems appropriate. If no judicial action (a) Federal. Nothing in this part, nor to compel forfeiture is commenced any permit issued under authority of within 30 days after final decision- this part, shall be construed to relieve making assessment of a civil penalty, a person from any other requirements pursuant to § 216.60, such seized prop- imposed by a statute or regulation of erty shall immediately be returned to the United States, including any appli- the respondent. cable statutes or regulations relating (d) If the final decision of the Sec- to wildlife and fisheries, health, quar- retary under these regulations is that antine, agriculture, or customs. respondent has committed no violation (b) State laws or regulations. See part of the MMPA or of any permit or regu- 403 of this chapter. lations issued thereunder, any marine [39 FR 1852, Jan. 15, 1974, as amended at 41 mammal, marine mammal product, or FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, other cargo seized from respondent in 1993] connection with the proceedings under these regulations, or the bond or other § 216.5 Payment of penalty. monetary value substituted therefor, The respondent shall have 30 days shall immediately be returned to the from receipt of the final assessment de- respondent. cision within which to pay the penalty (e) If the Attorney General com- assessed. Upon a failure to pay the pen- mences criminal proceedings pursuant alty, the Secretary may request the to section 105(b) of the MMPA, and Attorney General to institute a civil such proceedings result in a finding action in the appropriate United States that the person accused is not guilty of District Court to collect the penalty. a criminal violation of the MMPA, the Secretary may institute proceedings [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981] for the assessment of a civil penalty under this part: Provided, That if no § 216.6 Forfeiture and return of seized such civil penalty proceedings have property. been commenced by the Secretary (a) Whenever any cargo or marine within 30 days following the final dis- mammal or marine mammal product position of the criminal case, any prop- has been seized pursuant to section 107 erty seized pursuant to section 107 of of the MMPA, the Secretary shall expe- the MMPA shall be returned to the re- dite any proceedings commenced under spondent. these regulations. (f) If any seized property is to be re- (b) Whenever a civil penalty has been turned to the respondent, the Regional assessed by the Secretary under these Director shall issue a letter author- regulations, any cargo, marine mam- izing such return. This letter shall be mal, or marine mammal product seized dispatched to the respondent by reg- pursuant to section 107 of the MMPA istered mail, return receipt requested, shall be subject to forfeiture. If re- and shall identify the respondent, the spondent voluntarily forfeits any such seized property, and, if appropriate, the seized property or the monetary value bailee of the seized property. It shall thereof without court proceedings, the also provide that upon presentation of Secretary may apply the value thereof, the letter and proper identification, if any, as determined by the Secretary, the seized property is authorized to be toward payment of the civil penalty. released. All charges for storage, care,

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or handling of the seized property ac- Subpart B—Prohibitions cruing 5 days or more after the date of the return receipt shall be for the ac- § 216.11 Prohibited taking. count of the respondent: Provided, That Except as otherwise provided in sub- if it is the final decision of the Sec- parts C, D, and I of this part 216 or in retary under these regulations that the part 228 or 229, it is unlawful for: respondent has committed the alleged (a) Any person, vessel, or conveyance violation, all charges which have ac- subject to the jurisdiction of the crued for the storage, care, or handling United States to take any marine of the seized property shall be for the mammal on the high seas, or account of the respondent. (b) Any person, vessel, or conveyance [39 FR 1852, Jan. 15, 1974. Redesignated at 46 to take any marine mammal in waters FR 61652, Dec. 18, 1981, and amended at 59 FR or on lands under the jurisdiction of 50375, Oct. 3, 1994] the United States, or (c) Any person subject to the juris- § 216.7 Holding and bonding. diction of the United States to take (a) Any marine mammal, marine any marine mammal during the mora- mammal product, or other cargo seized torium. pursuant to section 107 of the MMPA [39 FR 1852, Jan. 15, 1974, as amended at 47 shall be delivered to the appropriate FR 21254, May 18, 1982; 54 FR 21921, May 19, Regional Director of the National Ma- 1989] rine Fisheries Service (see § 201.2 of this title) or his designee, who shall either § 216.12 Prohibited importation. hold such seized property or arrange (a) Except as otherwise provided in for the proper handling and care of subparts C and D of this part 216, it is such seized property. unlawful for any person to import any (b) Any arrangement for the handling marine mammal or marine mammal and care of seized property shall be in product into the United States. writing and shall state the compensa- (b) Regardless of whether an importation to be paid. Subpart F of 15 CFR tion is otherwise authorized pursuant part 904 contains additional procedures to subparts C and D of this part 216, it that govern seized property that is sub- is unlawful for any person to import ject to forfeiture or has been forfeited into the United States any: under the MMPA. (1) Marine mammal: (i) Taken in violation of the MMPA, [39 FR 1852, Jan. 15, 1974. Redesignated at 46 or FR 61652, Dec. 18, 1981, and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] (ii) Taken in another country in violation to the laws of that country; § 216.8 Enforcement officers. (2) Any marine mammal product if (i) The importation into the United Enforcement Agents of the National States of the marine mammal from Marine Fisheries Service shall enforce which such product is made would be the provisions of the MMPA and may unlawful under paragraph (b)(1) of this take any actions authorized by the section, or MMPA with respect to enforcement. In (ii) The sale in commerce of such addition, the Secretary may utilize, by product in the country of origin if the agreement, the personnel, services, and product is illegal. facilities of any other Federal Agency (c) Except in accordance with an ex- for the purposes of enforcing this ception referred to in subpart C and MMPA. Pursuant to the terms of sec- §§ 216.31 (regarding scientific research tion 107(b) of the MMPA, the Secretary permits only) and 216.32 of this part 216, may also designate officers and em- it is unlawful to import into the United ployees of any State or of any posses- States any: sion of the United States to enforce the (1) Marine mammal which was preg- provisions of this MMPA. nant at the time of taking. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 (2) Marine mammal which was nurs- FR 61652, Dec. 18, 1981, and amended at 59 FR ing at the time of taking, or less than 50375, Oct. 3, 1994] 8 months old, whichever occurs later.

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(3) Specimen of an endangered or sisting of or composed in whole or in threatened species of marine mammal. part of, any marine mammal taken be- (4) Specimen taken from a depleted fore that date. This prior status of any species or stock of marine mammals, marine mammal or marine mammal or product may be established by submit- (5) Marine mammal taken in an inhu- ting to the Director, National Marine mane manner. Fisheries Service prior to, or at the (d) It is unlawful to import into the time of importation, an affidavit con- United States any fish, whether fresh, taining the following: frozen, or otherwise prepared, if such (1) The Affiant’s name and address; fish was caught in a manner proscribed (2) Identification of the Affiant; by the Secretary of Commerce for per- (3) A description of the marine mam- sons subject to the jurisdiction of the mals or marine mammal products United States, whether or not any ma- which the Affiant desires to import; rine mammals were in fact taken inci- (4) A statement by the Affiant that, dent to the catching of the fish. to the best of his knowledge and belief, [39 FR 1852, Jan. 15, 1974, as amended at 59 the marine mammals involved in the FR 50375, Oct. 3, 1994] application were taken prior to Decem- ber 21, 1972; § 216.13 Prohibited uses, possession, (5) A statement by the Affiant in the transportation, sales, and permits. following language: It is unlawful for: (a) Any person to use any port, har- The foregoing is principally based on the bor or other place under the jurisdic- attached exhibits which, to the best of my knowledge and belief, are complete, true and tion of the United States for any pur- correct. I understand that this affidavit is pose in any way connected with a pro- being submitted for the purpose of inducing hibited taking or an unlawful importa- the Federal Government to permit the im- tion of any marine mammal or marine portation of—under the Marine Mammal mammal product; or Protection Act of 1972 (16 U.S.C. 1361 through (b) Any person subject to the juris- 1407) and regulations promulgated there- diction of the United States to possess under, and that any false statements may any marine mammal taken in violation subject me to the criminal penalties of 13 of the MMPA or these regulations, or U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 1972. to transport, sell, or offer for sale any such marine mammal or any marine (b) Either one of two exhibits shall be mammal product made from any such attached to such affidavit, and will mammal. contain either: (c) Any person subject to the juris- (1) Records or other available evi- diction of the United States to use in a dence showing that the product con- commercial fishery, any means or sists of or is composed in whole or in method of fishing in contravention of part of marine mammals taken prior to regulations and limitations issued by the effective date of the MMPA. Such the Secretary of Commerce for that records or other evidentiary material fishery to achieve the purposes of this must include information on how, MMPA. when, where, and by whom the animals (d) Any person to violate any term, were taken, what processing has taken condition, or restriction of any permit place since taking, and the date and lo- issued by the Secretary. cation of such processing; or [39 FR 1852, Jan. 15, 1974, as amended at 59 (2) A statement from a government FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May agency of the country of origin exer- 10, 1996] cising jurisdiction over marine mammals that any and all such mammals § 216.14 Marine mammals taken before from which the products sought to be the MMPA. imported were derived were taken prior (a) Section 102(e) of the MMPA pro- to December 21, 1972. vides, in effect, that the MMPA shall (c) No pre-Act marine mammal or not apply to any marine mammal pre-Act marine mammal product may taken prior to December 21, 1972, or to be imported unless the requirements of any marine mammal product, con- this section have been fulfilled.

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(d) This section has no application to Nikolaya Bay, and Amur River in the any marine mammal or marine mam- Sea of Okhotsk. mal product intended to be imported [53 FR 17899, May 18, 1988, as amended at 58 pursuant to §§ 216.21, 216.31 or § 216.32. FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, [39 FR 1852, Jan. 15, 1974, as amended at 59 Oct. 3, 1994; 65 FR 34597, May 31, 2000; 68 FR FR 50375, 50376, Oct. 3, 1994] 31983, May 29, 2003; 69 FR 31324, June 3, 2004; 81 FR 74719, Oct. 27, 2016] § 216.15 Depleted species. The following species or population § 216.16 Prohibitions under the Gen- stocks have been designated by the As- eral Authorization for Level B har- sistant Administrator as depleted assment for scientific research. under the provisions of the MMPA. It shall be unlawful for any person (a) Hawaiian monk seal (Monachus to: schauinslandi). (a) Provide false information in a let- (b) Bowhead whale (Balaena ter of intent submitted pursuant to mysticetus). § 216.45(b); (b) Violate any term or condition im- (c) North Pacific fur seal (Callorhinus posed pursuant to § 216.45(d). ursinus). Pribilof Island population. (d) Bottlenose dolphin (Tursiops [59 FR 50376, Oct. 3, 1994] truncatus), coastal-migratory stock along the U.S. mid-Atlantic coast. § 216.17 General prohibitions. (e) Eastern spinner dolphin (Stenella It is unlawful for any person to: longirostris orientalis). (a) Assault, resist, oppose, impede, (f) Northeastern offshore spotted dol- intimidate, threaten, or interfere with phin (Stenella attenuata). any authorized officer in the conduct of any search, inspection, investigation or (g) Cook Inlet, Alaska, stock of seizure in connection with enforcement beluga whales (Delphinapterus leucas). of the MMPA, DPCIA, or IDCPA. The stock includes all beluga whales (b) Interfere with, delay, or prevent occurring in waters of the Gulf of Alas- by any means the apprehension of an- ° ka north of 58 North latitude includ- other person, knowing that such person ing, but not limited to, Cook Inlet, has committed any act prohibited by Kamishak Bay, Chinitna Bay, Tuxedni the MMPA. Bay, Prince William Sound, Yakutat (c) Resist a lawful arrest for any act Bay, Shelikof Strait, and off Kodiak Is- prohibited under the MMPA. land and freshwater tributaries to (d) Make any false statement, oral or these waters. written, to an authorized officer con- (h) Eastern North Pacific Southern cerning any act under the jurisdiction Resident stock of killer whales of the MMPA, DPCIA, IDCPA, or at- (Orcinus orca). The stock includes all tempt to do any of the above. resident killer whales in pods J, K, and (e) Interfere with, obstruct, delay, or L in the waters of, but not limited to, prevent by any means an investigation, the inland waterways of southern Brit- search, seizure, or disposition of seized ish Columbia and Washington, includ- property in connection with enforce- ing the Georgia Strait, the Strait of ment of the MMPA, DPCIA, or IDCPA. Juan de Fuca, and Puget Sound. [70 FR 19008, Apr. 12, 2005] (i) AT1 stock of killer whales (Orcinus orca). The stock includes all § 216.18 Approaching humpback killer whales belonging to the AT1 whales in Alaska. group of transient killer whales occur- (a) Prohibitions. Except as provided ring primarily in waters of Prince Wil- under paragraph (b) of this section, it liam Sound, Resurrection Bay, and the is unlawful for any person subject to Kenai Fjords region of Alaska. the jurisdiction of the United States to (j) Sakhalin Bay-Nikolaya Bay-Amur commit, to attempt to commit, to so- River beluga whales (Delphinapterus licit another to commit, or to cause to leucas). The stock includes all beluga be committed, within 200 nautical whales primarily occurring in, but not miles (370.4 km) of Alaska, or within limited to, waters of Sakhalin Bay, inland waters of the state, any of the

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acts in paragraphs (a)(1) through (a)(3) (4) Paragraph (a) of this section does of this section with respect to hump- not apply to state, local, or Federal back whales (Megaptera novaeangliae): government vessels operating in the (1) Approach, by any means, includ- course of official duty. ing by interception (i.e., placing a ves- (5) Paragraph (a) of this section does sel in the path of an oncoming hump- not affect the rights of Alaska Natives back whale so that the whale surfaces under 16 U.S.C. 1539(e). within 100 yards (91.4 m) of the vessel), (6) This section shall not take prece- within 100 yards (91.4 m) of any hump- dence over any more restrictive con- back whale; flicting Federal regulation pertaining (2) Cause a vessel or other object to to humpback whales, including the reg- approach within 100 yards (91.4 m) of a ulations at 36 CFR 13.1102–13.1188 that humpback whale; or pertain specifically to the waters of (3) Disrupt the normal behavior or Glacier Bay National Park and Pre- prior activity of a whale by any other serve. act or omission. A disruption of normal (c) General measures. Notwithstanding behavior may be manifested by, among the prohibitions and exceptions in other actions on the part of the whale, paragraphs (a) and (b) of this section, a rapid change in direction or speed; es- to avoid collisions with humpback cape tactics such as prolonged diving, whales, vessels must operate at a slow, underwater course changes, underwater safe speed when near a humpback exhalation, or evasive swimming pat- whale. ‘‘Safe speed’’ has the same terns; interruptions of breeding, nurs- meaning as the term is defined in 33 ing, or resting activities, attempts by a CFR 83.06 and the International Regu- whale to shield a calf from a vessel or lations for Preventing Collisions at Sea human observer by tail swishing or by 1972 (see 33 U.S.C. 1602), with respect to other protective movement; or the avoiding collisions with humpback abandonment of a previously fre- whales. quented area. [81 FR 62020, Sept. 8, 2016] (b) Exceptions. The following exceptions apply, but any person who claims § 216.19 Special restrictions for hump- the applicability of an exception has back whales in waters surrounding the burden of proving that the excep- the islands of Hawaii. tion applies: (a) Prohibitions. Except as noted in (1) Paragraph (a) of this section does paragraph (b) of this section, it is un- not apply if an approach is authorized lawful for any person subject to the ju- by the National Marine Fisheries Serv- risdiction of the United States to com- ice through a permit issued under submit, to attempt to commit, to solicit part D of this part (Special Exceptions) another to commit, or to cause to be or through a similar authorization. committed, within 200 nautical miles (2) Paragraph (a) of this section does (370.4 km) of the islands of Hawaii, any not apply to the extent that a vessel is of the following acts with respect to restricted in its ability to maneuver humpback whales (Megaptera and, because of the restriction, cannot novaeangliae): comply with paragraph (a) of this sec- (1) Operate any aircraft within 1,000 tion. feet (304.8 m) of any humpback whale; (3) Paragraph (a) of this section does (2) Approach, by any means, within not apply to commercial fishing vessels 100 yards (91.4 m) of any humpback lawfully engaged in actively setting, whale; retrieving or closely tending commer- (3) Cause a vessel, person, or other cial fishing gear. For purposes of this object to approach within 100 yards section, commercial fishing means tak- (91.4 m) of a humpback whale; ing or harvesting fish or fishery re- (4) Approach a humpback whale by sources to sell, barter, or trade. Com- interception (i.e., placing an aircraft, mercial fishing does not include com- vessel, person, or other object in the mercial passenger fishing operations path of a humpback whale so that the (i.e., charter operations or sport fishing whale approaches within 1,000 feet activities). (304.8 m) of the aircraft or 100 yards

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(91.4 m) of the vessel, person, or ob- any international treaty, convention ject); or or agreement, or any statute imple- (5) Disrupt the normal behavior or menting the same relating to the tak- prior activity of a whale by any other ing or importation of marine mammals act or omission. A disruption of normal or marine mammal products, which behavior may be manifested by, among was existing and in force prior to De- other actions on the part of the whale, cember 21, 1972, and to which the a rapid change in direction or speed; es- United States was a party. Specifi- cape tactics such as prolonged diving, cally, the regulations in subpart B of underwater course changes, underwater this part and the provisions of the exhalation, or evasive swimming pat- MMPA shall not apply to activities terns; interruptions of breeding, nurs- carried out pursuant to the Interim ing, or resting activities, attempts by a Convention on the Conservation of whale to shield a calf from a vessel or North Pacific Fur Seals signed at human observer by tail swishing or by Washington on February 9, 1957, and other protective movements; or the the Fur Seal Act of 1966, 16 U.S.C. 1151 abandonment of a previously fre- through 1187, as in each case, from quented area. time to time amended. (b) Exceptions. The prohibitions of paragraph (a) of this section do not [39 FR 1852, Jan. 15, 1974, as amended at 59 apply to: FR 50376, Oct. 3, 1994] (1) Federal, State, or local government vessels or persons operating in § 216.22 Taking by State or local gov- the course of their official duties such ernment officials. as law enforcement, search and rescue, (a) A State or local government offi- or public safety; cial or employee may take a marine (2) Vessel operations necessary to mammal in the normal course of his avoid an imminent and serious threat duties as an official or employee, and to a person, vessel, or the environment; no permit shall be required, if such (3) Vessels restricted in their ability taking: to maneuver, and because of this re- (1) Is accomplished in a humane man- striction are not able to comply with ner; approach restrictions; or (2) Is for the protection or welfare of (4) Vessels or persons authorized such mammal or for the protection of under permit or authorization issued the public health or welfare; and by NMFS to conduct scientific research (3) Includes steps designed to insure or response efforts that may result in return of such mammal, if not killed in taking of humpback whales. the course of such taking, to its nat- (c) (1) In connec- Affirmative defense. ural habitat. In addition, any such offi- tion with any action alleging a viola- cial or employee may, incidental to tion of this section, any person claim- such taking, possess and transport, but ing the benefit of any exemption, ex- not sell or offer for sale, such mammal ception, or permit listed in paragraph and use any port, harbor, or other place (b) of this section has the burden of under the jurisdiction of the United proving that the exemption or excep- States. All steps reasonably prac- tion is applicable, or that the permit ticable under the circumstances shall was granted and was valid and in force be taken by any such employee or offi- at the time of the alleged violation. cial to prevent injury or death to the (2) [Reserved] marine mammal as the result of such [81 FR 62017, Sept. 8, 2016] taking. Where the marine mammal in question is injured or sick, it shall be Subpart C—General Exceptions permissible to place it in temporary captivity until such time as it is able § 216.21 Actions permitted by inter- to be returned to its natural habitat. It national treaty, convention, or shall be permissible to dispose of a car- agreement. cass of a marine mammal taken in ac- The MMPA and these regulations cordance with this subsection whether shall not apply to the extent that they the animal is dead at the time of tak- are inconsistent with the provisions of ing or dies subsequent thereto.

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(b) Each taking permitted under this (iii) A description of the parts section shall be included in a written salvaged; report to be submitted to the Secretary (iv) The date and the location of the every six months beginning December taking; 31, 1973. Unless otherwise permitted by (v) Such other information as deemed the Secretary, the report shall contain necessary by the Assistant Adminis- a description of: trator. (1) The animal involved; (3) Identification and curation. The Re- (2) The circumstances requiring the gional Director will assign a single taking; unique number to each carcass, and the (3) The method of taking; parts thereof, that are salvaged under (4) The name and official position of the provisions of this section. The per- the State official or employee involved; son who salvaged the specimen may (5) The disposition of the animal, in- designate the number to be assigned. cluding in cases where the animal has After this number is assigned, the per- been retained in captivity, a descrip- son who salvaged the specimen must tion of the place and means of confine- permanently mark that number on ment and the measures taken for its each separate hard part of that speci- maintenance and care; and men and must affix that number with (6) Such other information as the tags or labels to each soft part of that Secretary may require. specimen or the containers in which (c) Salvage of dead stranded marine that soft part is kept. Each specimen mammals or parts therefrom and sub- salvaged under this section must be sequent transfer. curated in accordance with profes- (1) Salvage. In the performance of of- sional standards. ficial duties, a state or local govern- (4) No sale or commercial trade. No per- ment employee; an employee of the Na- son may sell or trade for commercial tional Marine Fisheries Service, the purposes any marine mammal speci- U.S. Fish and Wildlife Service, or any men salvaged under this section. other Federal agency with jurisdiction (5) Transfer without prior authoriza- and conservation responsibilities in tion. A person who salvages a marine marine shoreline areas; or a person au- mammal specimen under this section thorized under 16 U.S.C. 1382(c) may may transfer that specimen to another take and salvage a marine mammal person if: specimen if it is stranded and dead or it (i) The person transferring the ma- was stranded or rescued and died dur- rine mammal specimen does not re- ing treatment, transport, captivity or ceive remuneration for the specimen; other rehabilitation subsequent to that (ii) The person receiving the marine stranding or distress if salvage is for mammal specimen is an employee of the purpose of utilization in scientific the National Marine Fisheries Service, research or for the purpose of mainte- the U.S. Fish and Wildlife Service, or nance in a properly curated, profes- any other Federal agency with jurisdic- sionally accredited scientific collection and conservation responsibilities tion. in marine shoreline areas; is a person (2) Registration. A person salvaging a authorized under 16 U.S.C. 1382(c); or is dead marine mammal specimen under a person who has received prior author- this section must register the salvage ization under paragraph (c)(6) of this of the specimen with the appropriate section; Regional Office of the National Marine (iii) The marine mammal specimen is Fisheries Service within 30 days after transferred for the purpose of scientific the taking or death occurs. The reg- research, for the purpose of mainte- istration must include: nance in a properly curated, profes- (i) The name, address, and any offi- sionally accredited scientific collec- cial position of the individual engaged tion, or for educational purposes; in the taking and salvage; (iv) The unique number assigned by (ii) A description of the marine mam- the National Marine Fisheries Service mal specimen salvaged including the is on, marked on, or affixed to the ma- scientific and common names of the rine mammal specimen or container; species; and

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(v) Except as provided under para- accredited scientific collection within graph (c)(8) of this section, the person the United States. transferring the marine mammal specimen notifies the appropriate Regional [39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991] Office of the National Marine Fisheries Service of the transfer, including noti- § 216.23 Native exceptions. fication of the number of the specimen transferred and the person to whom the (a) Taking. Notwithstanding the pro- specimen was transferred, within 30 hibitions of subpart B of this part 216, days after the transfer occurs. but subject to the restrictions con- (6) Other transfers within the United tained in this section, any Indian, States. Except as provided under para- Aleut, or Eskimo who resides on the graphs (c)(5) and (c)(8) of this section, a coast of the North Pacific Ocean or the person who salvages a marine mammal Arctic Ocean may take any marine specimen, or who has received a marine mammal without a permit, if such tak- mammal specimen under the provi- ing is: sions of this section, may not transfer (1) By Alaskan Natives who reside in that specimen to another person within Alaska for subsistence, or the United States unless the Regional (2) For purposes of creating and sell- Director of the appropriate Regional ing authentic native articles of handi- Office of the National Marine Fisheries craft and clothing, and Service grants prior written authoriza- (3) In each case, not accomplished in tion for the transfer. The Regional Di- a wasteful manner. rector may grant authorization for the (b) Restrictions. (1) No marine mam- transfer if there is evidence that the mal taken for subsistence may be sold conditions listed under paragraphs or otherwise transferred to any person (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this other than an Alaskan Native or deliv- section are met. ered, carried, transported, or shipped in (7) Tranfers outside of the United interstate or foreign commerce, unless: States. A person who salvages a marine (i) It is being sent by an Alaskan Na- mammal specimen, or a person who has tive directly or through a registered received a marine mammal specimen agent to a tannery registered under under the provisions of this section, paragraph (c) of this section for the may not transfer that specimen to a purpose of processing, and will be re- person outside of the United States un- turned directly or through a registered less the Assistant Administrator agent to the Alaskan Native; or grants prior written authorization for (ii) It is sold or transferred to a reg- the transfer. The Assistant Adminis- istered agent in Alaska for resale or trator may grant authorization for the transfer to an Alaskan Native; or transfer if there is evidence that the (iii) It is an edible portion and it is conditions listed under paragraphs sold in an Alaskan Native village or (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this town. section are met. (2) No marine mammal taken for pur- (8) Exceptions to requirements for notifi- poses of creating and selling authentic cation or prior authorization. A person native articles of handicraft and cloth- may transfer a marine mammal speci- ing may be sold or otherwise trans- men salvaged under this section with- ferred to any person other than an In- out the notification required in para- dian, Aleut or Eskimo, or delivered, graph (c)(5)(v) of this section or the carried, transported or shipped in prior authorization required in para- interstate or foreign commerce, unless: graph (c)(6) of this section if: (i) It is being sent by an Indian, (i) The transfer is a temporary trans- Aleut or Eskimo directly or through a fer to a laboratory or research facility registered agent to a tannery reg- within the United States so that anal- istered under paragraph (c) of this sec- yses can be performed for the person tion for the purpose of processing, and salvaging the specimen; or will be returned directly or through a (ii) The transfer is a loan of not more registered agent to the Indian, Aleut or than 1 year to another professionally Eskimo; or

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(ii) It is sold or transferred to a reg- garding records, inventory segregation, istered agent for resale or transfer to reports, and inspection. The Secretary an Indian, Aleut, or Eskimo; or may charge a reasonable fee for proc- (iii) It has first been transformed essing such applications, including an into an authentic native article of appropriate apportionment of overhead handicraft or clothing; or and administrative expenses of the De- (iv) It is an edible portion and sold partment of Commerce. (A) in an Alaskan Native village or (d) Notwithstanding the preceding town, or (B) to an Alaskan Native for provisions of this section, whenever, his consumption. under the MMPA, the Secretary deter- (c) Any tannery, or person who wish- mines any species of stock of marine es to act as an agent, within the juris- mammals to be depleted, he may pre- diction of the United States may apply scribe regulations pursuant to section to the Director, National Marine Fish- 103 of the MMPA upon the taking of eries Service, U.S. Department of Com- such marine animals by any Indian, merce, Washington, DC 20235, for reg- Aleut, or Eskimo and, after promulga- istration as a tannery or an agent tion of such regulations, all takings of which may possess and process marine such marine mammals shall conform mammal products for Indians, Aleuts, to such regulations. or Eskimos. The application shall in- (e) Marking and reporting of Cook Inlet clude the following information: Beluga Whales—(1) Definitions. In addi- (i) The name and address of the appli- tion to definitions contained in the cant; MMPA and the regulations in this part: (ii) A description of the applicant’s (i) Reporting means the collection and procedures for receiving, storing, proc- delivery of biological data, harvest essing, and shipping materials; data, and other information regarding (iii) A proposal for a system of book- the effect of taking a beluga whale keeping and/or inventory segregation (Delphinapterus leucas) from Cook Inlet, by which the applicant could maintain as required by NMFS. accurate records of marine mammals (ii) Whaling captain or vessel operator received from Indians, Aleuts, or Eski- means the individual who is identified mos pursuant to this section; by Alaskan Natives as the leader of (iv) Such other information as the each hunting team (usually the other Secretary may request; crew on the boat) and who is the whal- (v) A certification in the following ing captain; or the individual operating language: the boat at the time the whale is harvested or transported to the place of I hereby certify that the foregoing infor- processing. mation is complete, true and correct to the best of my knowledge and belief. I under- (iii) Cook Inlet means all waters of stand that this information is submitted for Cook Inlet north of 59° North latitude, the purpose of obtaining the benefit of an ex- including, but not limited to, waters of ception under the Marine Mammal Protec- Kachemak Bay, Kamishak Bay, tion Act of 1972 (16 U.S.C. 1361 through 1407) Chinitna Bay, and Tuxedni Bay. and regulations promulgated thereunder, and (2) Marking. Each whaling captain or that any false statement may subject me to vessel operator, upon killing and land- the criminal penalties of 18 U.S.C. 1001, or to ing a beluga whale (Delphinapterus penalties under the Marine Mammal Protec- tion Act of 1972. leucas) from Cook Inlet, Alaska, must remove the lower left jawbone, leaving (vi) The signature of the applicant. the teeth intact and in place. When The sufficiency of the application shall multiple whales are harvested during be determined by the Secretary, and in one hunting trip, the jawbones will be that connection, he may waive any re- marked for identification in the field quirement for information, or require to ensure correct reporting of harvest any elaboration or further information information by placing a label marked deemed necessary. The registration of with the date, time, and location of a tannery or other agent shall be sub- harvest within the container in which ject to such conditions as the Sec- the jawbone is placed. The jawbone(s) retary prescribes, which may include, must be retained by the whaling cap- but are not limited to, provisions retain or vessel operator and delivered to

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NMFS at the Anchorage Field Office, provided that nothing herein shall be 222 West 7th Avenue, Anchorage, Alas- interpreted to prohibit or restrict cus- ka 99513 within 72 hours of returning tomary and traditional subsistence from the hunt. practices of barter and sharing of Cook (3) Reporting. Upon delivery to NMFS Inlet beluga parts and products. of a jawbone, the whaling captain or (ii) Beluga whale calves or adults with vessel operator must complete and calves. The taking of a calf or an adult mail a reporting form, available from whale accompanied by a calf is prohib- NMFS, to the NMFS Anchorage Field ited. Office within 30 days. A separate form (iii) Season. All takings of beluga is required for each whale harvested. whales authorized under § 216.23(f) shall (i) To be complete, the form must occur no earlier than July 1 of each contain the following information: the year. date and location of kill, the method of (iv) Taking during 2001–2004. The har- harvest, and the coloration of the vest of Cook Inlet beluga whales is re- whale. The respondent will also be in- stricted during the four-year period of vited to report on any other observa- 2001–2004 as follows: tions concerning the animal or cir- (A) Strike limitations. Subject to the cumstance of the harvest. suspension provision of subparagraph (ii) Data collected pursuant to para- (C), a total of six (6) strikes, which graph (e) of this section will be re- could result in up to six landings, are ported on forms obtained from the An- to be allocated through co-manage- chorage Field Office. These data will be ment agreement(s). maintained in the NMFS Alaska Re- (B) Strike allocations. Four strikes, gional Office in Juneau, Alaska, where not to exceed one per year, are allo- such data will be available for public cated to the Native Village of Tyonek. review. The remaining two strikes will be allo- (4) No person may falsify any infor- cated over the 4–year period through mation required to be set forth on the co-management agreement with other reporting form as required by para- Cook Inlet community hunters, with graph (e) of this section. no more than one such strike being al- (5) The Anchorage Field Office of located during every other year. NMFS is located in room 517 of the (C) Emergency provisions. Takings of Federal Office Building, 222 West 7th beluga whales authorized under § 216.23 Avenue; its mailing address is: NMFS, will be suspended whenever unusual Box 43, Anchorage, AK. 99513. mortalities exceed six (6) whales in any (f) Harvest management of Cook Inlet year. ‘‘Unusual mortalities’’ include all beluga whales—(1) Cooperative manage- documented human-caused mortality ment of subsistence harvest. Subject to (including illegal takings and net en- the provisions of 16 U.S.C. 1371(b) and tanglements but excluding all legally any further limitations set forth in harvested whales) and all documented § 216.23, any taking of a Cook Inlet mortality resulting from unknown or beluga whale by an Alaska Native must natural causes that occur above nor- be authorized under an agreement for mal levels, considered for the purposes the co-management of subsistence uses of this provision to be twelve beluga (hereinafter in this paragraph ‘‘co- whales per year. The level of unusual management agreement’’) between the mortalities shall be calculated by doc- National Marine Fisheries Service and umenting mortality for the calendar an Alaska Native organization(s). year and subtracting twelve. The sum (2) Limitations. (i) Sale of Cook Inlet of this result and the carry over of un- beluga whale parts and products. Au- usual mortality from any previous year thentic Native articles of handicraft from which the population has not re- and clothing made from nonedible by- covered is the level of unusual mortali- products of beluga whales taken in ac- ties for the current year. If in any year cordance with the provisions of this the number of unusual mortalities ex- paragraph may be sold in interstate ceeds six whales, no strikes will be al- commerce. The sale of any other part lowed in that year or in subsequent or product, including food stuffs, from years until the population has recov- Cook Inlet beluga whales is prohibited, ered from those mortalities through

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foregone future harvests and natural than 1 percent, less than 2 percent, or recruitment. greater than 3 percent. NMFS will then (v) Taking during 2008 and subsequent use paragraphs (f)(2)(v)(B)(3(i)) and years. (A) Co-management agreements (f)(2)(v)(B)(3)(vi) of this section to se- pursuant to paragraph (f)(1) of this sec- lect the proper cell from the Harvest tion may be established for 5–year in- Table to determine the harvest levels tervals beginning in 2008. Agreements for the next 5–year interval. must include specific provisions re- (i) Is the average stock abundance garding the number and allocation of over the previous 5–year period less strikes, hunting practices to promote than 350 beluga whales? If yes, the Har- consistency with limitations in para- vest Table provides that the harvest is graph (f)(2)(ii) of this section, and to zero during the next 5–year period. If improve efficiency of the harvest, miti- no, go to (f)(2)(v)(B)(3)(ii) of this sec- gating measures, and enforcement. tion. Agreements may include provisions re- (ii) Is the current year 2035 or later garding the sex composition of the and is there more than a 20 percent beluga harvest. probability the growth rate is less than (B) Strike/harvest levels for each 5– 1 percent? If yes, the harvest is zero year planning interval beginning in during the next 5–year period. If no, go 2008 will be determined by the recovery to paragraph (f)(2)(v)(B)(3)(iii) of this of this stock as measured by the aver- section. age abundance in the prior 5–year in- (iii) Is the current year between 2020 terval and the best estimate of the pop- and 2034 and there is more than a 20 ulation growth rate using information percent probability the growth rate is obtained in the 10 years prior to each less than 1 percent? If yes, the harvest 5–year interval. Criteria for catego- is three whales during the next 5–year rizing growth rates are presented below period. If no, go to paragraph as an algorithm using the estimated (f)(2)(v)(B)(3)(iv) of this section. abundance, the distribution statistics (iv) Is the current year 2015 or later for growth rates, and the date. Harvest and is there more than a 25 percent levels are subject to the Expected Mor- probability the growth rate is less than tality Limit. The established strike 2 percent? If yes, go to the harvest levels are presented in the Harvest table using the ‘‘Low’’ growth rate col- Table and the following algorithm will umn. If no, go to paragraph be used to determine harvest levels for (f)(2)(v)(B)(3)(vi)) of this section. each 5–year period beginning in 2008. (v) Is the current year prior to 2015 (1) NMFS will calculate the average and is there more than a 75 percent stock abundance over the previous 5– probability the growth rate is less than year period. 2 percent? If yes, go to the harvest (2) NMFS will calculate a population table using the ‘‘Low’’ growth rate col- growth rates from abundance estimates umn. If no, go to paragraph for the most recent 10–year period prior (f)(2)(v)(B)(3)(vi) of this section. to the next 5–year period. (vi) Is there more than a 25–percent (3) Using the abundance and growth probability the growth rate is more information obtained in accordance than 3 percent? If yes, go to the harvest with paragraphs (f)(2)(v)(B)(1) and table using the ‘‘High’’ growth rate col- (f)(2)(v)(B)(2), NMFS will calculate the umn. If no, go to the harvest table probabilities that the growth rate using the ‘‘Intermediate’’ growth rate within the population would be less column.

HARVEST TABLE

Expected 5–year population aver- ‘‘High’’ growth rate ‘‘Intermediate’’ growth ‘‘Low’’ growth rate Mortality ages rate Limit

Less than 350 ...... 0 0 0 - 350–399 ...... 8 strikes in 5 years 5 strikes in 5 years 5 strikes in 5 years 21 400–449 ...... 9 strikes in 5 years 8 strikes in 5 years 5 strikes in 5 years 24 450–499 ...... 10 strikes in 5 years 8 strikes in 5 years 5 strikes in 5 years 27 500–524 ...... 14 strikes in 5 years 9 strikes in 5 years 5 strikes in 5 years 30 525–549 ...... 16 strikes in 5 years 10 strikes in 5 years 5 strikes in 5 years 32

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HARVEST TABLE—Continued

Expected 5–year population aver- ‘‘High’’ growth rate ‘‘Intermediate’’ growth ‘‘Low’’ growth rate Mortality ages rate Limit

550–574 ...... 20 strikes in 5 years 15 strikes in 5 years 5 strikes in 5 years 33 575–599 ...... 22 strikes in 5 years 16 strikes in 5 years 5 strikes in 5 years 35 600–624 ...... 24 strikes in 5 years 17 strikes in 5 years 6 strikes in 5 years 36 625–649 ...... 26 strikes in 5 years 18 strikes in 5 years 6 strikes in 5 years 38 650–699 ...... 28 strikes in 5 years 19 strikes in 5 years 7 strikes in 5 years 39 700–779 ...... 32 strikes in 5 years 20 strikes in 5 years 7 strikes in 5 years 42 780 + ...... Consult with co-managers to expand harvest levels while allowing for the population to grow

(C) At the beginning of each 5–year § 216.24 Taking and related acts in period, an Expected Mortality Limit is commercial fishing operations in- determined from the Harvest Table cluding tuna purse seine vessels in using the 5–year average abundance. the eastern tropical Pacific Ocean. During the course of each calendar (a)(1) No marine mammal may be year, the number of beach casts car- taken in the course of a commercial casses and carcasses found floating ei- fishing operation by a U.S. purse seine ther reported to NMFS or observed by fishing vessel in the ETP unless the NMFS personnel will be the number of taking constitutes an incidental catch mortalities for that year. If at the end as defined in § 216.3, and vessel and op- of each calendar year this number ex- erator permits have been obtained in ceeds the Expected Mortality Limit, accordance with these regulations, and then an unusual mortality event has such taking is not in violation of such occurred. The Estimated Excess Mor- permits or regulations. talities will be calculated as twice the (2)(i) It is unlawful for any person number of reported dead whales above using a U.S. purse seine fishing vessel the Expected Mortality Limit. The har- of 400 short tons (st) (362.8 metric tons vest will then be adjusted as follows: (mt)) carrying capacity or less to in- (1) The harvest level for the remain- tentionally deploy a net on or to encir- ing years of the current 5–year period cle dolphins, or to carry more than two will be recalculated by reducing the 5– speedboats, if any part of its fishing year average abundance from the pre- trip is in the ETP. vious 5–year period by the Estimated (ii) It is unlawful for any person Excess Mortalities. The revised abun- using a U.S. purse seine fishing vessel dance estimate would then be used in of greater than 400 st (362.8 mt) car- the harvest table for the remaining rying capacity that does not have a years and the harvest adjusted accord- valid permit obtained under these regu- ingly. lations to catch, possess, or land tuna (2) For the subsequent 5–year period, if any part of the vessel’s fishing trip is in the ETP. for the purpose of calculating the 5– year average, the Estimated Excess (iii) It is unlawful for any person sub- Mortalities would be subtracted from ject to the jurisdiction of the United States to receive, purchase, or possess the abundance estimates of the year of tuna caught, possessed, or landed in the excess mortality event so that the violation of paragraph (a)(2)(ii) of this average would reflect the loss to the section. population. This average would then be (iv) It is unlawful for any person sub- used in the table to set the harvest ject to the jurisdiction of the United level. States to intentionally deploy a purse [39 FR 1852, Jan. 15, 1974, as amended at 59 seine net on, or to encircle, dolphins FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, from a vessel operating in the ETP 1999; 69 FR 17980, Apr. 6, 2004; 73 FR 60985, when there is not a DML assigned to Oct. 15, 2008] that vessel.

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(v) It is unlawful for any person sub- Operator permits will be valid through ject to the jurisdiction of the United December 31 of each year. States to intentionally deploy a purse (3) Possession and display. A valid ves- seine net on, or to encircle, dolphins sel permit issued pursuant to para- from a vessel operating in the ETP graph (b)(1) of this section must be on with an assigned DML after a set in board the vessel while engaged in fish- which the DML assigned to that vessel ing operations, and a valid operator has been reached or exceeded. permit issued pursuant to paragraph (vi) Alleged violations of the Agree- (b)(2) of this section must be in the pos- ment on the IDCP and/or these regula- session of the operator to whom it was tions identified by the International issued. Permits must be shown upon re- Review Panel will be considered for po- quest to NMFS enforcement agents, tential enforcement action by NMFS. U.S. Coast Guard officers, or des- (3) Upon written request made in ad- ignated agents of NMFS or the Inter- vance of entering the ETP, the limita- American Tropical Tuna Commission tions in paragraphs (a)(2)(ii) and (e)(1) (IATTC) (including observers). A vessel of this section may be waived by the owner or operator who is at sea on a Administrator, West Coast Region, for fishing trip when his or her permit ex- the purpose of allowing transit through pires and to whom a permit for the the ETP. The waiver will provide, in next year has been issued, may take writing, the terms and conditions marine mammals under the terms of under which the vessel must operate, the new permit without having to dis- including a requirement to report to play it on board the vessel until the the Administrator, West Coast Region, vessel returns to port. the vessel’s date of exit from or subse- (4) Application for vessel permit. ETP quent entry into the permit area. tuna purse seine vessel permit applica- (b) Permits—(1) Vessel permit. The tion forms and instructions for their owner or managing owner of a U.S. completion are available from NMFS. purse seine fishing vessel of greater To apply for an ETP vessel permit, a than 400 st (362.8 mt) carrying capacity vessel owner or managing owner must that participates in commercial fishing complete, sign, and submit the appro- operations in the ETP must possess a priate form via fax to (562) 980–4047, by valid vessel permit issued under para- email to [email protected], or through graph (b) of this section. This permit is an online permit system, allowing at not transferable and must be renewed least 15 days for processing. To submit annually. If a vessel permit holder sur- an ETP vessel permit application on- renders his/her permit to the Adminis- line, a request must first be made to trator, West Coast Region, the permit [email protected], and NMFS will give will not be returned and a new permit instructions about whether and how an will not be issued before the end of the online application can be made. To re- calendar year. Vessel permits will be quest that a vessel in excess of 400 st valid through December 31 of each (362.8 mt) carrying capacity be cat- year. egorized as active on the Vessel Reg- (2) Operator permit. The person in ister under § 300.22(b)(4)(ii) of this title charge of and actually controlling fish- in the following calendar year, the ing operations (hereinafter referred to owner or managing owner must submit as the operator) on a U.S. purse seine the vessel permit application, payment fishing vessel engaged in commercial of the vessel permit application fee, fishing operations under a vessel per- and payment of the vessel assessment mit must possess a valid operator per- fee no later than September 15 for ves- mit issued under paragraph (b) of this sels for which a DML is requested for section. Such permits are not transfer- the following year, and no later than able and must be renewed annually. To November 30 for vessels for which a receive a permit, the operator must DML is not requested for the following have satisfactorily completed all re- year. quired training under paragraph (c)(5) (5) Application for operator permit. An of this section. The operator’s permit applicant for an operator permit must is valid only when the permit holder is complete, sign, and submit the appro- on a vessel with a valid vessel permit. priate form obtained from NMFS and

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submit payment of the permit applica- Payment of the vessel assessment fee tion fee to the Administrator, West must be consistent with the vessel’s Coast Region, allowing at least 45 days status, either active or inactive, on the for processing. Application forms and Vessel Register in § 300.22(b)(4) of this instructions for their completion are title. available from NMFS. (C) The owner or managing owner of (6) Fees—(i) Vessel permit application a purse seine vessel that is permitted fees. Payment of the permit application and authorized under an alternative fee is required before NMFS will issue international tuna purse seine fisheries a permit. The Assistant Administrator management regime in the Pacific may change the amount of this fee at Ocean must submit the vessel assess- any time if a different fee is deter- ment fee to the IATTC, prior to obtain- mined in accordance with the NOAA ing an observer and entering the ETP Finance Handbook. The amount of the to fish. Consistent with § 300.22(b)(1) of fee will be printed on the vessel permit this title, this class of purse seine ves- application form provided by the Ad- sels is not required to be listed on the ministrator, West Coast Region. Vessel Register under § 300.22(b)(4) of (ii) Operator permit fee. The Assistant this title in order to purse seine for Administrator may require a fee to be tuna in the ETP during a single fishing submitted with an application for an trip per calendar year of 90 days or operator permit. The level of such a fee less. Payment of the vessel assessment shall be determined in accordance with fee must be consistent with the fee for the NOAA Finance Handbook and spec- active status on the Vessel Register ified by the Administrator, West Coast under § 300.22(b)(4)(ii) of this title. Region, on the application form. (D) The owner or managing owner of (iii) Vessel assessment fee. The vessel a purse seine vessel listed as inactive assessment fee supports the placement on the Vessel Register at the beginning of observers on individual tuna purse of the calendar year and who requests seine vessels, and maintenance of the active status on the Vessel Register observer program, as established by the under § 300.22(b)(4) of this title during IATTC or other approved observer pro- the year, must pay the vessel assess- gram. ment fee associated with active status, (A) The owner or managing owner of less the vessel assessment fee associ- a purse seine vessel for which a DML ated with inactive status that was al- has been requested must submit the ready paid, before NMFS will request vessel assessment fee to the IATTC, no the IATTC Director change the status later than September 15 of the year of the vessel from inactive to active. prior to the calendar year for which Payment of the vessel assessment fee is the DML is requested. Payment of the required only if the vessel is required vessel assessment fee must be con- to carry an observer. sistent with the fee for active status on (E) The owner or managing owner of the Vessel Register under § 300.22(b)(4) a purse seine vessel not listed on the of this title. Vessel Register at the beginning of the (B) The owner or managing owner of calendar year and who requests to re- a purse seine vessel for which active or place a vessel removed from active sta- inactive status on the Vessel Register, tus on the Vessel Register under as defined in § 300.21 of this title, has § 300.22(b)(4) of this title during the been requested, but for which a DML year, must pay the vessel assessment has not been requested, must submit fee associated with active status only payment of the vessel assessment fee if the vessel is required to carry an ob- to the IATTC, no later than November server, before NMFS will request the 30 of the year prior to the calendar IATTC Director change the status of year in which the vessel will be listed the vessel to active. on the Vessel Register. Payment of the (F) Payments will be subject to a 10 vessel assessment fee is required only if percent surcharge if received under the vessel is listed as active and is re- paragraph (b)(6)(iii)(E) of this section quired to carry an observer, or if the for vessels that were listed as active on vessel is listed as inactive and exceeds the Vessel Register in the calendar 400 st (362.8 mt) in carrying capacity. year prior to the year for which active

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status was requested; or if received server program of NMFS, IATTC, or after the dates specified in paragraph another observer program approved by (b)(6)(iii)(A) or (B) of this section for the Administrator, West Coast Region. vessels for which active status is re- (iii) Explosives. The use of explosive quested if the vessel was listed as ac- devices is prohibited during all tuna tive during the year the request was purse seine operations that involve ma- made. Payments will not be subject to rine mammals. a 10 percent surcharge if received under (iv) Reporting requirements. (A) The paragraph (b)(6)(iii)(C) or (D) of this vessel permit holder of each permitted section, or if received under paragraph vessel must notify the Administrator, (b)(6)(iii)(E) of this section for vessels West Coast Region, or the IATTC con- that were not listed as active on the tact designated by the Administrator, Vessel Register in the calendar year West Coast Region, at least 5 days in prior to the year for which active sta- advance of the vessel’s departure on a tus was requested. Payments will also fishing trip to allow for observer place- not be subject to a 10 percent surcharge ment on every trip. If the vessel permit if received after the date specified in holder would like to use an IATTC and paragraph (b)(6)(iii)(B) of this section Western and Central Pacific Fisheries for vessels for which inactive status is Commission (WCPFC) cross-endorsed requested, or for vessels for which ac- observer when fishing in the IATTC tive status is requested if the vessel Convention Area, the notification must was not listed as active during the year also include a request for the place- the request was made. Payment of all ment of a cross-endorsed observer pur- vessel assessment fees described in this suant to the Memorandum of Coopera- section must be made to the IATTC. tion between the IATTC and WCPFC. (7) Application approval. The Adminis- (B) The vessel permit holder must no- trator, West Coast Region, will deter- tify the Administrator, West Coast Re- mine the adequacy and completeness of gion, or the IATTC contact designated an application and, upon determining by the Administrator, West Coast Re- that an application is adequate and complete, will approve that application gion, of any change of vessel operator and issue the appropriate permit, ex- at least 48 hours prior to departing on cept for applicants having unpaid or a fishing trip. In the case of a change overdue civil penalties, criminal fines, in operator due to an emergency, noti- or other liabilities incurred in a legal fication must be made within 72 hours proceeding. of the change. (8) Conditions applicable to all per- (v) Data release. By using a permit, mits—(i) General conditions. Failure to the permit holder authorizes the re- comply with the provisions of a permit lease to NMFS and the IATTC of all or with these regulations may lead to data collected by observers aboard suspension, revocation, modification, purse seine vessels during fishing trips or denial of a permit. The permit hold- under the IATTC observer program or er, vessel, vessel owner, operator, or another international observer pro- master may be subject, jointly or sev- gram approved by the Administrator, erally, to the penalties provided for West Coast Region. The permit holder under the MMPA. Procedures gov- must furnish the international ob- erning permit sanctions and denials are server program with all release forms found at subpart D of 15 CFR part 904. required to authorize the observer data (ii) Observer placement. By obtaining a to be provided to NMFS and the permit, the permit holder consents to IATTC. Data obtained under such re- the placement of an observer on the leases will be used for the same pur- vessel during every trip involving oper- poses as would data collected directly ations in the ETP and agrees to pay- by observers placed by NMFS and will ment of the fees for observer place- be subject to the same standards of ment. No observer will be assigned to a confidentiality. vessel unless that vessel owner has sub- (9) Mortality and serious injury reports. mitted payment of observer fees to the The Administrator, West Coast Region, Administrator, West Coast Region. The will provide to the public periodic sta- observers may be placed under an ob- tus reports summarizing the estimated

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incidental dolphin mortality and seri- bing not to exceed 11⁄4 inches (3.18 cen- ous injury by U.S. vessels of individual timeters (cm)) stretch mesh extending species and stocks. downward from the corkline and, if (c) Purse seining by vessels with Dol- present, the base of the dolphin apron phin Mortality Limits (DMLs). In addi- to a minimum depth equivalent to two tion to the terms and conditions set strips of 100 meshes of 41⁄4 inches (10.80 forth in paragraph (b) of this section, cm) stretch mesh webbing. In addition, any permit for a vessel to which a DML at least a 20–fathom length of corkline has been assigned under paragraph must be free from bunchlines at the (c)(9) of this section and any operator apex of the backdown channel. permit when used on such a vessel are (ii) Dolphin safety panel markers. Each subject to the following terms and con- end of the dolphin safety panel and dol- ditions: phin apron, if present, must be identi- (1) A vessel may be used to chase and fied with an easily distinguishable encircle schools of dolphins in the ETP marker. only under the immediate direction of (iii) Dolphin safety panel hand holds. the holder of a valid operator’s permit. Throughout the length of the corkline (2) No retention of live marine mam- under which the dolphin safety panel mals. Except as otherwise authorized and dolphin apron are located, hand by a specific permit, live marine mam- hold openings must be secured so that mals incidentally taken must be imme- they will not allow the insertion of a diately returned to the ocean without 13⁄8 inch (3.50 cm) diameter cylindrical- further injury. The operator of a purse shaped object. seine vessel must take every pre- (iv) Dolphin safety panel corkline caution to refrain from causing or per- hangings. Throughout the length of the mitting incidental mortality or serious corkline under which the dolphin safe- injury of marine mammals. Live ma- ty panel and dolphin apron if present, rine mammals may not be brailed, are located, corkline hangings must be sacked up, or hoisted onto the deck inspected by the vessel operator fol- during ortza retrieval. lowing each trip. Hangings found to (3) Gear and equipment required for valid permit. A vessel possessing a ves- have loosened to the extent that a cy- 3 sel permit for purse seining involving lindrical-shaped object with a 1 ⁄8 inch the intentional taking of marine mam- (3.50 cm) diameter can be inserted be- mals may not engage in fishing oper- tween the cork and corkline hangings, ations involving the intentional de- must be tightened so as not to allow ployment of the net on or encirclement the insertion of a cylindrical-shaped 3 of dolphins unless it is equipped with a object with a 1 ⁄8 inch (3.50 cm) diame- dolphin safety panel in its purse seine, ter. has the other required gear and equip- (v) Speedboats. A minimum of three ment, and uses the required proce- speedboats in operating condition must dures. be carried. All speedboats carried (i) Dolphin safety panel. The dolphin aboard purse seine vessels and in oper- safety panel must be a minimum of 180 ating condition must be rigged with fathoms in length (as measured before tow lines and towing bridles or towing installation), except that the minimum posts. Speedboat hoisting bridles may length of the panel in nets deeper than not be substituted for towing bridles. 18 strips must be determined in a ratio (vi) Raft. A raft suitable to be used as of 10 fathoms in length for each strip of a dolphin observation-and-rescue plat- net depth. It must be installed so as to form must be carried. protect the perimeter of the backdown (vii) Facemask and snorkel, or viewbox. area. The perimeter of the backdown At least two facemasks and snorkels or area is the length of corkline that be- viewboxes must be carried. gins at the outboard end of the last (viii) Lights. The vessel must be bowbunch pulled and continues to at equipped with long-range, high-inten- least two-thirds the distance from the sity floodlights with a sodium lamp of backdown channel apex to the stern at least 1000 watts, or a multivapour tiedown point. The dolphin safety lamp of at least 1500 watts, for use in panel must consist of small mesh web- darkness to ensure sufficient light to

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observe that procedures for dolphin re- satisfactory completion of training and lease are carried out and to monitor in- who possess a current or previous cal- cidental dolphin mortality. endar year permit will not be required (4) Vessel inspection—(i) Twice per to attend additional formal training year. At least twice during each cal- sessions unless there are substantial endar year, purse seine nets and other changes in the relevant provisions or gear and equipment required under implementing regulations of the § 216.24(c)(3) must be made available for MMPA or the IDCP, or in fishing gear inspection and for a trial set/net align- and techniques. Additional training ment by an authorized NMFS inspector may be required for any operator who or IATTC staff as specified by the Ad- is found by the Administrator, West ministrator, West Coast Region, in Coast Region, to lack proficiency in order to obtain a vessel permit. The the required fishing procedures or fa- first such inspection shall be carried miliarity with the relevant provisions out before the vessel’s request for a or regulations of the MMPA or the DML is submitted to the IATTC. The IDCP. second such inspection shall be carried (6) Marine mammal release require- out before notification of any realloca- ments. All operators fishing pursuant to tion of DMLs for vessels with full-year paragraph (c) of this section must use DMLs or during the last quarter of the the following procedures during all sets year for vessels with second-semester involving the incidental taking of ma- DMLs. rine mammals in association with the (ii) Reinspection. Purse seine nets and capture and landing of tuna. other gear and equipment required by (i) Backdown procedure. Backdown these regulations must be made avail- must be performed following a purse able for reinspection by an authorized seine set in which dolphins are cap- NMFS inspector or IATTC staff as tured in the course of catching tuna, specified by the Administrator, West and must be continued until it is no Coast Region. The vessel permit holder longer possible to remove live dolphins must notify the Administrator, West from the net by this procedure. At Coast Region, of any net modification least one crewmember must be de- at least 5 days prior to departure of the vessel in order to determine whether a ployed during backdown to aid in the reinspection or trial set/net alignment release of dolphins. Thereafter, other is required. release procedures required will be con- (iii) Failure to pass inspection. Upon tinued so that all live dolphins are re- failure to pass an inspection or rein- leased prior to the initiation of the spection, a vessel may not engage in sack-up procedure. purse seining involving the intentional (ii) Prohibited use of sharp or pointed taking of marine mammals until the instrument. The use of a sharp or point- deficiencies in gear or equipment are ed instrument to remove any marine corrected as required by NMFS. mammal from the net is prohibited. (5) Operator permit holder training re- (iii) Sundown sets prohibited. On every quirements. An operator must maintain set encircling dolphin, the backdown proficiency sufficient to perform the procedure must be completed no later procedures required herein, and must than one-half hour after sundown, ex- attend and satisfactorily complete a cept as provided here. For the purpose formal training session approved by of this section, sundown is defined as the Administrator, West Coast Region, the time at which the upper edge of the in order to obtain his or her permit. At sun disappears below the horizon or, if the training session, an attendee will the view of the sun is obscured, the be instructed on the relevant provi- local time of sunset calculated from ta- sions and regulatory requirements of bles developed by the U.S. Naval Ob- the MMPA and the IDCP, and the fish- servatory or other authoritative source ing gear and techniques that are re- approved by the Administrator, West quired for reducing serious injury and Coast Region. A sundown set is a set in mortality of dolphin incidental to which the backdown procedure has not purse seining for tuna. Operators who been completed and rolling the net to have received a written certificate of sack-up has not begun within one-half

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hour after sundown. Should a set ex- such an exemption is necessary to con- tend beyond one-half hour after sun- duct the experiment; down, the operator must use the re- (C) A description of how the proposed quired marine mammal release proce- modification to the gear and equip- dures including the use of the high in- ment or procedures is expected to re- tensity lighting system. In the event a duce incidental mortality or serious in- sundown set occurs where the seine jury of marine mammals; skiff was let go 90 or more minutes be- (D) A description of the applicability fore sundown, and an earnest effort to of this modification to other purse rescue dolphins is made, the Inter- seine vessels; national Review Panel of the IDCP (E) The planned design, time, dura- may recommend to the United States tion, and general area of the experi- that in the view of the International mental operation; Review Panel, prosecution by the (F) The name(s) of the permitted op- United States is not recommended. erator(s) of the vessel(s) during the ex- Any such recommendation will be con- periment; sidered by the United States in evalu- (G) A statement of the qualifications ating the appropriateness of prosecu- of the individual or company doing the tion in a particular circumstance. analysis of the research; and (iv) Dolphin safety panel. During backdown, the dolphin safety panel (H) Signature of the permitted oper- must be positioned so that it protects ator or of the operator’s representa- the perimeter of the backdown area. tive. The perimeter of the backdown area is (ii) The Administrator, West Coast the length of corkline that begins at Region, will acknowledge receipt of the the outboard end of the last bow bunch application and, upon determining that pulled and continues to at least two- it is complete, will publish a notice in thirds the distance from the backdown the FEDERAL REGISTER summarizing channel apex to the stern tiedown the application, making the full appli- point. cation available for inspection and in- (7) Experimental fishing operations. viting comments for a minimum period The Administrator, West Coast Region, of 30 days from the date of publication. may authorize experimental fishing op- (iii) The Administrator, West Coast erations, consistent with the provi- Region, after considering the informa- sions of the IDCP, for the purpose of tion submitted in the application iden- testing proposed improvements in fish- tified in paragraph (c)(7)(i) of this sec- ing techniques and equipment that tion and the comments received, will may reduce or eliminate dolphin mor- either issue a waiver to conduct the ex- tality or serious injury, or do not re- periment that includes restrictions or quire the encirclement of dolphins in conditions deemed appropriate, or deny the course of fishing operations. The the application, giving the reasons for Administrator, West Coast Region, denial. may waive, as appropriate, any re- (iv) A waiver for an experimental quirements of this section except fishing operation will be valid only for DMLs and the obligation to carry an the vessels and operators named in the observer. permit, for the time period and areas (i) A vessel permit holder may apply specified, for trips carrying an observer for an experimental fishing operation designated by the Administrator, West waiver by submitting the following in- Coast Region, and when all the terms formation to the Administrator, West and conditions of the permit are met. Coast Region, no less than 90 days be- (v) The Administrator, West Coast fore the date the proposed operation is Region, may suspend or revoke an ex- intended to begin: perimental fishing waiver in accord- (A) The name(s) of the vessel(s) and ance with 15 CFR part 904 if the terms the vessel permit holder(s) to partici- and conditions of the waiver or the pro- pate; visions of the regulations are not fol- (B) A statement of the specific vessel lowed. gear and equipment or procedural re- (8) Operator permit holder performance quirement to be exempted and why requirements. [Reserved]

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(9) Vessel permit holder dolphin mor- January 1, and the Administrator, tality limits. For purposes of this para- West Coast Region, will notify the Di- graph, the term ‘‘vessel permit holder’’ rector of the IATTC of any adjust- includes both the holder of a current ments prior to a vessel departing on a vessel permit and also the holder of a trip using its adjusted DML. The noti- vessel permit for the following year. fication will be no later than February (i) By September 1 each year, a vessel 1 in the case of adjustments to full- permit holder desiring a DML for the year DMLs, and no later than May 1 in following year must provide to the Ad- the case of adjustments to DMLs for ministrator, West Coast Region, the the second half of the year. name of the U.S. purse seine fishing (C) In accordance with the require- vessel(s) of carrying capacity greater ments of Annex IV of the Agreement than 400 st (362.8 mt) that the owner in- on the IDCP, the Administrator, West tends to use to intentionally deploy Coast Region, may adjust a vessel’s purse seine fishing nets in the ETP to DML if it will further scientific or encircle dolphins in an effort to cap- technological advancement in the pro- ture tuna during the following year. tection of marine mammals in the fish- NMFS will forward the list of purse ery or if the past performance of the seine vessels to the Director of the vessel indicates that the protection or IATTC on or before October 1, or as use of the yellowfin tuna stocks or ma- otherwise required by the IDCP, for as- rine mammals is best served by the ad- signment of a DML for the following justment, within the mandates of the year under the provisions of Annex IV MMPA. Experimental fishing operation of the Agreement on the IDCP. waivers or scientific research permits (ii) Each vessel permit holder that will be considered a basis for adjust- desires a DML only for the period be- ments. tween July 1 to December 31 must pro- (iv)(A) A vessel assigned a full-year vide the Administrator, West Coast Re- DML that does not make a set on dol- gion, by September 1 of the prior year, phins by April 1 or that leaves the fish- the name of the U.S. purse seine fishery will lose its DML for the remainder ing vessel(s) of greater than 400 st (362.8 of the year, unless the failure to set on mt) carrying capacity that the owner dolphins is due to force majeure or intends to use to intentionally deploy other extraordinary circumstances as purse seine fishing nets in the ETP to determined by the International Re- encircle dolphins in an effort to cap- view Panel. ture tuna during the period. NMFS will forward the list of purse seine vessels (B) A vessel assigned a DML for the to the Director of the IATTC on or be- second half of the year will be consid- fore October 1, or as otherwise required ered to have lost its DML if the vessel under the IDCP, for possible assign- has not made a set on dolphins before ment of a DML for the 6–month period December 31, unless the failure to set July 1 to December 31. Under the IDCP, on dolphins is due to force majeure or the DML will be calculated by the extraordinary circumstances as deter- IDCP from any unutilized pool of DMLs mined by the International Review in accordance with the procedure de- Panel. scribed in Annex IV of the Agreement (C) Any vessel that loses its DML for on the IDCP and will not exceed one- 2 consecutive years will not be eligible half of an unadjusted full-year DML as to receive a DML for the following calculated by the IDCP. year. (iii)(A) The Administrator, West (D) NMFS will determine, based on Coast Region, will notify vessel owners available information, whether a vessel of the DML assigned for each vessel for has left the fishery. the following year, or the second half (1) A vessel lost at sea, undergoing of the year, as applicable. extensive repairs, operating in an (B) The Administrator, West Coast ocean area other than the ETP, or for Region, may adjust the DMLs in ac- which other information indicates that cordance with Annex IV of the Agree- vessel will no longer be conducting ment on the IDCP. All adjustments of purse seine operations in the ETP for full-year DMLs will be made before the remainder of the period covered by

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the DML will be determined to have phins containing individuals of a par- left the fishery. ticular stock of dolphins for the re- (2) NMFS will make all reasonable ef- mainder of the calendar year: forts to determine the intentions of the (A) after the applicable per-stock vessel owner. The owner of any vessel per-year dolphin mortality limit for that has been preliminarily determined that stock of dolphins (or for that ves- to have left the fishery will be provided sel, if so assigned) has been reached or notice of such preliminary determina- exceeded; or tion and given the opportunity to pro- (B) after the time and date provided vide information on whether the vessel in actual notification or notification in has left the fishery prior to NMFS the FEDERAL REGISTER by the Adminis- making a final determination under 15 trator, West Coast Region, based upon CFR part 904 and notifying the IATTC. the best available evidence, stating (v) Any vessel that exceeds its as- when any applicable per-stock per-year signed DML after any applicable ad- dolphin mortality limit has been justment under paragraph (c)(9)(iii) of reached or exceeded, or is expected to this section will have its DML for the be reached in the near future. subsequent year reduced by 150 percent (ix) If individual dolphins belonging of the overage, unless another adjust- to a stock that is prohibited from being ment is determined by the Inter- taken are not reasonably observable at national Review Panel, as mandated by the time the net skiff attached to the the Agreement on the IDCP. net is released from the vessel at the (vi) A vessel that is covered by a start of a set, the fact that individuals valid vessel permit and that does not of that stock are subsequently taken normally fish for tuna in the ETP but will not be cause for enforcement ac- desires to participate in the fishery on tion provided that all procedures re- a limited basis may apply for a per-trip quired by the applicable regulations DML from the Administrator, West have been followed. Coast Region, at any time, allowing at (x) Vessel and operator permit hold- least 60 days for processing. The re- ers must not intentionally deploy a quest must state the expected number purse seine net on or encircle dolphins of trips involving sets on dolphins and intentionally: the anticipated dates of the trip or (A) after a set in which the vessel’s trips. The request will be forwarded to DML, as adjusted, has been reached or the Secretariat of the IATTC for proc- exceeded; or essing in accordance with Annex IV of (B) after the date and time provided the Agreement on the IDCP. A per-trip in actual notification by letter, fac- DML will be assigned if one is made simile, radio, or electronic mail, or no- available in accordance with the terms tice in the FEDERAL REGISTER by the of Annex IV of the Agreement on the Administrator, West Coast Region, IDCP. If a vessel assigned a per-trip based upon the best available evidence, DML does not set on dolphins during that intentional sets on dolphins must that trip, the vessel will be considered cease because the total of the DMLs as- to have lost its DML unless this was a signed to the U.S. fleet has been result of force majeure or other ex- reached or exceeded, or is expected to traordinary circumstances as deter- be exceeded in the near future. mined by the International Review (d) Purse seining by vessels without as- Panel. After two consecutive losses of a signed DMLs. In addition to the re- DML, a vessel will not be eligible to requirements of paragraph (b) of this sec- ceive a DML for the next fishing year. tion, a vessel permit used for a trip not (vii) Observers will make their involving an assigned DML and the op- records available to the vessel operator erator’s permit when used on such a at any reasonable time, including after vessel are subject to the following each set, in order for the operator to terms and conditions: a permit holder monitor the balance of the DML(s) re- may take marine mammals provided maining for use. that such taking is an accidental oc- (viii) Vessel and operator permit currence in the course of normal com- holders must not deploy a purse seine mercial fishing operations and the ves- net on or encircle any school of dol- sel does not intentionally deploy its

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net on, or to encircle, dolphins; marine essing, until released by the observer mammals taken incidental to such for return to the ocean. Whole marine commercial fishing operations must be mammals or marine mammal parts immediately returned to the environ- designated as biological specimens by ment where captured without further the observer must be retained in cold injury, using release procedures such storage aboard the vessel until re- as hand rescue, or aborting the set at trieved by authorized personnel of the earliest effective opportunity; and NMFS or the IATTC when the vessel the use of one or more rafts and returns to port for unloading. facemasks or viewboxes to aid in the (4) It is unlawful for any person to rescue of dolphins is recommended. forcibly assault, impede, intimidate, (e) Observers—(1) The holder of a ves- interfere with, or to influence or at- sel permit must allow an observer duly tempt to influence an observer, or to authorized by the Administrator, West harass (including sexual harassment) Coast Region, to accompany the vessel an observer by conduct that has the on all fishing trips in the ETP for the purpose or effect of unreasonably inter- purpose of conducting research and ob- fering with the observer’s work per- serving operations, including col- formance, or that creates an intimi- lecting information that may be used dating, hostile, or offensive environ- in civil or criminal penalty pro- ment. In determining whether conduct ceedings, forfeiture actions, or permit constitutes harassment, the totality of sanctions. A vessel that fails to carry the circumstances, including the na- an observer in accordance with these ture of the conduct and the context in requirements may not engage in fish- which it occurred, will be considered. ing operations. The determination of the legality of a (2) Research and observation duties particular action will be made from the will be carried out in such a manner as facts on a case-by-case basis. to minimize interference with commer- (i) Requirements for owners and oper- cial fishing operations. Observers must ators of U.S. purse seine vessels for re- be provided access to vessel personnel porting and actions in response to ob- and to dolphin safety gear and equip- server safety are at § 300.29 of this title. ment, electronic navigation equipment, radar displays, high powered bin- (ii) [Reserved] oculars, and electronic communication (5)(i) All observers must be provided equipment. The navigator must provide sleeping, toilet and eating accommoda- true vessel locations by latitude and tions at least equal to that provided to longitude, accurate to the nearest a full crew member. A mattress or minute, upon request by the observer. futon on the floor or a cot is not ac- Observers must be provided with ade- ceptable in place of a regular bunk. quate space on the bridge or pilothouse Meal and other galley privileges must for clerical work, as well as space on be the same for the observer as for deck adequate for carrying out ob- other crew members. server duties. No vessel owner, master, (ii) Female observers on a vessel with operator, or crew member of a per- an all-male crew must be accommo- mitted vessel may impair, or in any dated either in a single-person cabin way interfere with, the research or ob- or, if reasonable privacy can be ensured servations being carried out. Masters by installing a curtain or other tem- must allow observers to use vessel porary divider, in a two-person cabin communication equipment necessary shared with a licensed officer of the to report information concerning the vessel. If the cabin assigned to a female take of marine mammals and other ob- observer does not have its own toilet server collected data upon request of and shower facilities that can be pro- the observer. vided for the exclusive use of the ob- (3) Any marine mammals killed dur- server, then a schedule for time-sharing fishing operations that are acces- ing common facilities must be estab- sible to crewmen and requested from lished before the placement meeting the permit holder or master by the ob- and approved by NMFS or other ap- server must be brought aboard the ves- proved observer program and must be sel and retained for biological proc- followed during the entire trip.

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(iii) In the event there are one or of the United States (HTS) numbers. more female crew members, the female Updated HTS numbers can be identified observer must be provided a bunk in a by referencing the most current HTS in cabin shared solely with female crew effect at the time of importation, members, and provided toilet and available at www.usitc.gov. The scope of shower facilities shared solely with yellowfin tuna embargoes and proce- these female crew members. dures for attaining an affirmative find- (f) Importation, purchase, shipment, ing are described under paragraphs sale and transport. (1)(i) It is illegal to (f)(6) and (f)(8) of this section, respec- import into the United States any fish, tively. whether fresh, frozen, or otherwise pre- (A) Frozen: (products containing Yel- pared, if the fish have been caught with lowfin). commercial fishing technology that re- 0303.42.0020 Yellowfin tunas, whole, frozen sults in the incidental kill or inci- 0303.42.0040 Yellowfin tunas, head-on, fro- dental serious injury of marine mam- zen, except whole mals in excess of that allowed under 0303.42.0060 Yellowfin tunas, other, frozen, this part for U.S. fishermen, or as spec- except whole, head-on, fillets, livers and ified at paragraph (f)(6) of this section. roes (ii) For purposes of this paragraph (f), 0304.87.0000 Tuna fish fillets, frozen, not and in applying the definition of an elsewhere specified or indicated (NESOI) ‘‘intermediary nation,’’ an import oc- 0304.99.1190 Tuna, frozen, in bulk or in im- curs when the fish or fish product is re- mediate containers weighing with their leased from a nation’s Customs’ cus- contents over 6.8 kg each tody and enters into the commerce of (B) Airtight Containers: (products containing Yellowfin). 1604.14.1010 ...... Tunas and skipjack, in oil, in airtight the nation. For other purposes, ‘‘im- containers, in foil or other flexible port’’ is defined in § 216.3. containers weighing with their con- (2) Imports requiring a Fisheries Certifi- tents not more than 6.8 kg each 1604.14.1099 ...... Tunas and skipjack, in oil, in airtight cate of Origin and an International Fish- containers, NESOI eries Trade Permit. Shipments of tuna, 1604.14.2291 ...... Other tunas and skipjack, no oil, in tuna products, and certain other fish foil/flexible airtight containers, not products identified in paragraphs over 6.8 kg, 4.8% of U.S. consumption of canned tuna during (f)(2)(i) through (iii) of this section preceding year may not be imported into the United 1604.14.2299 ...... Tunas, NESOI and skipjack, not in States unless: a scanned copy of a prop- oil, in other airtight containers not erly completed Fisheries Certificate of over 7 kg, 4.8% of U.S. consumption of canned tuna during pre- Origin (FCO), NOAA Form 370, associ- ceding year ated certifications and statements de- 1604.14.3091 ...... Tunas and skipjack, NESOI, not in scribed in § 216.91(a), and required data oil, in foil or other flexible airtight containers, weighing with their set are filed electronically with U.S. contents not more than 6.8 kg Customs and Border Protection (CBP) each at the time of, or in advance of, impor- 1604.14.3099 ...... Other tunas and skipjack, not in oil, tation as required under § 300.323; and in airtight containers, NESOI (C) Loins: (products containing Yellowfin). the importer of record designated on 1604.14.4000 ...... Tunas and skipjacks, prepared or the entry summary (Customs Form preserved, not in airtight con- 7501) holds a valid International Fish- tainers, not in oil, in bulk or imme- eries Trade Permit as specified at diate containers with their contents over 6.8 kg each § 300.322 of this title. ‘‘Required data 1604.14.5000 ...... Tunas and skipjack, prepared or pre- set’’ has the same meaning as § 300.321 served, not in airtight containers, of this title (see definition of ‘‘Docu- NESOI mentation and data sets required’’). (D) Other: (products containing Yel- (i) Imports requiring a Fisheries Certifi- lowfin). cate of Origin, subject to yellowfin tuna embargo. All shipments containing yel- 0511.91.0090 Fish, shellfish products unfit for lowfin tuna or yellowfin tuna products human consumption 1604.20.1000 Fish pastes (other than fresh tuna) imported into 1604.20.1500 Fish balls, cakes and puddings, the United States must be accom- in oil panied by an FCO, including, but not 1604.20.2000 Fish balls, cakes and puddings, limited to, those imported under the not in oil, less than 6.8 kg, in airtight following Harmonized Tariff Schedule containers

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1604.20.2500 Fish balls, cakes and puddings, 1604.14.2291 ...... Other tunas and skipjack, no oil, in not in oil, not in airtight containers, in foil/flexible airtight containers, not immediate containers weighing with over 6.8 kg, 4.8% of U.S. con- their contents not over 6.8 kg each sumption of canned tuna during preceding year 1604.20.3000 Fish balls, cakes and puddings, 1604.14.2299 ...... Tunas, NESOI and skipjack, not in NESOI oil, in other airtight containers, not 1604.20.4000 Fish sticks, not cooked, nor in over 7 kg, 4.8% of U.S. consump- oil tion of canned tuna during pre- 1604.20.5010 Fish sticks, cooked and frozen ceding year 1604.20.5090 Fish sticks, NESOI 1604.14.3051 ...... Tuna, albacore not in oil, in foil or other flexible airtight containers, 2309.10.0010 Dog or cat food, in airtight con- weighing with contents not more tainers than 6.8 kg each, NESOI 1604.14.3059 ...... Tuna, albacore not in oil, in airtight (ii) Imports requiring a Fisheries Cer- containers, NESOI tificate of Origin, not subject to yellowfin 1604.14.3091 ...... Tunas and skipjack, NESOI, not in tuna embargo. All shipments containing oil, in foil or other flexible airtight tuna or tuna products (other than fresh containers, weighing with their contents not more than 6.8 kg tuna or yellowfin tuna identified in each paragraph (f)(2)(i) of this section) im- 1604.14.3099 ...... Other tunas and skipjack, not in oil, ported into the United States must be in airtight containers, NESOI (C) Loins: (other than Yellowfin). accompanied by an FCO, including, but 1604.14.4000 ...... Tunas and skipjacks, prepared or not limited to, those imported under preserved, not in airtight con- the following HTS numbers. Updated tainers, not in oil, in bulk or imme- HTS numbers can be identified by ref- diate containers with their contents over 6.8 kg each erencing the most current HTS in ef- 1604.14.5000 ...... Tunas and skipjack, prepared or pre- fect at the time of importation, avail- served, not in airtight containers, able at www.usitc.gov. NESOI (A) Frozen: (other than Yellowfin). (D) Other: (only if the product con- 0303.41.0000 Albacore or longfinned tunas, tains tuna). frozen, except fillets, livers and roes 0511.91.0090 Fish, shellfish products unfit for 0303.43.0000 Skipjack tunas or stripe-bellied human consumption bonito, frozen, except fillets, livers and 1604.20.1000 Fish pastes roes 1604.20.1500 Fish balls, cakes and puddings, 0303.44.0000 Bigeye tunas, frozen, except fil- in oil lets, livers and roes 1604.20.2000 Fish balls, cakes and puddings, 0303.45.0110 Atlantic Bluefin, frozen, except not in oil, less than 6.8 kg, in airtight fillets, livers and roes containers 0303.45.0150 Pacific Bluefin, frozen, except 1604.20.2500 Fish balls, cakes and puddings, fillets, livers and roes not in oil, not in airtight containers, in 0303.46.0000 Southern bluefin tunas, frozen, immediate containers weighing with except fillets, livers and roes their contents not over 6.8 kg each 0303.49.0200 Tunas, frozen, except fillets, liv- 1604.20.3000 Fish balls, cakes and puddings, ers and roes, NESOI NESOI 0304.87.0000 Tuna fish fillets, frozen, NESOI 1604.20.4000 Fish sticks, not cooked, nor in 0304.99.1190 Tuna, frozen, in bulk or in im- oil mediate containers weighing with their 1604.20.5010 Fish sticks, cooked and frozen contents over 6.8 kg each, NESOI 1604.20.5090 Fish sticks, NESOI (B) Airtight Containers: (other than Yellowfin). 2309.10.0010 Dog or cat food, in airtight con- 1604.14.1010 ...... Tunas and skipjack, in oil, in airtight tainers containers, in foil or other flexible containers weighing with their con- (iii) Exports from driftnet nations only, tents not more than 6.8 kg each requiring a Fisheries Certificate of Origin 1604.14.1091 ...... Tunas, albacore, in oil, in airtight and official certification. The following containers, NESOI 1604.14.1099 ...... Tunas and skipjack, in oil, in airtight HTS numbers identify categories of containers, NESOI fish and shellfish, in addition to those 1604.14.2251 ...... Albacore tuna, not in oil, in foil/flexi- identified in paragraphs (f)(2)(i) and ble airtight containers, weighing (f)(2)(ii) of this section, known to have not over 6.8 kg, 4.8% of U.S. consumption of canned tuna during been harvested using a large-scale preceding year driftnet and imported into the United 1604.14.2259 ...... Albacore tuna, not in oil, in airtight States. Shipments exported from a containers weighing not over 7 kg, large-scale driftnet nation, as identi- NESOI, 4.8% of U.S. consumption of canned tuna during preceding fied under paragraph (f)(7) of this sec- year tion, and imported into the United 36

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States, including but not limited to 1604.11.2020 Pink (humpie) salmon, whole or those imported into the United States in pieces, but not minced, in oil, in air- under any of the HTS numbers listed in tight containers paragraph (f)(2) of this section, must be 1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced, in oil, in air- accompanied by an FCO and the offi- tight containers cial statement described in paragraph 1604.11.2090 Salmon NESOI, whole or in (f)(4)(xiii) of this section. pieces, but not minced, in oil, in airtight (A) Frozen: containers 1604.11.4010 Chum (dog) salmon, not in oil, 0303.11.0000 Sockeye (red) salmon canned (Oncorhynchus nerka), frozen, except fil- 1604.11.4020 Pink (humpie) salmon, not in lets, livers and roes oil, canned 0303.12.0012 Chinook (King) salmon 1604.11.4030 Sockeye (red) salmon, not in oil, (Oncorhynchus tschawytscha), frozen, ex- canned cept fillets, livers and roes 1604.11.4040 Salmon, NESOI, not in oil, 0303.12.0022 Chum (dog) salmon canned (Oncorhynchus keta), frozen, except fil- 1604.11.4050 Salmon, whole or in pieces, but lets, livers and roes not minced, NESOI 0303.12.0032 Pink (humpie) salmon 1604.19.2100 Fish, NESOI, not in oil, in air- (Oncorhynchus gorbuscha), frozen, except tight containers fillets, livers and roes 1604.19.3100 Fish, NESOI, in oil, in airtight 0303.12.0052 Coho (silver) salmon containers (Oncorhynchus kisutch), frozen, except fil- 1605.54.6020 Squid, Loligo, prepared or pre- lets, livers and roes served 0303.12.0062 Pacific salmon (Oncorhynchus 1605.54.6030 Squid, except Loligo, prepared or masou, Oncorhynchus rhodurus), frozen, preserved except fillets, livers and roes, NESOI 0303.13.0000 Atlantic salmon (Salmo salar) (C) Other: and Danube salmon (Hucho hucho), fro- 0305.39.6080 Fish fillets, dried, salted or in zen, except fillets, livers and roes brine, but not smoked, NESOI 0303.14.0000 Trout (Salmo trutta; 0305.41.0000 Pacific salmon (Oncorhynchus Oncorhynchus mykiss, clarki, aguabonita, spp.), Atlantic salmon (Salmo salar), and gilae, apache, and chrysogaster), frozen, Danube salmon (Hucho hucho), including except fillets, livers and roes fillets, smoked 0303.19.0100 Salmonidae, frozen, except fil- 0305.49.4041 Fish including fillets, smoked, lets, livers and roes, NESOI NESOI 0303.57.0010 Swordfish steaks, frozen, except 0305.59.0000 Fish, dried, whether or not salt- fillets ed but not smoked, NESOI 0303.57.0090 Swordfish, frozen, except steaks, 0305.69.4000 Salmon, salted but not dried or fillets, livers and roes smoked; in brine 0303.81.0010 Dogfish (Squalus spp.), frozen, 0305.69.5001 Fish in immediate containers except fillets, livers and roes weighing with their contents 6.8 kg or 0303.81.0090 Sharks, frozen, except dogfish, less each, salted but not dried or smoked; fillets, livers and roes in brine, NESOI 0303.89.0079 Fish, other, frozen, except fil- 0305.69.6001 Fish, salted but not dried or lets, livers and roes, NESOI smoked; in brine, NESOI 0304.81.5010 Atlantic Salmonidae (Salmo 0305.71.0000 Shark fins, dried, whether or salar) fillets, frozen, NESOI not salted but not smoked 0304.81.5090 Salmonidae fillets, frozen, ex- 0305.49.0010 Squid, frozen, fillets cept Atlantic salmon, NESOI 0307.49.0022 Squid, Loligo opalescens, frozen 0304.89.1090 Fish fillets, skinned, frozen (except fillets), dried, salted or in brine blocks weighing over 4.5 kg each, to be 0307.49.0024 Squid, Loligo pealei, frozen (ex- minced, ground or cut into pieces of uni- cept fillets), dried, salted or in brine form weights and dimensions, NESOI 0307.49.0029 Squid, Loligo, frozen (except fil- 0304.91.1000 Swordfish, frozen, in bulk or in lets), dried, salted or in brine, NESOI immediate containers weighing over 6.8 0307.49.0050 Squid, other, frozen (except fil- kg each lets), dried, salted or in brine, except Lo- 0304.91.9000 Swordfish, frozen, NESOI ligo squid 0304.99.9191 Fish fillets, ocean, frozen, 0307.49.0060 Cuttle fish (Sepia officinalis, NESOI Rossia macrosoma, Sepiola spp.), frozen, 0307.49.0010 Squid fillets, frozen dried, salted or in brine 0307.49.0022 Squid, Loligo opalescens, NESOI 0307.49.0024 Squid, Loligo pealei, NESOI (3) Disposition of Fisheries Certificates 0307.49.0029 Squid, Loligo, other, NESOI of Origin. The FCO described in para- 0307.49.0050 Squid, other, NESOI graph (f)(4) of this section may be ob- (B) Canned: tained from the Administrator, West

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Coast Region, or downloaded from the (ix) Country under whose laws the internet at https:// harvesting vessel operated based upon www.fisheries.noaa.gov/national/marine- the flag of the vessel or, if a certified mammal-protection/noaa-form-370-fish- charter vessel, the country that ac- eries-certificate-origin. cepted responsibility for the vessel’s (i) A properly completed FCO, and its fishing operations; attached certifications and statements (x) Dates on which the fishing trip as described in § 216.91(a), must accom- began and ended; pany the required CBP entry docu- (xi) The name of the harvesting ves- ments that are filed at the time of, or sel; in advance of, importation. (xii) Dolphin-safe condition of the (ii) FCOs and associated certifi- shipment, described by checking the cations and statements as described in appropriate statement on the form and § 216.91(a) must be provided electroni- attaching additional certifications as cally to CBP as indicated in paragraph described in § 216.91(a) if required; (f)(2) of this section. (xiii) For shipments containing fish (iii) FCOs that accompany imported or fish products exported from, or har- shipments of tuna destined for further vested on the high seas by vessels of a processing in the United States must nation known to use large-scale be endorsed at each change in owner- driftnets, as determined by the Sec- ship and submitted to the Adminis- retary pursuant to paragraph (f)(7) of trator, West Coast Region, by the last this section, the High Seas Driftnet endorser when all required endorse- Certification contained on the FCO ments are completed. Such FCOs must must be dated and signed by a respon- be submitted as specified in sible government official of the large- § 216.93(d)(2). scale driftnet nation, certifying that (iv) Importers and exporters are re- the fish or fish products were harvested quired to retain their records, includ- by a method other than large-scale ing FCOs, import or export documents, driftnet; and invoices, and bills of lading for 2 years, (xiv) Each importer, exporter, or and such records must be made avail- processor who takes custody of the able within 30 days of a request by the shipment must sign and date the form Secretary or the Administrator, West to certify that the form and attached Coast Region. documentation accurately describes (4) Contents of Fisheries Certificate of the shipment of fish that they accom- Origin. An FCO, certified to be accurate pany. by the exporter(s) of the accompanying (5) Dolphin-safe label. Tuna or tuna shipment, must include the following products sold in or exported from the information: United States that include on the label (i) CBP entry identification; the term ‘‘dolphin-safe’’ or any other (ii) Date of entry; term or symbol that claims or suggests (iii) Exporter’s full name and com- the tuna were harvested in a manner plete address; not injurious to dolphins are subject to (iv) Importer’s or consignee’s full the requirements of subpart H of this name and complete address; part (§ 216.90 et seq.). (v) Species description, product form, (6) Scope of embargoes—(i) ETP yel- and HTS number; lowfin tuna embargo. Yellowfin tuna or (vi) Total net weight of the shipment products of yellowfin tuna harvested in kilograms; using a purse seine in the ETP identi- (vii) Ocean area where the fish were fied by an HTS number listed in para- harvested (ETP, western Pacific Ocean, graph (f)(2)(i) of this section may not south Pacific Ocean, north Pacific be imported into the United States if Ocean, eastern Atlantic Ocean, western such tuna or tuna products were: Atlantic Ocean, Caribbean Sea, Indian (A) Harvested on or after March 3, Ocean, or other); 1999, the effective date of section 4 of (viii) Type of fishing gear used to the IDCPA, and harvested by, or ex- harvest the fish (purse seine, longline, ported from, a nation that the Assist- baitboat, large-scale driftnet, gillnet, ant Administrator has determined has pole and line/hook and line, or other); jurisdiction over purse seine vessels of

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greater than 400 st (362.8 mt) carrying nation may certify to the Assistant capacity harvesting tuna in the ETP, Administrator that none of the na- unless the Assistant Administrator has tion’s vessels use large-scale driftnets. made an affirmative finding required Upon receipt of the certification, the for importation for that nation under Assistant Administrator may find, and paragraph (f)(8) of this section; publish such finding in the FEDERAL (B) Exported from an intermediary REGISTER, that none of that nation’s nation, as defined in Section 3 of the vessels engage in fishing with large- MMPA, and a ban is currently in force scale driftnets. prohibiting the importation from that (8) Affirmative finding procedure for nation under paragraph (f)(9) of this nations harvesting yellowfin tuna using a section; or purse seine in the ETP. (i) The Assistant (C) Harvested before March 3, 1999, Administrator will determine, on an the effective date of Section 4 of the annual basis, whether to make an af- IDCPA, and would have been banned firmative finding based upon documen- from importation under Section tary evidence provided by the govern- 101(a)(2) of the MMPA at the time of ment of the harvesting nation or by harvest. the IDCP and the IATTC, and will pub- (ii) Driftnet embargo. A shipment con- lish the finding in the FEDERAL REG- taining fish or fish products identified ISTER. A finding will remain valid for 1 by an HTS number listed in paragraph year or for such other period as the As- (f)(2) of this section may not be im- sistant Administrator may determine. ported into the United States if it is An affirmative finding will be termi- harvested by a large-scale driftnet, or nated if the Assistant Administrator if it is exported from or harvested on determines that the requirements of the high seas by any nation determined this paragraph are no longer being met. by the Assistant Administrator to be Every 5 years, the government of the engaged in large-scale driftnet fishing, harvesting nation must submit such unless a government official of the documentary evidence directly to the large-scale driftnet nation completes, Assistant Administrator and request signs and dates the High Seas Driftnet an affirmative finding. Documentary section of the FCO certifying that the evidence must be submitted by the har- fish or fish products were harvested by a method other than large-scale vesting nation for the first affirmative driftnet. finding application. The Assistant Ad- (iii) Pelly certification. After 6 months ministrator may require the submis- of an embargo being in place against a sion of supporting documentation or nation under this section, the Sec- other verification of statements made retary will certify that nation under in connection with requests to allow section 8(a) of the Fishermen’s Protec- importations. An affirmative finding tive Act (22 U.S.C. 1978(a)). When such applies to yellowfin tuna and yellowfin an embargo is lifted, the Secretary will tuna products that were harvested by terminate the certification under Sec- vessels of the nation after March 3, tion 8(d) of that Act (22 U.S.C. 1978(d)). 1999. To make an affirmative finding, (iv) Coordination. The Assistant Ad- the Assistant Administrator must find ministrator will promptly advise the that: Department of State and the Depart- (A) The harvesting nation partici- ment of Homeland Security of embargo pates in the IDCP and is either a mem- decisions, actions, and finding deter- ber of the IATTC or has initiated (and minations. within 6 months thereafter completed) (7) Large-scale driftnet nation: deter- all steps required of applicant nations, mination. Based upon the best informa- in accordance with article V, para- tion available, the Assistant Adminis- graph 3, of the Convention establishing trator will determine which nations the IATTC, to become a member of have registered vessels that engage in that organization; fishing using large-scale driftnets. (B) The nation is meeting its obliga- Such determinations will be published tions under the IDCP and its obliga- in the FEDERAL REGISTER. A respon- tions of membership in the IATTC, in- sible government official of any such cluding all financial obligations;

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(C)(1) The annual total dolphin mor- had been exceeded, the nation required tality of the nation’s purse seine fleet all its vessels to cease fishing for tuna (including certified charter vessels op- in association with the stocks whose erating under its jurisdiction) did not limits had been exceeded, for the re- exceed the aggregated total of the mor- mainder of the calendar year. tality limits assigned by the IDCP for (ii) Documentary Evidence and Compli- that nation’s purse seine vessels for the ance with the IDCP—(A) Documentary year preceding the year in which the Evidence. The Assistant Administrator finding would start; or will make an affirmative finding under (2)(i) Because of extraordinary cir- paragraph (f)(8)(i) of this section only cumstances beyond the control of the if the government of the harvesting na- nation and the vessel captains, the tion provides directly to the Assistant total dolphin mortality of the nation’s Administrator, or authorizes the purse seine fleet (including certified IATTC to release to the Assistant Ad- charter vessels operating under its ju- ministrator, complete, accurate, and risdiction) exceeded the aggregated timely information that enables the total of the mortality limits assigned Assistant Administrator to determine by the IDCP for that nation’s purse whether the harvesting nation is meet- seine vessels; and ing the obligations of the IDCP, and (ii) Immediately after the national whether ETP-harvested tuna imported authorities discovered the aggregate from such nation comports with the mortality of its fleet had been exceed- tracking and verification regulations ed, the nation required all its vessels to of subpart H of this part. cease fishing for tuna in association (B) Revocation. After considering the with dolphins for the remainder of the information provided under paragraph calendar year; and (f)(8)(ii)(A) of this section, each party’s (D)(1) In any years in which the par- financial obligations to the IATTC, and ties agree to a global allocation system any other relevant information, includ- for per-stock per-year individual stock ing information that a nation is con- quotas, the nation responded to the no- sistently failing to take enforcement tification from the IATTC that an indi- actions on violations that diminish the vidual stock quota had been reached by effectiveness of the IDCP, the Assist- prohibiting any additional sets on the ant Administrator, in consultation stock for which the quota had been with the Secretary of State, will re- reached; voke an affirmative finding issued to a (2) If a per-stock per-year quota is al- nation that is not meeting the obliga- located to each nation, the annual per- tions of the IDCP. stock per-year dolphin mortality of the (iii) A harvesting nation may apply nation’s purse seine fleet (including for an affirmative finding at any time certified charter vessels operating by providing to the Assistant Adminis- under its jurisdiction) did not exceed trator the information and authoriza- the aggregated total of the per-stock tions required in paragraphs (f)(8)(i) per-year limits assigned by the IDCP and (f)(8)(ii) of this section, allowing at for that nation’s purse seine vessels (if least 60 days from the submission of any) for the year preceding the year in complete information to NMFS for which the finding would start; or processing. (3)(i) Because of extraordinary cir- (iv) The Assistant Administrator will cumstances beyond the control of the make or renew an affirmative finding nation and the vessel captains, the per- for the period from April 1 through stock per-year dolphin mortality of the March 31 of the following year, or por- nation’s purse seine fleet (including tion thereof, if the harvesting nation certified charter vessels operating has provided all the information and under its jurisdiction) exceeded the ag- authorizations required by paragraphs gregated total of the per-stock per-year (f)(8)(i) and (f)(8)(ii) of this section, and limits assigned by the IDCP for that has met the requirements of para- nation’s purse seine vessels; and graphs (f)(8)(i) and (f)(8)(ii) of this sec- (ii) Immediately after the national tion. authorities discovered the aggregate (v) Reconsideration of finding. The As- per-stock mortality limits of its fleet sistant Administrator may reconsider

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a finding upon a request from, and the no longer be considered an ‘‘inter- submission of additional information mediary nation’’ and these import re- by, the harvesting nation, if the infor- strictions shall no longer apply. mation indicates that the nation has (v) The Assistant Administrator will met the requirements under para- review decisions under this paragraph graphs (f)(8)(i) and (f)(8)(ii) of this sec- upon the request of an intermediary tion. nation. Such requests must be accom- (9) Intermediary nation. Except as au- panied by specific and detailed sup- thorized under this paragraph, no yel- porting information or documentation lowfin tuna or yellowfin tuna products indicating that a review or reconsider- harvested by purse seine in the ETP ation is warranted. For purposes of this classified under one of the HTS num- paragraph, the term ‘‘certification and bers listed in paragraph (f)(2)(i) of this reasonable proof’’ means the submis- section may be imported into the sion to the Assistant Administrator by United States from any intermediary a responsible government official from nation. the nation of a document reflecting the (i) An ‘‘intermediary nation’’ is a na- nation’s customs records for the pre- tion that exports yellowfin tuna or yel- ceding 6 months, together with a cer- lowfin tuna products to the United tification attesting that the document States and that imports yellowfin tuna is accurate. or yellowfin tuna products that are (10) Fish refused entry. If fish is denied subject to a direct ban on importation entry under paragraph (f)(2) of this sec- into the United States pursuant to Sec- tion, the Port Director of CBP shall tion 101(a)(2)(B) of the MMPA. refuse to release the fish for entry into (ii) Shipments of yellowfin tuna that the United States. pass through any nation (e.g. on a (11) Disposition of fish refused entry ’through Bill of Lading’) and are not into the United States. Fish that is de- entered for consumption in that nation nied entry under paragraph (f)(2) of are not considered to be imports to this section and that is not exported that nation and thus, would not cause under CBP supervision within 90 days that nation to be considered an inter- shall be disposed of under CBP laws mediary nation under the MMPA. and regulations at the importer’s ex- (iii) The Assistant Administrator will pense. Provided, however, that any dis- publish in the FEDERAL REGISTER a no- position shall not result in an intro- tice announcing when NMFS has deter- duction into the United States of fish mined, based on the best information caught in violation of the MMPA. available, that a nation is an ‘‘inter- (12) Market Prohibitions. (i) It is un- mediary nation.’’ After the effective lawful for any person to sell, purchase, date of that notice, the import restric- offer for sale, transport, or ship in the tions of this paragraph shall apply. United States, any tuna or tuna prod- (iv) Changing the status of inter- ucts unless the tuna products are ei- mediary nation determinations. Imports ther: from an intermediary nation of yel- (A) Dolphin-safe under subpart H of lowfin tuna and yellowfin tuna prod- this part; or ucts classified under any of the HTS (B) Harvested in compliance with the numbers in paragraph (f)(2)(i) of this IDCP by vessels under the jurisdiction section may be imported into the of a nation that is a member of the United States only if the Assistant Ad- IATTC or has initiated, and within 6 ministrator determines, and publishes months thereafter completes, all steps a notice of such determination in the required by an applicant nation to be- FEDERAL REGISTER, that the inter- come a member of the IATTC. mediary nation has provided certifi- (ii) It is unlawful for any exporter, cation and reasonable proof that it has transshipper, importer, processor, or not imported in the preceding 6 months wholesaler/distributor to possess, sell, yellowfin tuna or yellowfin tuna prod- purchase, offer for sale, transport, or ucts that are subject to a ban on direct ship in the United States, any tuna or importation into the United States tuna products bearing a label or mark under Section 101(a)(2)(B) of the that refers to dolphins, porpoises, or MMPA. At that time, the nation shall marine mammals unless the label or

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mark complies with the requirements and announce in the FEDERAL REGISTER of 16 U.S.C. 1385(d). that indicates the fish or fish product (g) Penalties. Any person or vessel was not caught or harvested in a fish- subject to the jurisdiction of the ery subject to an import prohibition United States will be subject to the under paragraphs (h)(1) and (h)(9)(i) of penalties provided for under the MMPA this section. for the conduct of fishing operations in (iii) It is unlawful for any person, in- violation of these regulations. Pen- cluding exporters, transshippers, im- alties for violating these regulations porters, processors, or wholesalers/dis- may include, but are not limited to, tributors to possess, sell, purchase, civil monetary fines, permit suspension offer for sale, re-export, transport, or or revocation, and reductions in cur- ship in interstate or foreign commerce rent and future DMLs. Recommended in the United States, any fish or fish sanctions are identified in the IDCPA/ product imported in violation of para- DPCIA Tuna/Dolphin Civil Administra- graph (h) of this section. tive Penalty Schedule. Procedures for (2) Exemptions. (i) Exempt fisheries the imposition of penalties under the are exempt from requirements of para- MMPA are found at 15 CFR part 904. graphs (h)(6)(iii)(B) through (E) of this (h) Taking and related acts of marine section. mammals in foreign commercial fishing (A) For the purposes of paragraph (h) operations not governed by the provisions of this section, harvesting nation means related to tuna purse seine vessels in the the country under whose flag or juris- eastern tropical Pacific Ocean—(1) Prohi- diction one or more fishing vessels or bitions. (i) As provided in section other entity engaged in commercial 101(a)(2) and 102(c)(3)of the MMPA, the fishing operations are documented, or importation of commercial fish or fish which has by formal declaration or products which have been caught with agreement asserted jurisdiction over commercial fishing technology which one or more authorized or certified results in the incidental kill or inci- charter vessels, and from such vessel(s) dental serious injury of ocean mammals in excess of U.S. standards or or entity(ies) fish are caught or har- caught in a manner which the Sec- vested that are a part of any cargo or retary has proscribed for persons sub- shipment of fish or fish products to be ject to the jurisdiction of the United imported into the United States, re- States are prohibited. For purposes of gardless of any intervening trans- paragraph (h) of this section, a fish or shipments, exports or re-exports. fish product caught with commercial (B) [Reserved] fishing technology which results in the (ii) The prohibitions of paragraph incidental mortality or incidental seri- (h)(1) of this section shall not apply ous injury of marine mammals in ex- during the exemption period. cess of U.S. standards is any fish or fish (iii) Paragraph (h) of this section product harvested in an exempt or ex- shall not apply to a commercial fishing port fishery for which a valid com- operation subject to section 101(a)(2)(B) parability finding is not in effect. of the MMPA and its implementing (ii) Accordingly, it is unlawful for regulations set out in the relevant pro- any person to import, or attempt to visions of paragraph (f) of this section import, into the United States for com- which govern the incidental take of mercial purposes any fish or fish prod- delphinids in course of commercial uct if such fish or fish product: purse seine fishing operations for yel- (A) Was caught or harvested in a fish- lowfin tuna in the eastern tropical Pa- ery that does not have a valid com- cific Ocean and restrictions on impor- parability finding in effect at the time tation and sale of fish and fish products of import; or caught or harvested in that commer- (B) Is not accompanied by a Certifi- cial fishing operation. Paragraph (h) of cation of Admissibility where such Cer- this section shall not apply with re- tification is required pursuant to para- spect to large-scale driftnet fishing, graph (h)(9)(iv) of this section or by which is governed by paragraph (f)(7) of such other documentation as the As- this section and the restrictions it sets sistant Administrator may identify out on importation and sale of fish and

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fish products harvested by using a tions of its regulatory programs) and, large-scale driftnet. if necessary, request additional infor- (3) Procedures to identify foreign com- mation. mercial fishing operations with incidental (iv) May consider other readily avail- mortality and serious injury of marine able and relevant information about mammals as exempt or export fisheries. In such commercial fishing operations developing the List of Foreign Fish- and the frequency of incidental mor- eries in paragraph (h)(4) of this section, tality and serious injury of marine the Assistant Administrator: mammals, including: fishing vessel (i) Shall periodically analyze imports records; reports of on-board fishery ob- of fish and fish products and identify servers; information from off-loading commercial fishing operations that are facilities, port-side officials, enforce- the source of exports of such fish and ment agents and officers, trans- fish products to the United States that shipment vessel workers and fish im- have or may have incidental mortality porters; government vessel registries; or serious injury of marine mammals regional fisheries management organi- in the course of their commercial fish- zations documents and statistical doc- ing operations. ument programs; and appropriate cer- (A) For the purposes of paragraph (h) tification programs. Other sources may of this section, a commercial fishing op- include published literature and re- eration means vessels or entities that ports on fishing vessels with incidental catch, take, or harvest fish (as defined mortality and serious injury of marine in section 3 of the Magnuson-Stevens mammals from government agencies; Fishery Conservation and Management foreign, state, and local governments; Act (16 U.S.C. 1802)) from the marine regional fishery management organiza- environment (or other areas where ma- tions; nongovernmental organizations; rine mammals occur) that results in industry organizations; academic insti- the sale or barter of all or part of the tutions; and citizens and citizen fish caught, taken or harvested. The groups. term includes aquaculture activities (4) List of Foreign Fisheries. (i) Within that interact with or occur in marine one year of January 1, 2017, and the mammal habitat. year prior to the expiration of the ex- (B) [Reserved] emption period and every four years (ii) Shall notify, in consultation with thereafter, the Assistant Adminis- the Secretary of State, each harvesting trator, based on the information ob- nation that has commercial fishing op- tained in paragraph (h)(3) of this sec- erations identified pursuant to para- EDERAL REG- graph (h)(3)(i) of this section and re- tion, will publish in the F quest that within 90 days of notifica- ISTER: tion the harvesting nation submit reli- (A) A proposed List of Foreign Fish- able information about the commercial eries by harvesting nation for notice fishing operations identified, including and comment; and as relevant the number of participants, (B) A final List of Foreign Fisheries, number of vessels, gear type, target effective upon publication in the FED- species, area of operation, fishing sea- ERAL REGISTER. son, any information regarding the fre- (ii) To the extent that information is quency of marine mammal incidental available, the List of Foreign Fisheries mortality and serious injury and any shall: programs (including any relevant laws, (A) Classify each commercial fishing decrees, regulations or measures) to as- operation that is the source of exports sess marine mammal populations and of fish and fish products to the United to reduce incidental mortality and se- States based on the definitions for ex- rious injury of marine mammals in port fishery and exempt fishery set those fisheries or prohibit the inten- forth in § 216.3 and identified in the List tional killing or injury of marine mam- of Foreign Fisheries by harvesting na- mals. tion and other defining factors includ- (iii) Shall review each harvesting na- ing geographic location of harvest, tion’s submission, evaluate any infor- gear-type, target species or a combina- mation it contains (including description thereof;

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(B) Include fishing gear type, target this section or an application for or re- species, and number of vessels or other consideration of a comparability find- entities engaged in each commercial ing in paragraphs (h)(6) and (8) of this fishing operation; section. (C) List the marine mammals that (iii) The Assistant Administrator interact with each commercial fishing shall, in consultation with the Sec- operation and indicate the level of inci- retary of State and the United States dental mortality and serious injury of Trade Representative, consult with any marine mammals in each commercial harvesting nations that failed to re- fishing operation; ceive a comparability finding for one (D) Provide a description of the har- or more of commercial fishing oper- vesting nation’s programs to assess ations or for which a comparability marine mammal stocks and estimate finding is terminated and encourage and reduce marine mammal incidental the harvesting nation to take correc- mortality and serious injury in its ex- tive action and reapply for a com- port fisheries; and parability finding in accordance with (E) List the harvesting nations that paragraph (h)(9)(iii) of this section. prohibit, in the course of commercial (6) Procedure and conditions for a com- fishing operations that are the source parability finding—(i) Procedures to of exports to the United States, the in- apply for a comparability finding. On tentional mortality or serious injury of March 1st of the year when the exemp- marine mammals unless the intention period or comparability finding is tional mortality or serious injury of a to expire, a harvesting nation shall marine mammal is imminently nec- submit to the Assistant Administrator essary in self-defense or to save the life an application for each of its export of a person in immediate danger. and exempt fisheries, along with docu- (5) Consultations with Harvesting Na- mentary evidence demonstrating that tions with Commercial Fishing Operations the harvesting nation has met the con- on the List of Foreign Fisheries. (i) With- ditions specified in paragraph (h)(6)(iii) in 90 days of publication of the final of this section for each of such fishery, List of Foreign Fisheries in the FED- including reasonable proof as to the ef- ERAL REGISTER, the Assistant Adminis- fects on marine mammals of the com- trator, in consultation with the Sec- mercial fishing technology in use in retary of State, shall consult with har- the fishery for fish or fish products ex- vesting nations with commercial fish- ported from such nation to the United ing operations identified as export or States. The Assistant Administrator exempt fisheries as defined in § 216.3 for may request the submission of addi- purposes of notifying the harvesting tional supporting documentation or nation of the requirements of the Ma- other verification of statements made rine Mammal Protection Act and this in an application for a comparability subpart. finding. (ii) The Assistant Administrator, in (ii) Procedures to issue a comparability consultation with the Secretary of finding. No later than November 30th of State, may consult with harvesting na- the year when the exemption period or tions for the purposes of providing no- comparability finding is to expire, the tifications of deadlines under this sec- Assistant Administrator, in response tion, ascertaining or reviewing the to an application from a harvesting na- progress of the harvesting nation’s de- tion for an export or exempt fishery, velopment, adoption, implementation, shall determine whether to issue to the or enforcement of its regulatory pro- harvesting nation, in accordance with gram governing the incidental mor- the procedures set forth in paragraph tality and serious injury of marine (h)(8) of this section, a comparability mammals in the course of commercial finding for the fishery. In making this fishing operations for an export fish- determination, the Assistant Adminis- ery, supplementing or clarifying infor- trator shall consider documentary evi- mation needed in conjunction with the dence provided by the harvesting na- List of Foreign Fisheries in paragraphs tion and relevant information readily (h)(3) and (4) of this section, the available from other sources. If a har- progress report in paragraph (h)(10) of vesting nation provides insufficient

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documentary evidence in support of its the finding in paragraph (h)(6)(ii) of application, the Assistant Adminis- this section, with respect to an export trator shall draw reasonable conclu- fishery operating under the jurisdic- sions regarding the fishery based on tion of a harvesting nation within its readily available and relevant informa- EEZ (or the equivalent) or territorial tion from other sources, including sea, the Assistant Administrator shall where appropriate information con- determine whether the harvesting na- cerning analogous fisheries that use tion maintains a regulatory program the same or similar gear-type under that provides for, or effectively similar conditions as the fishery, in de- achieves comparable results as, the fol- termining whether to issue the har- lowing: vesting nation a comparability finding (1) Marine mammal assessments that for the fishery. estimate population abundance for ma- (iii) Conditions for a comparability rine mammal stocks in waters under finding. The following are conditions the harvesting nation’s jurisdiction for the Assistant Administrator to issue a comparability finding for the that are incidentally killed or seri- fishery, subject to the additional con- ously injured in the export fishery. siderations set out in paragraph (h)(7) (2) An export fishery register con- of this section: taining a list of all fishing vessels par- (A) For an exempt or export fishery, ticipating in the export fishery, includ- the harvesting nation: ing information on the number of ves- (1) Prohibits the intentional mor- sels participating, the time or season tality or serious injury of marine mam- and area of operation, gear type and mals in the course of commercial fish- target species. ing operations in the fishery unless the (3) Regulatory requirements that in- intentional mortality or serious injury clude: of a marine mammal is imminently (i) A requirement for the owner or op- necessary in self-defense or to save the erator of a vessel participating in the life of a person in immediate danger; or export fishery to report all intentional (2) Demonstrates that it has proce- and incidental mortality and injury of dures to reliably certify that exports of marine mammals in the course of com- fish and fish products to the United mercial fishing operations; and States are not the product of an inten- (ii) A requirement to implement tional killing or serious injury of a ma- measures in the export fishery designed rine mammal unless the intentional to reduce the total incidental mor- mortality or serious injury of a marine tality and serious injury of a marine mammal is imminently necessary in mammal stock below the bycatch self-defense or to save the life of a per- limit; and son in immediate danger; and (iii) with respect to any transbound- (B) For an export fishery, the harvesting nation maintains a regulatory ary stock or any other marine mammal program with respect to the fishery stocks interacting with the export fish- that is comparable in effectiveness to ery, measures to reduce the incidental the U.S. regulatory program with re- mortality and serious injury of that spect to incidental mortality and seri- stock that the United States requires ous injury of marine mammals in the its domestic fisheries to take with re- course of commercial fishing oper- spect to that transboundary stock or ations, in particular by maintaining a marine mammal stock. regulatory program that includes, or (4) Implementation of monitoring effectively achieves comparable results procedures in the export fishery de- as, the conditions in paragraph signed to estimate incidental mor- (h)(6)(iii)(C), (D), or (E) of this section tality or serious injury in the export as applicable (including for trans- fishery, and to estimate the cumu- boundary stocks). lative incidental mortality and serious (C) Conditions for an export fishery op- injury of marine mammal stocks in erating under the jurisdiction of a har- waters under its jurisdiction resulting vesting nation within its EEZ (or the from the export fishery and other ex- equivalent) or territorial sea. In making port fisheries interacting with the

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same marine mammal stocks, includ- the jurisdiction of the state, any meas- ing an indication of the statistical reli- ures to reduce incidental mortality and ability of those estimates. serious injury that the United States (5) Calculation of bycatch limits for requires its domestic fisheries to take marine mammal stocks in waters with respect to that marine mammal under its jurisdiction that are inciden- stock; and tally killed or seriously injured in the (2) For an export fishery not subject export fishery. to management by a regional fishery (6) Comparison of the incidental mor- management organization: tality and serious injury of each ma- (i) An assessment of marine mammal rine mammal stock or stocks that abundance of stocks interacting with interact with the export fishery in re- the export fishery, the calculation of a lation to the bycatch limit for each bycatch limit for each such stock, an stock; and comparison of the cumu- estimation of incidental mortality and lative incidental mortality and serious serious injury for each stock and re- injury of each marine mammal stock duction in or maintenance of the inci- or stocks that interact with the export dental mortality and serious injury of fishery and any other export fisheries each stock below the bycatch limit. of the harvesting nation showing that This data included in the application these export fisheries: may be provided by the state or an- (i) Do not exceed the bycatch limit other source; and for that stock or stocks; or (ii) Comparison of the incidental (ii) Exceed the bycatch limit for that mortality and serious injury of each stock or stocks, but the portion of inci- marine mammal stock or stocks that dental marine mammal mortality or interact with the export fishery in re- serious injury for which the export lation to the bycatch limit for each fishery is responsible is at a level that, stock; and comparison of the cumu- if the other export fisheries interacting lative incidental mortality and serious with the same marine mammal stock injury of each marine mammal stock or stocks were at the same level, would or stocks that interact with the export not result in cumulative incidental fishery and any other export fisheries mortality and serious injury in excess of the harvesting nation showing that of the bycatch limit for that stock or these export fisheries do not exceed the stocks. bycatch limit for that stock or stocks; (D) Conditions for a harvesting nation’s or exceed the bycatch limit for that export fishery operating within the juris- stock or stocks, but the portion of inci- diction of another state. In making the dental marine mammal mortality or finding in paragraph (h)(6)(ii) of this serious injury for which the export section, with respect to a harvesting fishery is responsible is at a level that, nation’s export fishery operating with- if the other export fisheries interacting in the jurisdiction of another state, the with the same marine mammal stock Assistant Administrator shall deter- or stocks were at the same level, would mine whether the harvesting nation not result in cumulative incidental maintains a regulatory program that mortality and serious injury in excess provides for, or effectively achieves of the bycatch limit for that stock or comparable results as, the following: stocks; or (1) Implementation in the export (3) For an export fishery that is sub- fishery of: ject to management by a regional fish- (i) With respect to any transboundary ery management organization, imple- stock interacting with the export fish- mentation of marine mammal data col- ery, any measures to reduce the inci- lection and conservation and manage- dental mortality and serious injury of ment measures applicable to that fish- that stock that the United States re- ery required under any applicable quires its domestic fisheries to take intergovernmental agreement or re- with respect that transboundary stock; gional fisheries management organiza- and tion to which the United States is a (ii) With respect to any other marine party. mammal stocks interacting with the (E) Conditions for a harvesting nation’s export fishery while operating within export fishery operating on the high seas

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under the jurisdiction of the harvesting to reduce the incidental mortality and nation or another state. In making the serious injury of marine mammals finding in paragraph (h)(6)(ii) of this caused by the harvesting nation’s ex- section, with respect to a harvesting port fisheries to levels below the by- nation’s export fishery operating on catch limit; the high seas under the jurisdiction of (iii) Whether the measures adopted the harvesting nation or another state, by the harvesting nation for its export the Assistant Administrator shall de- fishery have reduced or will likely re- termine whether the harvesting nation duce the cumulative incidental mor- maintains a regulatory program that tality and serious injury of each ma- provides for, or effectively achieves rine mammal stock below the bycatch comparable results as, the U.S. regu- limit, and the progress of the regulatory program with respect to the fol- latory program toward achieving its lowing: objectives; (1) Implementation in the fishery of (iv) Other relevant facts and cir- marine mammal data collection and cumstances, which may include the conservation and management meas- history and nature of interactions with ures applicable to that fishery required marine mammals in this export fish- under any applicable intergovern- ery, whether the level of incidental mental agreement or regional fisheries mortality and serious injury resulting management organization to which the from the fishery or fisheries exceeds United States is a party; and the bycatch limit for a marine mam- (2) Implementation in the export mal stock, the population size and fishery of: trend of the marine mammal stock, (i) With respect to any transboundary and the population level impacts of the stock interacting with the export fish- incidental mortality or serious injury ery, any measures to reduce the inci- of marine mammals in a harvesting na- dental mortality and serious injury of tion’s export fisheries and the con- that stock that the United States re- servation status of those marine mam- quires its domestic fisheries to take mal stocks where available; with respect that transboundary stock; and (v) The record of consultations under (ii) With respect to any other marine paragraph (h)(5) of this section with mammal stocks interacting with the the harvesting nation, results of these export fishery while operating on the consultations, and actions taken by high seas, any measures to reduce inci- the harvesting nation and under any dental mortality and serious injury applicable intergovernmental agree- that the United States requires its do- ment or regional fishery management mestic fisheries to take with respect to organization to reduce the incidental that marine mammal stock when they mortality and serious injury of marine are operating on the high seas. mammals in its export fisheries; (7) Additional considerations for com- (vi) Information gathered during on- parability finding determinations. When site inspection by U.S. government of- determining whether to issue any com- ficials of a fishery’s operations; parability finding for a harvesting na- (vii) For export fisheries operating on tion’s export fishery the Assistant Ad- the high seas under an applicable inter- ministrator shall also consider: governmental agreement or regional (i) U.S. implementation of its regu- fishery management organization to latory program for similar marine which the United States is a party, the mammal stocks and similar fisheries harvesting nation’s record of imple- (e.g., considering gear or target spe- mentation of or compliance with meas- cies), including transboundary stocks ures adopted by that regional fishery governed by regulations implementing management organization or intergov- a take reduction plan (§ 229.2 of this ernmental agreement for data collec- chapter), and any other relevant infor- tion, incidental mortality and serious mation received during consultations; injury mitigation or the conservation (ii) The extent to which the har- and management of marine mammals; vesting nation has successfully imple- whether the harvesting nation is a mented measures in the export fishery party or cooperating non-party to such

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intergovernmental agreement or re- tions under paragraphs (h)(1) and (9) of gional fishery management organiza- this section on account of a denial of a tion; the record of United States imple- comparability finding and the effective mentation of such measures; and date of such import prohibitions. whether the United States has imposed (iii) Preliminary comparability finding additional measures on its fleet not re- consultations. (A) Prior to denying a quired by an intergovernmental agree- comparability finding under paragraph ment or regional fishery management (h)(8)(ii) of this section or terminating organization; or a comparability finding under para- (viii) For export fisheries operating graph (h)(8)(vii) of this section, the As- on the high seas under an applicable sistant Administrator shall: intergovernmental agreement or re- (1) Notify the harvesting nation that gional fisheries management organiza- it is preliminarily denying or termi- tion to which the United States is not nating its comparability finding and a party, the harvesting nation’s imple- explain the reasons for that prelimi- mentation of and compliance with nary denial or termination; measures, adopted by that regional (2) Provide the harvesting nation a fisheries management organization or reasonable opportunity to submit reli- intergovernmental agreement, and any able information to refute the prelimi- additional measures implemented by nary denial or termination of the com- the harvesting nation for data collec- parability finding and communicate tion, incidental mortality and serious any corrective actions it is taking to injury mitigation or the conservation meet the applicable conditions for a and management of marine mammals comparability finding set out in para- and the extent to which such measures graph (h)(6)(iii) of this section subject are comparable in effectiveness to the to the additional considerations set out U.S. regulatory program for similar in paragraph (h)(7) of this section. fisheries. (8) Comparability finding determina- (B) The Assistant Administrator tions—(i) Publication. No later than No- shall take into account any informa- vember 30th of the year when the ex- tion it receives from the harvesting na- emption period or comparability find- tion and issue a final comparability ing is to expire, the Assistant Adminis- finding determination, notifying the trator shall publish in the FEDERAL harvesting nation pursuant to para- REGISTER, by harvesting nation, a no- graph (h)(8)(ii) of this section of its de- tice of the harvesting nations and fish- termination and, if a denial or termi- eries for which it has issued or denied nation, an explanation of the reasons a comparability finding and the spe- for the denial or termination of the cific fish and fish products that as a re- comparability finding. sult are subject to import prohibitions (C) A preliminary denial or termi- under paragraphs (h)(1) and (9) of this nation of a comparability finding shall section. not result in import prohibitions pur- (ii) Notification. Prior to publication suant to paragraphs (h)(1) and (9) of in the FEDERAL REGISTER, the Assist- this section. ant Administrator, in consultation (iv) Duration of a comparability find- with the Secretary of State and, in the ing. Unless terminated in accordance event of a denial of a comparability with paragraph (h)(8)(vii) of this sec- finding, with the Office of the U.S. tion or issued for a specific period pur- Trade Representative, shall notify each suant to a re-application under para- harvesting nation in writing of the graph (h)(9)(iii) of this section, a com- fisheries of the harvesting nation for parability finding shall remain valid which the Assistant Administrator is: for 4 years from publication or for such (A) Issuing a comparability finding; other period as the Assistant Adminis- (B) Denying a comparability finding trator may specify. with an explanation for the reasons for (v) Renewal of comparability finding. the denial of such comparability find- To seek renewal of a comparability ing; and finding, every 4 years or prior to the (C) Specify the fish and fish products expiration of a comparability finding, that will be subject to import prohibi- the harvesting nation must submit to

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the Assistant Administrator the appli- ery as either an exempt or export fish- cation and the documentary evidence ery. required pursuant to paragraph (h)(6)(i) (vii) Discretionary review of com- of this section, including, where appli- parability findings. (A) The Assistant cable, reasonable proof as to the effects Administrator may reconsider a com- on marine mammals of the commercial parability finding that it has issued at fishing technology in use in the fishery any time based upon information ob- for fish or fish products exported to the tained by the Assistant Administrator United States, by March 1 of the year including any progress report received when its current comparability finding from a harvesting nation; or upon re- is due to expire. quest with the submission of informa- (vi) Procedures for a comparability tion from the harvesting nation, any finding for new foreign commercial fishing nation, regional fishery management operations wishing to export to the United organizations, nongovernmental orga- States. (A) For foreign commercial fish- nizations, industry organizations, aca- ing operations not on the List of For- demic institutions, citizens or citizen eign Fisheries that are the source of groups that the harvesting nation’s ex- new exports to the United States, the empt or export fishery no longer meets harvesting nation must notify the As- the applicable conditions in paragraph sistant Administrator that the com- (h)(6)(iii) of this section. Upon receiv- mercial fishing operation wishes to ex- ing a request, the Assistant Adminis- port fish and fish products to the trator has the discretion to determine United States. whether to proceed with a review or re- (B) Upon notification the Assistant consideration. Administrator shall issue a provisional (B) After such review or reconsider- comparability finding allowing such ation and consultation with the har- imports for a period not to exceed 12 vesting nation, the Assistant Adminis- trator shall, if the Assistant Adminis- months. trator determines that the basis for the (C) At least 120 days prior to the ex- comparability finding no longer ap- piration of the provisional complies, terminate a comparability find- parability finding the harvesting na- ing. tion must submit to the Assistant Ad- (C) The Assistant Administrator ministrator the reliable information shall notify in writing the harvesting specified in paragraph (h)(3)(ii) of this nation and publish in the FEDERAL section and the application and the ap- REGISTER a notice of the termination plicable documentary evidence re- and the specific fish and fish products quired pursuant to paragraph (h)(6)(i) that as a result are subject to import of this section. prohibitions under paragraphs (h)(1) (D) Prior to expiration of the provi- and (9) of this section. sional comparability finding, the As- (9) Imposition of import prohibitions. (i) sistant Administrator shall review the With respect to a harvesting nation for application and information provided which the Assistant Administrator has and classify the commercial fishing op- denied or terminated a comparability eration as either an exempt or export finding for a fishery, the Assistant Ad- fishery in accordance with paragraphs ministrator, in cooperation with the (h)(3)(iii) through (iv) and (h)(4)(ii) of Secretaries of the Treasury and Home- this section and determine whether to land Security, shall identify and pro- issue the harvesting nation a com- hibit the importation of fish and fish parability finding for the fishery in ac- products into the United States from cordance with paragraph (h)(6)(ii) the harvesting nation caught or har- through (iii) of this section. vested in that fishery. Any such import (E) If the harvesting nation submits prohibition shall become effective 30 the reliable information specified in days after the of publication of the paragraph (h)(3)(ii) of this section at FEDERAL REGISTER notice referenced in least 180 days prior to expiration of the paragraph (h)(8)(i) of this section and provisional comparability finding, the shall only apply to fish and fish prod- Assistant Administrator will review ucts caught or harvested in that fish- that information and classify the fishery.

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(ii) Duration of import restrictions and fish products caught or harvested in removal of import restrictions. (A) Any another fishery of the harvesting na- import prohibition imposed pursuant tion and not subject to the prohibition to paragraphs (h)(1) and (9) of this sec- be accompanied by a certification of tion with respect to a fishery shall re- admissibility by paper or electronic main in effect until the Assistant Ad- equivalent filed through the National ministrator issues a comparability Marine Fisheries Service message set finding for the fishery. required in the International Trade (B) A harvesting nation with an ex- Data System. No certification of ad- port fishery with a comparability find- missibility shall be required for a fish ing that expired, was denied or termi- product for which it is infeasible to nated may re-apply for a comparability substantiate the attestation that the finding at any time by submitting an fish or fish products do not contain fish application to the Assistant Adminis- or fish products caught or harvested in trator, along with documentary evi- a fishery subject to an import prohibi- dence demonstrating that the har- tion. The certification of admissibility vesting nation has met the conditions may be in addition to any other appli- specified in paragraph (h)(6)(iii) of this cable import documentation require- section, including, as applicable, rea- ments. sonable proof as to the effects on ma- (B) The Assistant Administrator rine mammals of the commercial fish- shall notify the harvesting nation of ing technology in use in the fishery for the fisheries and the fish and fish prod- the fish or fish products exported from ucts to be accompanied by a certifi- such nation to the United States. cation of admissibility and provide the (C) The Assistant Administrator necessary documents and instruction. shall make a determination whether to (C) The Assistant Administrator, in issue the harvesting nation that has re- cooperation with the Secretaries of applied for a comparability finding for Treasury and Homeland Security, shall the fishery within 90 days from the as part of the FEDERAL REGISTER notice submission of complete information to referenced in paragraph (h)(8)(i) of this the Assistant Administrator. The As- section, publish a list of fish and fish sistant Administrator shall issue a products, organized by harvesting na- comparability finding for the fishery tion, required to be accompanied by a for a specified period where the Assist- certification of admissibility. Any re- ant Administrator finds that the har- quirement for a certification of admis- vesting nation meets the applicable sibility shall be effective 30 days after conditions in paragraph (h)(6)(iii) of the publication of such notice in the this section, subject to the additional FEDERAL REGISTER. consideration for a comparability find- (D) For each shipment, the certifi- ing in paragraph (h)(7) of this section. cation of admissibility must be prop- (D) Upon issuance of a comparability erly completed and signed by a duly finding to the harvesting nation with authorized official or agent of the har- respect to the fishery and notification vesting nation and subject to valida- in writing to the harvesting nation, the tion by a responsible official(s) des- Assistant Administrator, in coopera- ignated by the Assistant Adminis- tion with the Secretaries of Treasury trator. The certification must also be and Homeland Security, shall publish signed by the importer of record and in the FEDERAL REGISTER a notice of submitted in a format (electronic fac- the comparability finding and the re- simile [fax], the Internet, etc.) speci- moval of the corresponding import pro- fied by the Assistant Administrator. hibition effective on the date of publi- (iv) Intermediary nation. (A) For pur- cation in the FEDERAL REGISTER. poses of this paragraph (h)(9), and in (iii) Certification of admissibility. (A) If applying the definition of an ‘‘inter- fish or fish products are subject to an mediary nation,’’ an import into the import prohibition under paragraphs intermediary nation occurs when the (h)(1) and (9) of this section, the Assist- fish or fish product is released from a ant Administrator, to avoid circumven- harvesting nation’s customs jurisdiction of the import prohibition, may re- tion and enters the customs jurisdic- quire that the same or similar fish and tion of the intermediary nation or

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when the fish and fish products are en- (2) It maintains a tracking, tered into a foreign trade zone of the verification, or other scheme to reli- intermediary nation for processing or ably certify on either a global, indi- transshipment. For other purposes, vidual shipment or other appropriate ‘‘import’’ is defined in § 216.3. basis that fish and fish products from (B) No fish or fish products caught or the intermediary nation offered for im- harvested in a fishery subject to an import to the United States do not con- port prohibition under paragraphs tain fish or fish products caught or (h)(1) and (9) of this section, may be harvested in a fishery subject to an im- imported into the United States from port prohibition under paragraphs any intermediary nation. (h)(1) and (h)(9)(i) of this section and (C) Within 30 days of publication of for which it was notified under para- the FEDERAL REGISTER notice described graph (h)(9)(iv)(C) of this section. in paragraph (h)(8)(i) of this section (F) No later than 120 days after a no- specifying fish and fish products sub- tification pursuant to paragraph ject to import prohibitions under para- (h)(9)(iv)(C) of this section, the Assist- graphs (h)(1) and (9) of this section, the ant Administrator will review the doc- Assistant Administrator shall, based umentary evidence provided by the on readily available information, iden- intermediary nation under paragraphs tify intermediary nations that may im- (h)(9)(iv)(D) and (E) of this section and port, and re-export to the United determine based on that information or States, fish and fish products from a other readily available information fishery subject to an import prohibi- whether the intermediary nation im- tion under paragraphs (h)(1) and ports, or offers to import into the (h)(9)(i) of this section and notify such United States, fish and fish products nations in writing that they are sub- subject import prohibitions and, if so, ject to action under paragraph whether the intermediary nation has procedures to reliably certify that ex- (h)(9)(iv)(D) of this section with respect ports of fish and fish products from the to the fish and fish products for which intermediary nation to the United the Assistant Administer identified States do not contain fish or fish prod- them. ucts subject to import prohibitions (D) Within 60 days from the date of under paragraphs (h)(1) and (9) of this notification, an intermediary nation section, and notify the intermediary notified pursuant to paragraph nation of its determination. (h)(9)(iv)(C) of this section must certify (G) If the Assistant Administrator to the Assistant Administrator that it: determines that the intermediary na- (1) Does not import, or does not offer tion does not have procedures to reli- for import into the United States, fish ably certify that exports of fish and or fish products subject to an import fish products from the intermediary prohibition under paragraphs (h)(1) and nation to the United States do not con- (h)(9)(i) of this section; or tain fish or fish products caught or (2) Has procedures to reliably certify harvested in a fishery subject to an im- that exports of fish and fish products port prohibition under paragraphs from the intermediary nation to the (h)(1) and (h)(9)(i) of this section, the United States do not contain fish or Assistant Administrator, in coopera- fish products caught or harvested in a tion with the Secretaries of the Treas- fishery subject to an import prohibi- ury and Homeland Security, will file tion under paragraphs (h)(1) and with the Office of the Federal Register (h)(9)(i) of this section. a notice announcing the fish and fish (E) The intermediary nation must products exported from the inter- provide documentary evidence to sup- mediary nation to the United States port its certification including infor- that are of the same species as, or simi- mation demonstrating that: lar to, fish or fish products subject to (1) It has not imported in the pre- an import prohibition under para- ceding 6 months the fish and fish prod- graphs (h)(1) and (h)(9)(i) of this section ucts for which it was notified under that may not be imported into the paragraph (h)(9)(iv)(C) of this section; United States as a result of the deter- or mination. A prohibition under this

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paragraph shall not apply to any fish finding in accordance with paragraph or fish product for which the inter- (h)(8)(vi) of this section. mediary nation was not identified (11) International cooperation and as- under paragraph (h)(9)(iv)(C) of this sistance. Consistent with the authority section. granted under Marine Mammal Protec- (H) The Assistant Administrator will tion Act at 16 U.S.C. 1378 and the avail- review determinations under this para- ability of funds, the Assistant Adminis- graph upon the request of an inter- trator may: mediary nation. Such requests must be (i) Provide appropriate assistance to accompanied by specific and detailed harvesting nations identified by the supporting information or documenta- Assistant Administrator under para- tion indicating that a review or recon- graph (h)(5) of this section with respect sideration is warranted. Based upon to the financial or technical means to such information and other relevant develop and implement the require- information, the Assistant Adminis- ments of this section; trator may determine that the inter- (ii) Undertake, where appropriate, co- mediary nation should no longer be operative research on marine mammal subject to an import prohibition under assessments for abundance, methods to paragraph (h)(9)(iv)(G) of this section. estimate incidental mortality and seri- If the Assistant Administrator makes ous injury and technologies and tech- such a determination, the Assistant niques to reduce marine mammal inci- Administrator, in cooperation with the dental mortality and serious injury in Secretaries of the Treasury and Home- export fisheries; land Security, shall lift the import prohibition under this paragraph and pub- (iii) Encourage and facilitate, as ap- lish notification of such action in the propriate, the voluntary transfer of ap- FEDERAL REGISTER. propriate technology on mutually (10) Progress report for harvesting na- agreed terms to assist harvesting nations with export fisheries. (i) A har- tions in qualifying for a comparability vesting nation shall submit, with re- finding under paragraph (h)(6) of this spect to an exempt or export fishery, a section; and progress report to the Assistant Ad- (iv) Initiate, through the Secretary ministrator documenting actions taken of State, negotiations for the develop- to: ment of bilateral or multinational (A) Develop, adopt and implement its agreements with harvesting nations to regulatory program; and conserve marine mammals and reduce (B) Meet the conditions in paragraph the incidental mortality and serious (h)(6)(iii) of this section, including with injury of marine mammals in the respect to reducing or maintaining in- course of commercial fishing oper- cidental mortality and serious injury ations. of marine mammals below the bycatch (12) Consistency with international obli- limit for its fisheries. gations. The Assistant Administrator (ii) The progress report should in- shall ensure, in consultation with the clude the methods the harvesting na- Department of State and the Office of tion is using to obtain information in the United States Trade Representa- support of a comparability finding and tive that any action taken under this a certification by the harvesting na- section, including any action to deny a tion of the accuracy and authenticity comparability finding or to prohibit of the information contained in the imports, is consistent with the inter- progress report. national obligations of the United (iii) The first progress report will be States, including under the World due two years prior to the end of ex- Trade Organization Agreement. emption period and every four years thereafter on or before July 31. [69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005; 74 FR 1613, Jan. 13, (iv) The Assistant Administrator 2009; 81 FR 36184, June 6, 2016; 81 FR 51132, may review the progress report to mon- Aug. 3, 2016; 81 FR 54413, Aug. 15, 2016; 83 FR itor progress made by a harvesting na- 3625, Jan. 26, 2018; 84 FR 70043, Dec. 20, 2019; tion in developing its regulatory pro- 85 FR 29669, May 18, 2020; 85 FR 49975, Aug. 17, gram or to reconsider a comparability 2020; 85 FR 58297, Sept. 18, 2020]

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§ 216.25 Exempted marine mammals (b) of this section must be registered and marine mammal products. and identified, and may be transferred (a) The provisions of the MMPA and or otherwise possessed, in accordance these regulations shall not apply: with § 216.22(c). In registering a marine (1) To any marine mammal taken be- mammal part collected or imported fore December 21, 1972 1, or under paragraph (b) of this section, the (2) To any marine mammal product if person who collected or imported the the marine mammal portion of such part must also state the scientific re- product consists solely of a marine search or enhancement purpose for mammal taken before such date. which the part was collected or im- (b) The prohibitions contained in ported. § 216.12(c) (3) and (4) shall not apply to (d) No person may purchase, sell or marine mammals or marine mammal trade for commercial purposes any ma- products imported into the United rine mammal part collected or im- States before the date on which a no- ported under this section. tice is published in the FEDERAL REG- (e) The export of parts collected ISTER with respect to the designation without prior authorization under of the species or stock concerned as de- paragraph (b) of this section may occur pleted or endangered. if consistent with the provisions at (c) Section 216.12(b) shall not apply to § 216.37(d) under subpart D. articles imported into the United [39 FR 1852, Jan. 15, 1974, as amended at 59 States before the effective date of the FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, foreign law making the taking or sale, 1996] as the case may be, of such marine mammals or marine mammal products § 216.27 Release, non-releasability, and unlawful. disposition under special exception permits for rehabilitated marine [39 FR 1852, Jan. 15, 1974, as amended at 56 mammals. FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, (a) Release requirements. (1) Any ma- 1994] rine mammal held for rehabilitation § 216.26 Collection of certain marine must be released within six months of mammal parts without prior au- capture or import unless the attending thorization. veterinarian determines that: Notwithstanding any other provision (i) The marine mammal might ad- of this subpart: versely affect marine mammals in the (a) Any bones, teeth or ivory of any wild; dead marine mammal may be collected (ii) Release of the marine mammal to 1 the wild will not likely be successful from a beach or from land within ⁄4 of a mile of the ocean. The term ocean in- given the physical condition and be- cludes bays and estuaries. havior of the marine mammal; or (b) Notwithstanding the provisions of (iii) More time is needed to deter- subpart D, soft parts that are sloughed, mine whether the release of the marine excreted, or discharged naturally by a mammal to the wild will likely be suc- living marine mammal in the wild may cessful. Releasability must be reevalu- be collected or imported for bona fide ated at intervals of no less than six scientific research and enhancement, months until 24 months from capture provided that collection does not in- or import, at which time there will be volve the taking of a living marine a rebuttable presumption that release mammal in the wild. into the wild is not feasible. (c) Any marine mammal part col- (2) The custodian of the rehabilitated lected under paragraph (a) of this sec- marine mammal shall provide written tion or any marine mammal part col- notification prior to any release into lected and imported under paragraph the wild. (i) Notification shall be provided to: (A) The NMFS Regional Director at 1 In the context of captive maintenance of marine mammals, the only marine mammals least 15 days in advance of releasing exempted under this section are those that any beached or stranded marine mam- were actually captured or otherwise in cap- mal, unless advance notice is waived in tivity before December 21, 1972. writing by the Regional Director; or

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(B) The Office Director at least 30 (i) Request authorization to retain or days in advance of releasing any im- transfer custody of the marine mam- ported marine mammal. mal in accordance with paragraph (c) (ii) Notification shall include the fol- of this section, or; lowing: (ii) Humanely euthanize the marine (A) A description of the marine mam- mammal or arrange any other disposi- mal, including its physical condition tion of the marine mammal authorized and estimated age; by the Regional Director or Office Di- (B) The date and location of release; rector. and (4) Notwithstanding any of the provi- (C) The method and duration of sions of this section, the Office Direc- transport prior to release. tor may require use of a rehabilitated (3) The Regional Director, or the Of- marine mammal for any activity au- fice Director as appropriate, may: thorized under subpart D in lieu of ani- (i) Require additional information mals taken from the wild. prior to any release; (5) Any rehabilitated beached or (ii) Change the date or location of re- stranded marine mammal placed on lease, or the method or duration of public display following a non-releas- transport prior to release; ability determination under paragraph (iii) Impose additional conditions to (a)(1) of this section and pending dis- improve the likelihood of success or to position under paragraph (c) of this monitor the success of the release; or section, or any marine mammal im- (iv) Require other disposition of the ported for medical treatment otherwise marine mammal. unavailable and placed on public dis- (4) All marine mammals must be re- play pending disposition after such leased near wild populations of the medical treatment is concluded, must same species, and stock if known, un- be held in captive maintenance con- less a waiver is granted by the Re- sistent with all requirements for public gional Director or the Office Director. display. (5) All marine mammals released must be tagged or marked in a manner (c) Disposition for a special exception acceptable to the Regional Director or purpose. (1) Upon receipt of an author- the Office Director. The tag number or ization request made under paragraph description of the marking must be re- (b)(3)(i) of this section, or release noti- ported to the Regional Director or Of- fication under (a)(2), the Office Direc- fice Director following release. tor may authorize the retention or (b) Non-releasability and postponed de- transfer of custody of the marine mam- terminations. (1) The attending veteri- mal for a special exception purpose au- narian shall provide the Regional Di- thorized under subpart D. rector or Office Director with a written (2) The Office Director will first con- report setting forth the basis of any de- sider requests from a person authorized termination under paragraphs (a)(1)(i) to hold the marine mammal for reha- through (iii) of this section. bilitation. The Office Director may au- (2) Upon receipt of a report under thorize such person to retain or trans- paragraph (b)(1) of this section, the Re- fer custody of the marine mammal for gional Director or Office Director, in scientific research, enhancement, or their sole discretion, may: public display purposes. (i) Order the release of the marine (3) The Office Director may authorize mammal; retention or transfer of custody of the (ii) Order continued rehabilitation marine mammal only if: for an additional 6 months; or (i) Documentation has been sub- (iii) Order other disposition as au- mitted to the Office Director that the thorized. person retaining the subject animal or (3) No later than 30 days after a ma- the person receiving custody of the rine mammal is determined subject animal by transfer, hereinafter unreleasable in accordance with para- referred to as the recipient, complies graphs (a)(1)(i) through (iii) of this sec- with public display requirements of 16 tion, the person with authorized cus- U.S.C. 1374(c)(2)(A) or, for purposes of tody must: scientific research and enhancement,

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holds an applicable permit, or an appli- Director regarding release or other dis- cation for such a special exception per- position. These reports must be pro- mit under § 216.33 or a request for a vided in the form and frequency speci- major amendment under § 216.39 has fied by the Regional Director or Office been submitted to the Office Director Director. and has been found complete; [61 FR 21933, May 10, 1996] (ii) The recipient agrees to hold the marine mammal in conformance with all applicable requirements and stand- Subpart D—Special Exceptions ards; and § 216.30 [Reserved] (iii) The recipient acknowledges that the marine mammal is subject to sei- § 216.31 Definitions. zure by the Office Director: For the purpose of this subpart, the (A) If, at any time pending issuance definitions set forth in 50 CFR part 217 of the major amendment or permit, the shall apply to all threatened and en- Office Director determines that seizure dangered marine mammals, unless a is necessary in the interest of the more restrictive definition exists under health or welfare of the marine mam- the MMPA or part 216. mal; (B) If the major amendment or per- [61 FR 21935, May 10, 1996] mit is denied; or (C) If the recipient is issued a notice § 216.32 Scope. of violation and assessment, or is sub- The regulations of this subpart apply ject to permit sanctions, in accordance to: with 15 CFR part 904. (a) All marine mammals and marine (4) There shall be no remuneration mammal parts taken or born in cap- associated with any transfer, provided tivity after December 20, 1972; and that, the transferee may reimburse the (b) All marine mammals and marine transferor for any and all costs associ- mammal parts that are listed as ated with the rehabilitation and trans- threatened or endangered under the port of the marine mammal. ESA. (5) Marine mammals undergoing re- [61 FR 21935, May 10, 1996] habilitation or pending disposition under this section shall not be subject § 216.33 Permit application submis- to public display, unless such activities sion, review, and decision proce- are specifically authorized by the Re- dures. gional Director or the Office Director, (a) Application submission. Persons and conducted consistent with the re- seeking a special exemption permit quirements applicable to public dis- under this subpart must submit an ap- play. Such marine mammals shall not plication to the Office Director. The be trained for performance or be in- application must be signed by the ap- cluded in any aspect of a program in- plicant, and provide in a properly for- volving interaction with the public; matted manner all information nec- and essary to process the application. Writ- (6) Marine mammals undergoing re- ten instructions addressing informa- habilitation shall not be subject to in- tion requirements and formatting may trusive research, unless such activities be obtained from the Office Director are specifically authorized by the Of- upon request. fice Director in consultation with the (b) Applications to export living marine Marine Mammal Commission and its mammals. For applicants seeking a spe- Committee of Scientific Advisors on cial exception permit to export living Marine Mammals, and are conducted marine mammals, the application pursuant to a scientific research per- must: mit. (1) Be submitted through the Conven- (d) Reporting. In addition to the re- tion on International Trade in Endan- port required under § 216.22(b), the per- gered Fauna and Flora management son authorized to hold marine mam- authority of the foreign government mals for rehabilitation must submit re- or, if different, the appropriate agency ports to the Regional Director or Office or agencies of the foreign government

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that exercises oversight over marine (Commission) and its Committee of mammals. Scientific Advisors on Marine Mam- (2) Include a certification from the mals (Committee) in making these ini- foreign government that: tial, and any subsequent, determina- (i) The information set forth in the tions. application is accurate; (4) Incomplete applications will be (ii) The laws and regulations of the returned with explanation. If the appli- foreign governmentinvolved allow en- cant fails to resubmit a complete appli- forcement of the terms and conditions cation or correct the identified defi- of the permit, and that the foreign gov- ciencies within 60 days, the application ernment will enforce all terms and con- will be deemed withdrawn. Applica- ditions; and tions that propose activities incon- (iii) The foreign government involved sistent with this subpart will be re- will afford comity to any permit turned with explanation, and will not amendment, modification, suspension be considered further. or revocation decision. (d) Notice of receipt and application re- (c) Initial review. (1) NMFS will notify view. (1) Upon receipt of a valid, com- the applicant of receipt of the applica- plete application, and the preparation tion. of any NEPA documentation that has (2) During the initial review, the Of- been determined initially to be re- fice Director will determine: quired, the Office Director will publish (i) Whether the application is com- a notice of receipt in the FEDERAL REG- plete. ISTER. The notice will: (ii) Whether the proposed activity is (i) Summarize the application, infor purposes authorized under this sub- cluding: part. (A) The purpose of the request; (iii) If the proposed activity is for en- (B) The species and number of marine hancement purposes, whether the spe- mammals; cies or stock identified in the applica- (C) The type and manner of special tion is in need of enhancement for its exception activity proposed; survival or recovery and whether the (D) The location(s) in which the ma- proposed activity will likely succeed in rine mammals will be taken, from its objectives. which they will be imported, or to (iv) Whether the activities proposed which they will be exported; and are to be conducted consistent with the (E) The requested period of the per- permit restrictions and permit specific mit. conditions as described in § 216.35 and (ii) List where the application is § 216.36(a). available for review. (v) Whether sufficient information is (iii) Invite interested parties to sub- included regarding the environmental mit written comments concerning the impact of the proposed activity to en- application within 30 days of the date able the Office Director: of the notice. (A) To make an initial determination (iv) Include a NEPA statement that under the National Environmental Pol- an initial determination has been made icy Act (NEPA) as to whether the pro- that the activity proposed is categori- posed activity is categorically excluded cally excluded from the requirement to from preparation of further environ- prepare an EA or EIS, that an EA was mental documentation, or whether the prepared resulting in a finding of no preparation of an environmental as- significant impact, or that a final EIS sessment (EA) or environmental im- has been prepared and is available for pact statement (EIS) is appropriate or review. necessary; and (2) The Office Director will forward a (B) To prepare an EA or EIS if an ini- copy of the complete application to the tial determination is made by the Of- Commission for comment. If no com- fice Director that the activity proposed ments are received within 45 days (or is not categorically excluded from such such longer time as the Office Director requirements. may establish) the Office Director will (3) The Office Director may consult consider the Commission to have no with the Marine Mammal Commission objection to issuing a permit.

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(3) The Office Director may consult (iv) Any other information or data with any other person, institution, or that the Office Director deems rel- agency concerning the application. evant. (4) Within 30 days of publication of (3) If the permit is issued, upon re- the notice of receipt in the FEDERAL ceipt, the holder must date and sign REGISTER, any interested party may the permit, and return a copy of the submit written comments or may re- original to the Office Director. The quest a public hearing on the applica- permit shall be effective upon the per- tion. mit holder’s signing of the permit. In (5) If the Office Director deems it ad- signing the permit, the holder: visable, the Office Director may hold a (i) Agrees to abide by all terms and public hearing within 60 days of publi- conditions set forth in the permit, and cation of the notice of receipt in the all restrictions and relevant regula- FEDERAL REGISTER. Notice of the date, tions under this subpart; and time, and place of the public hearing (ii) Acknowledges that the authority will be published in the FEDERAL REG- to conduct certain activities specified ISTER not less than 15 days in advance in the permit is conditional and subject of the public hearing. Any interested to authorization by the Office Director. person may appear in person or (4) Notice of the decision of the Office through representatives and may sub- Director shall be published in the FED- mit any relevant material, data, views, ERAL REGISTER within 10 days after the or comments. A summary record of the date of permit issuance or denial and hearing will be kept. (6) The Office Director may extend shall indicate where copies of the per- the period during which any interested mit, if issued, may be reviewed or ob- party may submit written comments. tained. If the permit issued involves Notice of the extension must be pub- marine mammals listed as endangered or threatened under the ESA, the no- lished in the FEDERAL REGISTER within 60 days of publication of the notice of tice shall include a finding by the Of- fice Director that the permit: receipt in the FEDERAL REGISTER. (7) If, after publishing a notice of re- (i) Was applied for in good faith; ceipt, the Office Director determines (ii) If exercised, will not operate to on the basis of new information that an the disadvantage of such endangered or EA or EIS must be prepared, the Office threatened species; and Director must deny the permit unless (iii) Is consistent with the purposes an EA is prepared with a finding of no and policy set forth in section 2 of the significant impact. If a permit is de- ESA. nied under these circumstances the ap- (5) If the permit is denied, the Office plication may be resubmitted with in- Director shall provide the applicant formation sufficient to prepare an EA with an explanation for the denial. or EIS, and will be processed as a new (6) Under the MMPA, the Office Di- application. rector may issue a permit for scientific (e) Issuance or denial procedures. (1) research before the end of the public Within 30 days of the close of the pub- comment period if delaying issuance lic hearing or, if no public hearing is could result in injury to a species, held, within 30 days of the close of the stock, or individual, or in loss of public comment period, the Office Di- unique research opportunities. The Of- rector will issue or deny a special ex- fice Director also may waive the 30-day ception permit. comment period required under the (2) The decision to issue or deny a ESA in an emergency situation where permit will be based upon: the health or life of an endangered or (i) All relevant issuance criteria set threatened marine mammal is threat- forth at § 216.34; ened and no reasonable alternative is (ii) All purpose-specific issuance cri- available. If a permit is issued under teria as appropriate set forth at § 216.41, these circumstances, notice of such § 216.42, and § 216.43; issuance before the end of the comment (iii) All comments received or views period shall be published in the FED- solicited on the permit application; ERAL REGISTER within 10 days of and issuance.

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(7) The applicant or any party op- § 216.35 Permit restrictions. posed to a permit may seek judicial re- The following restrictions shall apply view of the terms and conditions of to all permits issued under this sub- such permit or of a decision to deny part: such permit. Review may be obtained (a) The taking, importation, export, by filing a petition for review with the or other permitted activity involving appropriate U.S. District Court as pro- marine mammals and marine mammal vided for by law. parts shall comply with the regulations of this subpart. [61 FR 21935, May 10, 1996] (b) The maximum period of any special exception permit issued, or any § 216.34 Issuance criteria. major amendment granted, is five (a) For the Office Director to issue years from the effective date of the any permit under this subpart, the ap- permit or major amendment. In ac- plicant must demonstrate that: cordance with the provisions of § 216.39, (1) The proposed activity is humane the period of a permit may be extended and does not present any unnecessary by a minor amendment up to 12 months risks to the health and welfare of ma- beyond that established in the original rine mammals; permit. (2) The proposed activity is con- (c) Except as provided for in sistent with all restrictions set forth at § 216.41(c)(1)(v), marine mammals or marine mammal parts imported under § 216.35 and any purpose-specific restric- the authority of a permit must be tions as appropriate set forth at taken or imported in a humane man- § 216.41, § 216.42, and § 216.43; ner, and in compliance with the Acts (3) The proposed activity, if it in- and any applicable foreign law. Impor- volves endangered or threatened ma- tation of marine mammals and marine rine mammals, will be conducted con- mammal parts is subject to the provi- sistent with the purposes and policies sions of 50 CFR part 14. set forth in section 2 of the ESA; (d) The permit holder shall not take (4) The proposed activity by itself or from the wild any marine mammal in combination with other activities, which at the time of taking is either will not likely have a significant ad- unweaned or less than eight months verse impact on the species or stock; old, or is a part of a mother-calf/pup (5) Whether the applicant’s expertise, pair, unless such take is specifically facilities, and resources are adequate authorized in the conditions of the spe- to accomplish successfully the objec- cial exception permit. Additionally, tives and activities stated in the appli- the permit holder shall not import any cation; marine mammal that is pregnant or lactating at the time of taking or im- (6) If a live animal will be held cap- port, or is unweaned or less than eight tive or transported, the applicant’s months old unless such import is spe- qualifications, facilities, and resources cifically authorized in the conditions are adequate for the proper care and of the special exception permit. maintenance of the marine mammal; (e) Captive marine mammals shall and not be released into the wild unless (7) Any requested import or export specifically authorized by the Office will not likely result in the taking of Director under a scientific research or marine mammals or marine mammal enhancement permit. parts beyond those authorized by the (f) The permit holder is responsible permit. for all activities of any individual who (b) The opinions or views of scientists is operating under the authority of the or other persons or organizations permit; knowledgeable of the marine mammals (g) Individuals conducting activities that are the subject of the application authorized under the permit must pos- or of other matters germane to the ap- sess qualifications commensurate with plication will be considered. their duties and responsibilities, or must be under the direct supervision of [61 FR 21936, May 10, 1996] a person with such qualifications;

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(h) Persons who require state or Fed- (b) Other conditions. In addition to eral licenses to conduct activities au- the specific conditions imposed pursu- thorized under the permit must be duly ant to paragraph (a) of this section, the licensed when undertaking such activi- Office Director shall specify any other ties; permit conditions deemed appropriate. (i) Special exception permits are not transferable or assignable to any other [61 FR 21937, May 10, 1996] person, and a permit holder may not § 216.37 Marine mammal parts. require any direct or indirect com- pensation from another person in re- With respect to marine mammal turn for requesting authorization for parts acquired by take or import au- such person to conduct the taking, im- thorized under a permit issued under port, or export activities authorized this subpart: under the subject permit; (a) Marine mammal parts are (j) The permit holder or designated transferrable if: agent shall possess a copy of the per- (1) The person transferring the part mit when engaged in a permitted activ- receives no remuneration of any kind ity, when the marine mammal is in for the marine mammal part; transit incidental to such activity, and (2) The person receiving the marine whenever marine mammals or marine mammal part is: mammal parts are in the possession of (i) An employee of NMFS, the U.S. the permit holder or agent. A copy of Fish and Wildlife Service, or any other the permit shall be affixed to any con- governmental agency with conserva- tainer, package, enclosure, or other tion and management responsibilities, means of containment, in which the who receives the part in the course of marine mammals or marine mammal their official duties; parts are placed for purposes of transit, (ii) A holder of a special exception supervision, or care. For marine mam- permit which authorizes the take, im- mals held captive and marine mammal port, or other activity involving the parts in storage, a copy of the permit possession of a marine mammal part of shall be kept on file in the holding or the same species as the subject part; or storage facility. (iii) In the case of marine mammal [61 FR 21936, May 10, 1996] parts from a species that is not depleted, endangered or threatened, a § 216.36 Permit conditions. person who is authorized under section (a) Specific conditions. (1) Permits 112(c) of the MMPA and subpart C of issued under this subpart shall contain this part to take or import marine specific terms and conditions deemed mammals or marine mammal parts; appropriate by the Office Director, in- (iv) Any other person specifically au- cluding, but not limited to: thorized by the Regional Director, con- (i) The number and species of marine sistent with the requirements of para- mammals that are authorized to be graphs (a)(1) and (a)(3) through (6) of taken, imported, exported, or other- this section. wise affected; (3) The marine mammal part is trans- (ii) The manner in which marine ferred for the purpose of scientific re- mammals may be taken according to search, maintenance in a properly type of take; curated, professionally accredited sci- (iii) The location(s) in which the ma- entific collection, or education, pro- rine mammals may be taken, from vided that, for transfers for edu- which they may be imported, or to cational purposes, the recipient is a which they may be exported, as appli- museum, educational institution or cable, and, for endangered or threat- equivalent that will ensure that the ened marine mammal species to be im- part is available to the public as part ported or exported, the port of entry or of an educational program; export; (4) A unique number assigned by the (iv) The period during which the per- permit holder is marked on or affixed mit is valid. to the marine mammal part or con- (2) [Reserved] tainer;

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(5) The person receiving the marine to the marine mammal specimen or mammal part agrees that, as a condi- container; tion of receipt, subsequent transfers (3) The marine mammal part is ex- may only occur subject to the provi- ported or reimported in compliance sions of paragraph (a) of this section; with all applicable domestic and for- and eign laws; (6) Within 30 days after the transfer, (4) If exported or reimported for edu- the person transferring the marine cational purposes, the recipient is a mammal part notifies the Regional Di- museum, educational institution, or rector of the transfer, including a de- equivalent that will ensure that the scription of the part, the person to part is available to the public as part whom the part was transferred, the of an educational program; and purpose of the transfer, certification (5) Special reports are submitted that the recipient has agreed to comply within 30 days after both export and re- with the requirements of paragraph (a) import as required by the Office Direc- of this section for subsequent transfers, tor under § 216.38. and, if applicable, the recipient’s per- [61 FR 21937, May 10, 1996] mit number. (b) Marine mammal parts may be § 216.38 Reporting. loaned to another person for a purpose All permit holders must submit an- described in paragraph (a)(3) of this nual, final, and special reports in ac- section and without the agreement and cordance with the requirements estab- notification required under paragraphs lished in the permit, and any reporting (a)(5) and (6) of this section, if: format established by the Office Direc- (1) A record of the loan is main- tor. tained; and [61 FR 21937, May 10, 1996] (2) The loan is for not more than one year. Loans for a period greater than 12 § 216.39 Permit amendments. months, including loan extensions or (a) General. Special exception permits renewals, require notification of the may be amended by the Office Direc- Regional Director under paragraph tor. Major and minor amendments may (a)(6). be made to permits in response to, or (c) Unless other disposition is speci- independent of, a request from the per- fied in the permit, a holder of a special mit holder. Amendments must be con- exception permit may retain marine sistent with the Acts and comply with mammal parts not destroyed or other- the applicable provisions of this sub- wise disposed of during or after a sci- part. entific research or enhancement activ- (1) A major amendment means any ity, if such marine mammal parts are: change to the permit specific condi- (1) Maintained as part of a properly tions under § 216.36(a) regarding: curated, professionally accredited col- (i) The number and species of marine lection; or mammals that are authorized to be (2) Made available for purposes of sci- taken, imported, exported, or other- entific research or enhancement at the wise affected; request of the Office Director. (ii) The manner in which these ma- (d) Marine mammal parts may be ex- rine mammals may be taken, imported, ported and subsequently reimported by exported, or otherwise affected, if the a permit holder or subsequent author- proposed change may result in an in- ized recipient, for the purpose of sci- creased level of take or risk of adverse entific research, maintenance in a impact; properly curated, professionally ac- (iii) The location(s) in which the ma- credited scientific collection, or edu- rine mammals may be taken, from cation, provided that: which they may be imported, and to (1) The permit holder or other person which they may be exported, as appli- receives no remuneration for the ma- cable; and rine mammal part; (iv) The duration of the permit, if the (2) A unique number assigned by the proposed extension would extend the permit holder is marked on or affixed duration of the permit more than 12

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months beyond that established in the (b) All special exception permits are original permit. subject to suspension, revocation, (2) A minor amendment means any modification and denial in accordance amendment that does not constitute a with the provisions of subpart D of 15 major amendment. CFR part 904. (b) Amendment requests and proposals. (1) Requests by a permit holder for an [61 FR 21938, May 10, 1996] amendment must be submitted in writ- § 216.41 Permits for scientific research ing and include the following: and enhancement. (i) The purpose and nature of the amendment; In addition to the requirements (ii) Information, not previously sub- under §§ 216.33 through 216.38, permits mitted as part of the permit applica- for scientific research and enhance- tion or subsequent reports, necessary ment are governed by the following re- to determine whether the amendment quirements: satisfies all issuance criteria set forth (a) Applicant. (1) For each application at § 216.34, and, as appropriate, § 216.41, submitted under this section, the appli- § 216.42, and § 216.43. cant shall be the principal investigator (iii) Any additional information re- responsible for the overall research or quired by the Office Director for pur- enhancement activity. If the research poses of reviewing the proposed amend- or enhancement activity will involve a ment. periodic change in the principal inves- (2) If an amendment is proposed by tigator or is otherwise controlled by the Office Director, the permit holder and dependent upon another entity, the will be notified of the proposed amend- applicant may be the institution, gov- ment, together with an explanation. ernmental entity, or corporation re- (c) Review of proposed amendments—(1) sponsible for supervision of the prin- Major amendments. The provisions of cipal investigator. § 216.33(d) and (e) governing notice of (2) For any scientific research involv- receipt, review and decision shall apply ing captive maintenance, the applica- to all proposed major amendments. tion must include supporting docu- (2) Minor amendments. (i) After re- mentation from the person responsible viewing all appropriate information, for the facility or other temporary en- the Office Director will provide the closure. permit holder with written notice of (b) Issuance Criteria. For the Office the decision on a proposed or requested Director to issue any scientific re- amendment, together with an expla- search or enhancement permit, the ap- nation for the decision. plicant must demonstrate that: (ii) If the minor amendment extends (1) The proposed activity furthers a the duration of the permit 12 months bona fide scientific or enhancement or less from that established in the purpose; original permit, notice of the minor (2) If the lethal taking of marine amendment will be published in the mammals is proposed: FEDERAL REGISTER within 10 days from (i) Non-lethal methods for conducting the date of the Office Director’s deci- the research are not feasible; and sion. (ii) For depleted, endangered, or (iii) A minor amendment will be ef- threatened species, the results will di- fective upon a final decision by the Of- rectly benefit that species or stock, or fice Director. will fulfill a critically important re- [61 FR 21937, May 10, 1996] search need. (3) Any permanent removal of a ma- § 216.40 Penalties and permit sanc- rine mammal from the wild is con- tions. sistent with any applicable quota es- (a) Any person who violates any pro- tablished by the Office Director. vision of this subpart or permit issued (4) The proposed research will not thereunder is subject to civil and likely have significant adverse effects criminal penalties, permit sanctions on any other component of the marine and forfeiture as authorized under the ecosystem of which the affected species Acts, and 15 CFR part 904. or stock is a part.

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(5) For species or stocks designated under section 4(f) of the ESA for the or proposed to be designated as de- species or stock; or pleted, or listed or proposed to be listed (B) If there is no conservation or re- as endangered or threatened: covery plan, with the Office Director’s (i) The proposed research cannot be evaluation of the actions required to accomplished using a species or stock enhance the survival or recovery of the that is not designated or proposed to be species or stock in light of the factors designated as depleted, or listed or pro- that would be addressed in a conserva- posed to be listed as threatened or en- tion or recovery plan. dangered; (iv) An enhancement permit may au- (ii) The proposed research, by itself thorize the captive maintenance of a or in combination with other activities marine mammal from a threatened, en- will not likely have a long-term direct dangered, or depleted species or stock or indirect adverse impact on the spe- only if the Office Director determines cies or stock; that: (iii) The proposed research will ei- (A) The proposed captive mainte- ther: nance will likely contribute directly to (A) Contribute to fulfilling a research the survival or recovery of the species need or objective identified in a species or stock by maintaining a viable gene recovery or conservation plan, or if pool, increasing productivity, pro- there is no conservation or recovery viding necessary biological informa- plan in place, a research need or objection, or establishing animal reserves tive identified by the Office Director in required to support directly these ob- stock assessments established under jectives; and section 117 of the MMPA; (B) The expected benefit to the spe- (B) Contribute significantly to under- cies or stock outweighs the expected standing the basic biology or ecology benefits of alternatives that do not re- of the species or stock, or to identi- quire removal of marine mammals fying, evaluating, or resolving con- from the wild. servation problems for the species or (v) The Office Director may authorize stock; or the public display of marine mammals (C) Contribute significantly to ful- held under the authority of an en- filling a critically important research hancement permit only if: need. (A) The public display is incidental (6) For proposed enhancement activi- to the authorized captive maintenance; ties: (B) The public display will not inter- (i) Only living marine mammals and fere with the attainment of the sur- marine mammal parts necessary for vival or recovery objectives; enhancement of the survival, recovery, (C) The marine mammals will be held or propagation of the affected species consistent with all requirements and or stock may be taken, imported, ex- standards that are applicable to marine ported, or otherwise affected under the mammals held under the authority of authority of an enhancement permit. the Acts and the Animal Welfare Act, Marine mammal parts would include in unless the Office Director determines this regard clinical specimens or other that an exception is necessary to im- biological samples required for the con- plement an essential enhancement ac- duct of breeding programs or the diag- tivity; and nosis or treatment of disease. (D) The marine mammals will be ex- (ii) The activity will likely concluded from any interactive program tribute significantly to maintaining or and will not be trained for perform- increasing distribution or abundance, ance. enhancing the health or welfare of the (vi) The Office Director may author- species or stock, or ensuring the sur- ize non-intrusive scientific research to vival or recovery of the affected species be conducted while a marine mammal or stock in the wild. is held under the authority of an en- (iii) The activity is consistent with: hancement permit, only if such sci- (A) An approved conservation plan entific research: developed under section 115(b) of the (A) Is incidental to the permitted en- MMPA or recovery plan developed hancement activities; and

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(B) Will not interfere with the attain- what is necessary to conduct the re- ment of the survival or recovery objec- search (i.e., educational and commer- tives. cial photography). (c) Restrictions. (1) The following re- (2) Any marine mammal or progeny strictions apply to all scientific re- held in captive maintenance under an search permits issued under this sub- enhancement permit shall be returned part: to its natural habitat as soon as fea- (i) Research activities must be con- sible, consistent with the terms of the ducted in the manner authorized in the enhancement permit and the objectives permit. of an approved conservation or recov- (ii) Research results shall be pub- ery plan. In accordance with section lished or otherwise made available to 10(j) of the ESA, the Office Director the scientific community in a reason- may authorize the release of any popu- able period of time. lation of an endangered or threatened (iii) Research activities must be con- species outside the current range of ducted under the direct supervision of such species if the Office Director de- the principal investigator or a co-in- termines that such release will further vestigator identified in the permit. the conservation of such species. (iv) Personnel involved in research [61 FR 21938, May 10, 1996] activities shall be reasonable in number and limited to: § 216.42 Photography. [Reserved] (A) Individuals who perform a function directly supportive of and nec- § 216.43 Public display. [Reserved] essary to the permitted research activ- § 216.44 Applicability/transition. ity; and (B) Support personnel included for (a) General. The regulations of this the purpose of training or as backup subpart are applicable to all persons, personnel for persons described in para- including persons holding permits or graph (c)(1)(iv)(A). other authorizing documents issued be- (v) Any marine mammal part im- fore June 10, 1996, by NMFS for the ported under the authority of a sci- take, import, export, or conduct of any entific research permit must not have otherwise prohibited activity involving been obtained as the result of a lethal a marine mammal or marine mammal taking that would be inconsistent with part for special exception purposes. the Acts, unless authorized by the Of- (b) Scientific research. Any intrusive fice Director. research as defined in § 216.3, initiated (vi) Marine mammals held under a after June 10, 1996, must be authorized permit for scientific research shall not under a scientific research permit. In- be placed on public display, included in trusive research authorized by the Of- an interactive program or activity, or fice Director to be conducted on cap- trained for performance unless such active marine mammals held for public tivities: display purposes prior to June 10, 1996, (A) Are necessary to address sci- must be authorized under a scientific entific research objectives and have research permit one year after June 10, been specifically authorized by the Of- 1996. fice Director under the scientific re- [61 FR 21939, May 10, 1996] search permit; and (B) Are conducted incidental to and § 216.45 General Authorization for do not in any way interfere with the Level B harassment for scientific permitted scientific research; and research. (C) Are conducted in a manner con- (a) General Authorization. (1) Persons sistent with provisions applicable to are authorized under section public display, unless exceptions are 104(c)(3)(C) of the MMPA to take ma- specifically authorized by the Office rine mammals in the wild by Level B Director. harassment, as defined in § 216.3, for (vii) Any activity conducted inci- purposes of bona fide scientific re- dental to the authorized scientific research Provided, That: search activity must not involve any (i) They submit a letter of intent in taking of marine mammals beyond accordance with the requirements of

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paragraph (b) of this section, receive is responsible for the overall research confirmation that the General Author- project, or the institution, govern- ization applies in accordance with mental entity, or corporation respon- paragraph (c) of this section, and com- sible for supervision of the principal in- ply with the terms and conditions of vestigator. paragraph (d) of this section; or (2) The letter of intent must include (ii) If such marine mammals are list- the following information: ed as endangered or threatened under (i) The name, address, telephone the ESA, they have been issued a per- number, qualifications and experience mit under Section 10(a)(1)(A) of the of the applicant and any co-investi- ESA and implementing regulations at gator(s) to be conducting the proposed 50 CFR parts 217–227, particularly at research, and a curriculum vitae for § 222.23 through § 222.28, to take marine each, including a list of publications by mammals in the wild for the purpose of each such investigator relevant to the scientific research, the taking author- objectives, methodology, or other as- ized under the permit involves such pects of the proposed research; Level B harassment of marine mam- (ii) The species or stocks of marine mals or marine mammal stocks, and mammals (common and scientific they comply with the terms and condi- names) that are the subject of the sci- tions of that permit. entific research and any other species (2) Except as provided under para- or stock of marine mammals that may graph (a)(1)(ii) of this section, no tak- be harassed during the conduct of the ing, including harassment, of marine research; mammals listed as threatened or en- (iii) The geographic location(s) in dangered under the ESA is authorized which the research is to be conducted, under the General Authorization. Ma- e.g., geographic name or lat./long.; rine mammals listed as endangered or (iv) The period(s) of time over which threatened under the ESA may be the research will be conducted (up to taken for purposes of scientific re- five years), including the field sea- search only after issuance of a permit son(s) for the research, if applicable; for such activities pursuant to the (v) The purpose of the research, in- ESA. cluding a description of how the pro- (3) The following types of research posed research qualifies as bona fide re- activities will likely qualify for inclu- search as defined in § 216.3; and sion under the General Authorization: (vi) The methods to be used to con- Photo-identification studies, behav- duct the research. ioral observations, and vessel and aer- (3) The letter of intent must be ial population surveys (except aerial signed, dated, and certified by the ap- surveys over pinniped rookeries at alti- plicant as follows: tudes of less than 1,000 ft). In accordance with section 104(c)(3)(C) of (b) Letter of intent. Except as provided the Marine Mammal Protection Act of 1972, under paragraph (a)(1)(ii) of this sec- as amended (16 U.S.C. 1361 et seq.) and imple- tion, any person intending to take ma- menting regulations (50 CFR part 216), I rine mammals in the wild by Level B hereby notify the National Marine Fisheries harassment for purposes of bona fide Service of my intent to conduct research in- scientific research under the General volving only Level B harassment on marine Authorization must submit, at least 60 mammals in the wild, and request confirmation that the General Authorization for days before commencement of such re- Level B Harassment for Scientific Research search, a letter of intent by certified applies to the proposed research as described return/receipt mail to the Chief, Per- herein. I certify that the information in this mits Division, F/PR1, Office of Pro- letter of intent is complete, true, and correct tected Resources, NMFS, 1335 East- to the best of my knowledge and belief, and West Highway, Silver Spring, MD I understand that any false statement may 20910–3226. subject me to the criminal penalties of 18 (1) The letter of intent must be sub- U.S.C. 1001, or penalties under the MMPA and implementing regulations. I acknowl- mitted by the principal investigator edge and accept that authority to conduct (who shall be deemed the applicant). scientific research on marine mammals in For purposes of this section, the prin- the wild under the General Authorization is cipal investigator is the individual who a limited conditional authority restricted to

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Level B harassment only, and that any other (2) Annual reports of activities con- take of marine mammals, including the conducted under the General Authoriza- duct of any activity that has the potential to tion must be submitted to the Chief, injure marine mammals (i.e., Level A harass- Permits Division (address listed in ment), may subject me to penalties under the MMPA and implementing regulations. paragraph (b) of this section) within 90 days of completion of the last field sea- (c) Confirmation that the General Au- son(s) during the calendar year or, if thorization applies or notification of per- the research is not conducted during a mit requirement. (1) Not later than 30 defined field season, no later than 90 days after receipt of a letter of intent days after the anniversary date of the as described in paragraph (b) of this letter of confirmation issued under section, the Chief, Permits Division, paragraph (c) of this section. Annual NMFS will issue a letter to the appli- reports must include: cant either: (i) A summary of research activities (i) Confirming that the General Au- conducted; thorization applies to the proposed sci- (ii) Identification of the species and entific research as described in the let- number of each species taken by Level ter of intent; B harassment; (ii) Notifying the applicant that all (iii) An evaluation of the progress or part of the research described in the made in meeting the objectives of the letter of intent is likely to result in a research as described in the letter of taking of a marine mammal in the wild intent; and involving other than Level B harass- (iv) Any incidental scientific, edu- ment and, as a result, cannot be con- cational, or commercial uses of photo- ducted under the General Authoriza- graphs, videotape, and film obtained as tion, and that a scientific research per- a result of or incidental to the research mit is required to conduct all or part of and if so, names of all photographers. the subject research; or (3) Authorization to conduct research (iii) Notifying the applicant that the under the General Authorization is for letter of intent fails to provide suffi- the period(s) of time identified in the cient information and providing a de- letter of intent or for a period of 5 scription of the deficiencies, or noti- years from the date of the letter of fying the applicant that the proposed confirmation issued under paragraph research as described in the letter of (c) of this section, whichever is less, intent is not bona fide research as de- unless extended by the Director or fined in § 216.3. modified, suspended, or revoked in ac- (2) A copy of each letter of intent and cordance with paragraph (e) of this sec- letter confirming that the General Au- tion; thorization applies or notifying the ap- (4) Activities conducted under the plicant that it does not apply will be General Authorization may only be forwarded to the Marine Mammal Com- conducted under the on-site super- mission. vision of the principal investigator or (3) Periodically, NMFS will publish a co-investigator(s) named in the letter summary document in the FEDERAL of intent. All personnel involved in the REGISTER notifying the public of let- conduct of activities under the General ters of confirmation issued. Authorization must perform a function (d) Terms and conditions. Persons directly supportive of and necessary for issued letters of confirmation in ac- the research being conducted, or be one cordance with paragraph (c) of this sec- of a reasonable number of support per- tion are responsible for complying with sonnel included for the purpose of the following terms and conditions: training or as back-up personnel; (1) Activities are limited to those (5) The principal investigator must conducted for the purposes, by the notify the appropriate Regional Direc- means, in the locations, and during the tor, NMFS, (Regional Director) in writ- periods of time described in the letter ing at least 2 weeks before initiation of of intent and acknowledged as author- on-site activities. The Regional Direc- ized under the General Authorization tor shall consider this information in in the confirmation letter sent pursu- efforts to coordinate field research ac- ant to paragraph (c) of this section; tivities to minimize adverse impacts

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on marine mammals in the wild. The (i) The letter of intent included false principal investigator must cooperate information or statements of a mate- with coordination efforts by the Re- rial nature; gional Director in this regard; (ii) The research does not constitute (6) If research activities result in a bona fide scientific research; taking which exceeds Level B harass- (iii) Research activities result in ment, the applicant shall: takings of marine mammals other than (i) Report the taking within 12 hours by Level B harassment; to the Director, Office of Protected Re- (iv) Research activities differ from sources, or his designee as set forth in those described in the letter of intent the letter authorizing research; and submitted by the applicant and letter (ii) Temporarily discontinue for 72 of confirmation issued by NMFS; or hours all field research activities that (v) The applicant violates any term resulted in the taking. During this or condition set forth in this section. time period, the applicant shall consult (2) Any suspension, revocation, or with NMFS as to the circumstances modification is subject to the require- surrounding the taking and any pre- ments of 15 CFR part 904. cautions necessary to prevent future [59 FR 50376, Oct. 3, 1994] taking, and may agree to amend the research protocol, as deemed necessary § 216.46 U.S. citizens on foreign flag by NMFS. vessels operating under the Inter- (7) NMFS may review scientific re- national Dolphin Conservation Pro- search conducted pursuant to the Gen- gram. eral Authorization. If requested by The MMPA’s provisions do not apply NMFS, the applicant must cooperate to a citizen of the United States who with any such review and shall: incidentally takes any marine mam- (i) Allow any employee of NOAA or mal during fishing operations in the any other person designated by the Di- ETP which are outside the U.S. exclu- rector, Office of Protected Resources to sive economic zone (as defined in sec- observe research activities; and tion 3 of the Magnuson-Stevens Fish- (ii) Provide any documents or other ery Conservation and Management Act information relating to the scientific (16 U.S.C. 1802)), while employed on a research; fishing vessel of a harvesting nation (8) Any photographs, videotape, or that is participating in, and in compli- film obtained during the conduct of re- ance with, the IDCP. search under the General Authoriza- [65 FR 56, Jan. 3, 2000] tion must be identified by a statement that refers to the General Authoriza- § 216.47 Access to marine mammal tis- tion or ESA permit number, and in- sue, analyses, and data. cludes the file number provided by (a) Applications for the National Ma- NMFS in the confirmation letter, the rine Mammal Tissue Bank samples name of the photographer, and the date (NMMTB). (1) A principal investigator, the image was taken. This statement contributor or holder of a scientific re- must accompany the image(s) in all search permit issued in accordance subsequent uses or sales. The annual with the provisions of this subpart may report must note incidental scientific, apply for access to a tissue specimen educational, or commercial uses of the sample in the NMMTB. Applicants for images, and if there are any such uses, tissue specimen samples from the the names of all photographers; and NMMTB must submit a signed written (9) Persons conducting scientific re- request with attached study plan to search under authority of the General the Marine Mammal Health and Authorization may not transfer or as- Stranding Response Program sign any authority granted thereunder (MMHSRP) Program Manager, Office of to any other person. Protected Resources, NMFS. The writ- (e) Suspension, revocation, or modifica- ten request must include: tion. (1) NMFS may suspend, revoke, or (i) A clear and concise statement of modify the authority to conduct sci- the proposed use of the banked tissue entific research under the General Au- specimen. The applicant must dem- thorization if: onstrate that the proposed use of the

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banked tissue is consistent with the quencing) will be archived in the Na- goals of the NMMTB and the tional Center for biotechnology Infor- MMHSRP. mation’s GenBank. Sequence acces- (A) The goals of the MMHSRP are to sions in GenBank should document the facilitate the collection and dissemina- source, citing a NIST field number that tion of reference data on marine mam- indentifies the animal; and mals and health trends of marine mam- (ix) Agreement that credit and ac- mal populations in the wild; to cor- knowledgment will be given to U.S. relate the health of marine mammals Fish and Wildlife Service (USFWS), US and marine mammal populations in the Geologic Service (USGS), National In- wild with available data on physical, stitute of Standards and Technology chemical, and biological environmental (NIST), the Minerals Management parameters; and to coordinate effective Service (MMS), NMFS, the NMMTB, responses to unusual mortality events. and the collector for use of banked tis- (B) The goal of the NMMTB is to sues. maintain quality controlled marine (2) The applicant shall insert the fol- mammal tissues that will permit retro- lowing acknowledgment in all publica- spective analyses to determine envi- tions, abstracts, or presentations based ronmental trends of contaminants and on research using the banked tissue: other analytes of interest and that will provide the highest quality samples for The specimens used in this study were collected by [the contributor] and provided by analyses using new and innovative the National Marine Mammal Tissue Bank, techniques. which is maintained in the National Biomon- (ii) A copy of the applicant’s sci- itoring Specimen Bank at NIST and which is entific research permit. The applicant operated under the direction of NMFS with must demonstrate that the proposed the collaboration of MMS, USGS, USFWS, use of the banked tissue is authorized and NIST through the Marine Mammal by the permit; Health and Stranding Response Program (iii) Name of principal investigator, [and the Alaska Marine Mammal Tissue Ar- chival Project if the samples are from Alas- official title, and affiliated research or ka]. academic organization; (iv) Specific tissue sample and quan- (3) Upon submission of a complete ap- tity desired; plication, the MMHSRP Program Man- (v) Research facility where analyses ager will send the request and attached will be conducted. The applicant must study plan to the following entities demonstrate that the research facility which will function as the review com- will follow the Analytical Quality As- mittee: surance (AQA) program, which was de- (i) Appropriate Federal agency signed to ensure the accuracy, preci- (NMFS or USFWS) marine mammal sion, level of detection, and inter- management office for that particular compatibility of data resulting from species; and chemical analyses of marine mammal (ii) Representatives of the NMMTB tissues. The AQA consists of annual Collaborating Agencies (NMFS, USFS, interlaboratory comparisons and the USGS Biological Resources Division, development of control materials and and NIST) If no member of the review standard reference materials for ma- committee is an expert in the field that rine mammal tissues; is related to the proposed research ac- (vi) Verification that funding is tivity, any member may request an available to conduct the research; outside review of the proposal, which (vii) Estimated date for completion may be outside of NMFS or USFWS but of research, and schedule/date of subse- within the Federal Government. quent reports; (4) The MMHSRP Program Manager (viii) Agreement that all research will send the request and attached findings based on use of the banked tis- study plan to any contributor(s) of the sue will be reported to the NMMTB, tissue specimen sample. The contrib- MMHSRP Program Manager and the utor(s) of the sample may submit com- contributor; and the sequences of tis- ments on the proposed research activ- sue specimen samples that are used/re- ity to the Director, Office of Protected leased for genetic analyses (DNA se- Resources within 30 days of the date

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that the request was sent to the con- and Atmospheric Administration, De- tributor(s). partment of Commerce and is intended (5) The USFWS Representative of the for importation into the United States NMMTB Collaborating Agencies will be shall be subject to the provisions of 50 chair of review committees for re- CFR part 14. quests involving species managed by (b) For the information of importers, the DOI. The MMHSRP Program Man- designated ports of entry for the ager will be chair of all other review United States are: committees. New York, N.Y. (6) Each committee chair will provide Miami, Fla. recommendations on the request and Chicago, Ill. an evaluation of the study plan to the San Francisco, Calif. Director, Office of Protected Re- Los Angeles, Calif. sources, NMFS. New Orleans, La. (7) The Director, Office of Protected Seattle, Wash. Resources, NMFS, will make the final Honolulu, Hi. decision on release of the samples (c) Additionally, marine mammals or based on the advice provided by the re- marine mammal products which are view committee, comments received entered into Alaska, Hawaii, Puerto from any contributor(s) of the sample Rico, Guam, American Samoa or the within the time provided in paragraph Virgin Islands and which are not to be (a)(4) of this section, and determina- forwarded or transhipped within the tion that the proposed use of the United States may be imported banked tissue specimen is consistent through the following ports: with the goals of the MMHSRP and the NMMTB. The Director will send a writ- Alaska—Juneau, Anchorage, Fairbanks Hawaii—Honolulu ten decision to the applicant and send Puerto Rico—San Juan copies to all review committee mem- Guam—Honolulu, Hi. bers. If the samples are released, the American Samoa—Honolulu, Hi. response will indicate whether the Virgin Islands—San Juan, P.R. samples have been homogenized and, if (d) Importers are advised to see 50 not, the homogenization schedule. CFR part 14 for importation require- (8) The applicant will bear all shipments and information. ping and homogenization costs related to use of any specimens from the [39 FR 1852, Jan. 15, 1974. Redesignated at 59 NMMTB. FR 50376, Oct. 3, 1994] (9) The applicant will dispose of the tissue specimen sample consistent with Subpart F—Pribilof Islands, Taking the provisions of the applicant’s sci- for Subsistence Purposes entific research permit after the research is completed, unless the re- § 216.71 Allowable take of fur seals. quester submits another request and Pribilovians may take fur seals on receives approval pursuant to this sec- the Pribilof Islands if such taking is tion. The request must be submitted (a) For subsistence uses, and within three months after the original (b) Not accomplished in a wasteful project has been completed. manner. (b) [Reserved] [51 FR 24840, July 9, 1986. Redesignated at 61 [69 FR 41979, July 13, 2004] FR 11750, Mar. 22, 1996]

§§ 216.48–216.49 [Reserved] § 216.72 Restrictions on subsistence use of fur seals. Subpart E—Designated Ports (a) The harvests of seals on St. Paul and St. George Islands shall be treated § 216.50 Importation at designated independently for the purposes of this ports. section. Any suspension, termination, (a) Any marine mammal or marine or extension of the harvest is applica- mammal product which is subject to ble only to the island for which it is the jurisdiction of the National Marine issued. Fisheries Service, National Oceanic (b)–(c)[Reserved]

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(d) St. George Island. The subsistence may harvest up to 150 male fur seal fur seal harvest restrictions described young of the year annually. in paragraphs (d)(1) through (5) of this (7) No more than 50 male young of section apply exclusively to the har- the year may be harvested from each of vest of sub-adult fur seals; restrictions the following regions where fur seals that apply exclusively to the harvest of congregate: East region includes the young of the year fur seals can be breeding areas known as East Reef and found in paragraphs (d)(6) through (11) East Cliffs rookeries and the associated of this section. For the taking of fur non-breeding hauling grounds; South seals for subsistence uses, Pribilovians region includes the breeding areas on St. George Island may harvest up to known as Zapadni and South rookeries a total of 500 male fur seals per year and the associated non-breeding haul- over the course of both the sub-adult ing grounds; and North region includes male harvest and the male young of the breeding areas known as North and the year harvest. Pribilovians are au- Staraya Artil rookeries and associated thorized each year up to three mortali- non-breeding hauling grounds, as ties of female fur seals associated with shown in Figure 1 to part 216. No area the subsistence seasons. Any female fur may be harvested more than twice per seal mortalities will be included in the week and must be in accordance with total authorized subsistence harvest of paragraph (d)(10) of this section. 500 fur seals per year. (8) The scheduling of the young of the (1) Pribilovians may only harvest year harvest is at the discretion of the sub-adult male fur seals 124.5 centi- Pribilovians, but must be such as to meters or less in length from June 23 minimize stress to the harvested and through August 8 annually on St. un-harvested fur seals and minimize George Island. the take of female fur seals. The (2) Pribilovians may harvest sub- Pribilovians must give adequate ad- adult male fur seals at the hauling vance notice of their harvest schedules grounds shown in Figure 1 to part 216. to the NMFS representatives to allow No hauling ground may be harvested for necessary monitoring activities. No more than twice per week. fur seal may be taken except by sealers (3) [Reserved] using the harvesting methods imple- (4) The scheduling of the sub-adult mented to reduce disturbance, injury, male harvest is at the discretion of the and accidental mortality of female fur Pribilovians, but must be such as to seals. Pribilovians may use, but are not minimize stress to the harvested seals. limited to, organized drives of young of The Pribilovians must give adequate the year fur seals from congregating advance notice of their harvest sched- areas to inland killing fields. Methods ules to the NMFS representatives to of harvest must include identification allow for necessary monitoring activi- of male young of the year, followed by ties. No fur seal may be taken except stunning and immediate by experienced sealers using the tradi- exsanguination, unless the NMFS rep- tional harvesting methods, including resentatives, in consultation with the stunning followed immediately by Pribilovians conducting the harvest, exsanguination. The harvesting meth- determine that alternative methods od shall include organized drives of will not result in increased stress to sub-adult male fur seals to killing harvested and un-harvested fur seals, fields, unless the NMFS representa- increased disturbance or injury to rest- tives determine, in consultation with ing fur seals, or the accidental mor- the Pribilovians conducting the har- tality of female seals. vest, that alternative methods will not (9) [Reserved] result in increased disturbance to the (10) No young of the year fur seals rookery or the increased accidental may be taken from any designated take of female seals. breeding area or its associated hauling (5) [Reserved] ground(s) where the most recent NMFS (6) Pribilovians may only harvest analysis projects that pup production male young of the year from Sep- has greater than a 5 percent prob- tember 16 through November 30 annu- ability of falling below a level capable ally on St. George Island. Pribilovians of sustaining a harvest in 10 years.

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(11) No more than 120 days after the during the subsistence seasons on St. final subsistence harvest each calendar George Island. year, NMFS representatives and St. (2) A suspension based on a deter- George Island community members mination under paragraph (f)(1)(i) of must review the implementation of the this section may be lifted by the As- harvest and consider best harvest prac- sistant Administrator if he or she finds tices and determine if implementation that the conditions that led to the de- can be improved to better meet the termination that subsistence use was subsistence needs of the St. George Is- being conducted in a wasteful manner land community or reduce negative effects on fur seals. have been remedied. (e) St. Paul Island. For the taking of (3) A suspension based on a deter- fur seals for subsistence uses, mination under paragraph (f)(1)(ii) of Pribilovians on St. Paul Island are au- this section may be lifted by the As- thorized to take by hunt and harvest sistant Administrator if he or she finds up to 2,000 juvenile (less than 7 years that the conditions that led to the kill- old, including pups) male fur seals per ing of two female fur seals on St. year. George Island have been remedied and (1) Juvenile male fur seals may be additional or improved methods to de- killed with firearms from January 1 tect female fur seals during the sub- through May 31 annually, or may be sistence seasons are being imple- killed using alternative hunting meth- mented. ods developed through the St. Paul Is- (g) Subsistence use termination provi- land Co-management Council if those sions. The Assistant Administrator methods are consistent with § 216.71 shall terminate the annual take pro- and result in substantially similar ef- vided for in § 216.71 on the Pribilof Is- fects. A firearm is any weapon, such as a pistol or rifle, capable of firing a mis- lands, as follows: sile using an explosive charge as a pro- (1) For St. Paul Island: pellant. (i) For the hunting of juvenile male (2) Juvenile male fur seals may be fur seals with firearms, at the end of harvested without the use of firearms the day on May 31 or when 2,000 fur from June 23 through December 31 an- seals have been killed, whichever nually. Authorized harvest may be by comes first; established harvest methods of herding (ii) For the harvest of juvenile male and stunning followed immediately by fur seals without firearms, at the end exsanguination, or by alternative har- of the day on December 31 or when 2,000 vest methods developed through the St. fur seals have been killed, whichever Paul Island Co-management Council if comes first; or those methods are consistent with (iii) When 20 female fur seals have § 216.71 and result in substantially simi- been killed during the subsistence sea- lar effects. (3) Pribilovians are authorized each sons. year up to 20 mortalities of female fur (2) For St. George Island: seals associated with the subsistence (i) For the sub-adult male harvest, at seasons. Any female fur seal mortali- the end of the day on August 8 or when ties will be included in the total num- 500 sub-adult male seals have been har- ber of fur seals authorized per year for vested, whichever comes first; subsistence uses (2,000). (ii) For the male young of the year (f) Subsistence use suspension provi- harvest, at the end of the day on No- sions. (1) The Assistant Administrator vember 30 or earlier when either of the is required to suspend the take pro- following occurs first: 150 male young vided for in § 216.71 on St. George and/or of the year fur seals have been har- St. Paul Islands, as appropriate, when: vested or a total of 500 male sub-adult (i) He or she determines that subsist- and male young of the year fur seals ence use is being conducted in a waste- have been harvested; or ful manner; or (ii) With regard to St. George Island, two female fur seals have been killed

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(iii) When three female fur seals have level of subsistence take. This informa- been killed during the subsistence sea- tion is used to update stock assessment sons. reports and make determinations [51 FR 24840, July 9, 1986, as amended at 57 under § 216.72. Pribilovians who take FR 33902, July 31, 1992; 59 FR 35474, July 12, fur seals for subsistence uses collabo- 1994. Redesignated at 61 FR 11750, Mar. 22, rate with NMFS representatives and 1996, as amended at 79 FR 65337, Nov. 4, 2014; the respective Tribal representatives 84 FR 52382, Oct. 2, 2019]; 85 FR 15948, Mar. 20, to consider best subsistence use prac- 2020 tices under co-management and to fa- § 216.73 Disposition of fur seal parts. cilitate scientific research. Except for transfers to other Alaskan [84 FR 52383, Oct. 2, 2019; 85 FR 15948, Mar. 20, Natives for barter or sharing for per- 2020] sonal or family consumption, no part of a fur seal taken for subsistence uses Subpart G—Pribilof Islands may be sold or otherwise transferred to Administration any person unless it is a nonedible by- product which: § 216.81 Visits to fur seal rookeries. (a) Has been transformed into an article of handicraft, or From June 1 to October 15 of each (b) Is being sent by an Alaskan Na- year, no person, except those author- tive directly, or through a registered ized by a representative of the National agent, to a tannery registered under 50 Marine Fisheries Service, or accom- CFR 216.23(c) for the purpose of proc- panied by an authorized employee of essing, and will be returned directly to the National Marine Fisheries Service, the Alaskan Native for conversion into shall approach any fur seal rookery or an article of handicraft, or hauling grounds nor pass beyond any (c) Is being sold or transferred to an posted sign forbidding passage. Alaskan Native, or to an agent reg- [41 FR 49488, Nov. 9, 1976. Redesignated at 61 istered under 50 CFR 216.23(c) for resale FR 11750, Mar. 22, 1996] or transfer to an Alaskan Native, who will convert the seal part into a handi- § 216.82 Dogs prohibited. craft. In order to prevent molestation of fur [51 FR 24840, July 9, 1986. Redesignated at 61 seal herds, the landing of any dogs at FR 11750, Mar. 22, 1996] Pribilof Islands is prohibited. § 216.74 Cooperation between fur seal [41 FR 49488, Nov. 9, 1976. Redesignated at 61 subsistence users, tribal and Fed- FR 11750, Mar. 22, 1996] eral officials. Federal scientists and Pribilovians § 216.83 Importation of birds or mam- cooperatively manage the subsistence mals. use of northern fur seals under section No mammals or birds, except house- 119 of the Marine Mammal Protection hold cats, canaries and parakeets, shall Act (16 U.S.C. 1388). The federally rec- be imported to the Pribilof Islands ognized tribes on the Pribilof Islands without the permission of an author- have signed agreements describing a ized representative of the National Ma- shared interest in the conservation and rine Fisheries Service. management of fur seals and the designation of co-management councils [41 FR 49488, Nov. 9, 1976. Redesignated at 61 that meet and address the purposes of FR 11750, Mar. 22, 1996] the co-management agreements for representatives from NMFS, St. George § 216.84 [Reserved] and St. Paul tribal governments. § 216.85 Walrus and Otter Islands. NMFS representatives are responsible for compiling information related to By Executive Order 1044, dated Feb- sources of human-caused mortality and ruary 27, 1909, Walrus and Otter Islands serious injury of marine mammals. The were set aside as bird reservations. All Pribilovians are responsible for report- persons are prohibited to land on these ing their subsistence needs and actual islands except those authorized by the

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appropriate representative of the Na- procedure in effect on the Pribilof Is- tional Marine Fisheries Service. lands. [41 FR 49488, Nov. 9, 1976. Redesignated at 61 [43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996] FR 11750, Mar. 22, 1996] § 216.86 Local regulations. Subpart H—Dolphin Safe Tuna Local regulations will be published Labeling from time to time and will be brought to the attention of local residents and AUTHORITY: 16 U.S.C. 1385. persons assigned to duty on the Islands by posting in public places and brought § 216.90 Purposes. to the attention of tourists by personal This subpart governs the require- notice. ments for using the official mark described in § 216.95 or an alternative [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] mark that refers to dolphins, porpoises, or marine mammals, to label tuna or § 216.87 Wildlife research. tuna products offered for sale in or exported from the United States using (a) Wildlife research, other than re- the term dolphin-safe or suggesting the search on North Pacific fur seals, in- tuna were harvested in a manner not cluding specimen collection, may be injurious to dolphins. permitted on the Pribilof Islands subject to the following conditions: [69 FR 55307, Sept. 13, 2004] (1) Any person or agency, seeking to § 216.91 Dolphin-safe labeling stand- conduct such research shall first obtain ards. any Federal or State of Alaska permit required for the type of research in- (a) It is a violation of Section 5 of the volved. Federal Trade Commission Act (15 U.S.C. 45) for any producer, importer, (2) Any person seeking to conduct exporter, wholesaler/distributor, or such research shall obtain prior ap- seller of any tuna products that are ex- proval of the Director, Pribilof Islands ported from or offered for sale in the Program, National Marine Fisheries United States to include on the label of Service, National Oceanic and Atmos- those products the term ‘‘dolphin-safe’’ pheric Administration, 1700 Westlake or any other term or symbol that Avenue North, Seattle, WA 98109, by claims or suggests that the tuna con- filing with the Director an application tained in the products were harvested which shall include: using a method of fishing that is not (i) Copies of the required Federal and harmful to dolphins if the products State of Alaska permits; and contain tuna harvested: (ii) A resume of the intended research (1) ETP large purse seine vessel. In the program. ETP by a purse seine vessel of greater (3) All approved research shall be than 400 st (362.8 mt) carrying capacity subject to all regulations and adminis- unless: trative procedures in effect on the (i) The documentation requirements Pribilof Islands, and such research for dolphin-safe tuna under §§ 216.92 and shall not commence until approval 216.93 are met; from the Director is received. (ii) No dolphins were killed or seri- (4) Any approved research program ously injured during the sets in which shall be subject to such terms and con- the tuna were caught; and ditions as the Director, Pribilof Islands (iii) None of the tuna were caught on Program deems appropriate. a trip using a purse seine net inten- (5) Permission to utilize the Pribilof tionally deployed on or to encircle dol- Islands to conduct an approved re- phins, provided that this paragraph search program may be revoked by the (a)(1)(iii) will not apply if the Assistant Director, Pribilof Islands Program at Administrator publishes a notification any time for noncompliance with any in the FEDERAL REGISTER announcing a terms and conditions, or for violations finding under 16 U.S.C. 1385(g)(2) that of any regulation or administrative the intentional deployment of purse

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seine nets on or encirclement of dol- the NMFS Tuna Tracking and phins is not having a significant ad- Verification Program at https:// verse impact on any depleted stock. www.fisheries.noaa.gov/dolphin-safe. (2) Driftnet. By a vessel engaged in (iv) For tuna caught in a fishery large-scale driftnet fishing; or where the Assistant Administrator has (3) Other fisheries. By a vessel in a determined that observers partici- fishery other than one described in pating in a national or international paragraph (a)(1) or (2) of this section observer program are qualified and au- unless such product is accompanied as thorized to issue observer statements described in § 216.93(d), (e), or (f), as ap- for purposes of the dolphin-safe label- propriate, by: ing program, and where such an ob- (i) For tuna caught in a purse seine server is on board the vessel, a written fishery outside the ETP by a vessel on statement executed by the observer, or a fishing trip that began before July 13, by an authorized representative of a 2013, a written statement executed by nation participating in the observer the Captain of the vessel certifying that no purse seine net was inten- program based on information from the tionally deployed on or used to encircle observer. Any determination by the As- dolphins during the particular trip on sistant Administrator shall be an- which the tuna was harvested. nounced in a notice published in the (ii) For tuna caught by a vessel on a FEDERAL REGISTER. Determinations fishing trip that began on or after July under this paragraph (a)(3)(iv) will also 13, 2013, and before May 21, 2016, a writ- be publicized on the website of the ten statement executed by the Captain NMFS Tuna Tracking and Verification of the vessel certifying: Program (https://www.fisheries.noaa.gov/ (A) For a purse seine vessel outside dolphin-safe). The written statement the ETP, that no purse seine net was shall certify: intentionally deployed on or used to (A) That no dolphins were killed or encircle dolphins during the fishing seriously injured in the sets or other trip in which the tuna were caught, and gear deployments in which the tuna that no dolphins were killed or seri- were caught; and, ously injured in the sets in which the (B) In purse seine fisheries, that no tuna were caught; purse seine net was intentionally de- (B) For a vessel other than one deployed on or used to encircle dolphins scribed in paragraph (a)(3)(ii)(A) of this during the trip on which the tuna were section, that no dolphins were killed or caught. seriously injured in the sets or other (v) For tuna caught in a fishery in gear deployments in which the tuna which the Assistant Administrator has were caught. determined that either a regular and (iii) For tuna caught by a vessel on a significant association between dol- fishing trip that began on or after May phins and tuna (similar to the associa- 21, 2016, a written statement executed by the Captain of the vessel certifying tion between dolphins and tuna in the that: ETP) or a regular and significant mor- (A) No purse seine net or other fish- tality or serious injury of dolphins is ing gear was intentionally deployed on occurring, a written statement, exe- or used to encircle dolphins during the cuted by the Captain of the vessel and fishing trip in which the tuna were an observer participating in a national caught, and that no dolphins were or international program acceptable to killed or seriously injured in the sets the Assistant Administrator, unless or other gear deployments in which the the Assistant Administrator deter- tuna were caught; and mines an observer statement is unnec- (B) The Captain of the vessel has essary. Determinations under this completed the NMFS Tuna Tracking paragraph (a)(3)(v) will also be pub- and Verification Program dolphin-safe licized on the website of the NMFS captain’s training course. The NMFS Tuna Tracking and Verification Pro- Tuna Tracking and Verification Pro- gram (https://www.fisheries.noaa.gov/dol- gram dolphin-safe captain’s training phin-safe). The written statement shall course is available on the website of certify that:

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(A) No fishing gear was intentionally particular fishing trip and to show that deployed on or used to encircle dol- such non-dolphin-safe tuna was kept phins during the trip on which the tuna physically separate from dolphin-safe were caught; tuna through unloading. (B) No dolphins were killed or seri- (ii) For tuna designated dolphin-safe ously injured in the sets or other gear that was harvested in a fishery about deployments in which the tuna were which the Assistant Administrator caught; and made a determination under paragraph (C) Any relevant requirements of (a)(3)(v) of this section, and harvested paragraph (a)(4) of this section were on a fishing trip that begins on or after complied with during the trip on which 60 days after the date of the FEDERAL the tuna were caught. REGISTER notice of that determination, (4) Other fisheries—segregation. In a the tuna or tuna products are accom- fishery other than one described in panied by valid documentation signed paragraph (a)(1) or (2) of this section on by a representative of the vessel flag a fishing trip that began on or after nation or the processing nation (if July 13, 2013 unless the tuna caught in processed in another nation) certifying sets or gear deployments designated as that: dolphin-safe was stored physically sep- (A) The catch documentation is cor- arate from tuna caught in a non-dol- rect; phin-safe set or other gear deployment (B) The tuna or tuna products meet by the use of netting, other material, the dolphin-safe labeling standards or separate storage areas from the time under this section; and of capture through unloading. If tuna (C) The chain of custody information caught in a set or other gear deploy- is correct. ment where a dolphin was killed or se- (iii) The information referred to in riously injured is not stored physically paragraphs (a)(5)(i) and (ii) of this sec- separate from dolphin-safe tuna as tion is maintained at the place of busi- stated in § 216.93(c)(2)(i) or (c)(3)(i), as ness of the importer of record or the applicable, all tuna inside the storage U.S. processor, as applicable, for a pe- well or other storage location shall be riod of 2 years from the date of the im- considered non-dolphin-safe. port or receipt, and be made available (5) Other fisheries—chain of custody to NMFS for inspection upon request. recordkeeping. By a vessel in a fishery (b) It is a violation of section 5 of the other than one described in paragraph Federal Trade Commission Act (15 (a)(1) or (2) of this section unless: U.S.C. 45) to willingly and knowingly (i) For tuna designated dolphin-safe use a label referred to in this section in that was harvested on a fishing trip a campaign or effort to mislead or de- that began on or after May 21, 2016, in ceive consumers about the level of pro- addition to any other applicable re- tection afforded dolphins under the quirements: IDCP. (A) The importer of record or U.S. (c) A tuna product that is labeled processor of tuna or tuna products, as with the official mark, described in applicable, maintains information on § 216.95, may not be labeled with any the complete chain of custody, includ- other label or mark that refers to dol- ing storage facilities, transshippers, phins, porpoises, or marine mammals. processors, re-processors, and whole- [81 FR 15448, Mar. 23, 2016, as amended at 81 salers/distributors to enable dolphin- FR 15449, Mar. 23, 2016; 83 FR 3626, Jan. 26, safe tuna to be distinguished from non- 2018] dolphin-safe tuna from the time it is caught to the time it is ready for retail § 216.92 Dolphin-safe requirements for sale; tuna harvested in the ETP by large (B) The importer of record or the purse seine vessels. U.S. processor, as appropriate, ensures (a) U.S. vessels. Tuna products that that information is readily available to contain tuna harvested by U.S. flag NMFS upon request to allow it to trace purse seine vessels of greater than 400 any non-dolphin-safe tuna loaded onto st (362.8 mt) carrying capacity in the the vessel back to one or more storage ETP may be labeled dolphin-safe only wells or other storage locations for a if the following requirements are met:

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(1) Tuna Tracking Forms containing (A) There was an IDCP approved ob- a complete record of all the fishing ac- server on board the vessel(s) during the tivities on the trip, certified by the entire trip(s); and vessel Captain and the observer, are (B) The tuna contained in the ship- submitted to the Administrator, ment were caught according to the dol- Southwest Region, at the end of the phin-safe labeling standards of § 216.91. fishing trip during which the tuna was [69 FR 55307, Sept. 13, 2004, as amended at 74 harvested; FR 1617, Jan. 13, 2009] (2) The tuna is delivered for processing to a U.S. tuna processor in a § 216.93 Tracking and verification pro- plant located in one of the 50 states, gram. Puerto Rico, or American Samoa that The Administrator, Southwest Re- is in compliance with the tuna track- gion, has established a national tracking and verification requirements of ing and verification program to accu- § 216.93; and rately document the dolphin-safe con- (3) The tuna or tuna products meet dition of tuna, under the standards set the dolphin-safe labeling standards forth in §§ 216.91 and 216.92. The track- under § 216.91. ing program includes procedures and (b) Imported tuna. (1) Yellowfin tuna reports for use when importing tuna or tuna products harvested in the ETP into the United States and during U.S. by vessels of greater than 400 st (362.8 fishing, processing, and marketing in mt) carrying capacity and presented the United States and abroad. for import into the United States may Verification of tracking system oper- be labeled dolphin-safe only if the yel- ations is attained through the estab- lowfin tuna was harvested by a U.S. lishment of audit and document review vessel fishing in compliance with the requirements. The tracking program is requirements of the IDCP and applica- consistent with the international tuna ble U.S. law, or by a vessel belonging tracking and verification program to a nation that has obtained an af- adopted by the Parties to the Agree- firmative finding under § 216.24(f)(8). ment on the IDCP. (2) Tuna or tuna products, other than (a) Tuna tracking forms. Whenever a yellowfin tuna, harvested in the ETP U.S. flag tuna purse seine vessel of by purse seine vessels of greater than greater than 400 st (362.8 mt) carrying 400 st (362.8 mt) carrying capacity and capacity fishes in the ETP, IDCP ap- presented for import into the United proved Tuna Tracking Forms (TTFs), States may be labeled dolphin-safe bearing a unique number assigned to only if: that trip, are used by the observer to (i) The tuna was harvested by a U.S. record every set made during that trip. vessel fishing in compliance with the One TTF is used to record dolphin-safe requirements of the IDCP and applica- sets and a second TTF is used to record ble U.S. law, or by a vessel belonging non-dolphin-safe sets. The information to a nation that is a Party to the entered on the TTFs following each set Agreement on the IDCP or has applied includes the date, well number, weights to become a Party and is adhering to by species composition, estimated tons all the requirements of the Agreement loaded, and additional notes, if any. on the IDCP Tuna Tracking and The observer and the vessel engineer Verification Plan; initial the entry as soon as possible fol- (ii) The tuna or tuna products are ac- lowing each set, and the vessel captain companied as described in § 216.24(f)(3) and observer review and sign both by a properly completed FCO; and TTFs at the end of the fishing trip cer- (iii) The tuna or tuna products are tifying that the information on the accompanied as described in forms is accurate. TTFs are confiden- § 216.24(f)(3) by valid documentation tial official documents of the IDCP, signed by a representative of the appro- consistent with Article XVIII of the priate IDCP member nation, con- Agreement on the IDCP, and the taining the harvesting vessel names Agreement on the IDCP Rules of Con- and tuna tracking form numbers rep- fidentiality. resented in the shipment, and certi- (b) Dolphin-Safe Certification. Upon re- fying that: quest, the Office of the Administrator,

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Southwest Region, will provide written concerning tuna retained on the vessel certification that tuna harvested by will be recorded as the first entry on U.S. purse seine vessels greater than the TTFs for the new trip. If the trip is 400 st (362.8 mt) carrying capacity is not terminated following a partial un- dolphin-safe, but only if NMFS’ review loading, the vessel will retain the of the TTFs for the subject trip shows original TTFs and submit a copy of that the tuna for which the certifi- those TTFs to the Administrator, cation is requested is dolphin-safe Southwest Region, within 5 working under the requirements of the Agree- days. In either case, the species and ment on the IDCP and U.S. law. amount unloaded will be noted on the (c) Tracking fishing operations. (1) ETP respective originals. large purse seine vessel. In the ETP by a (iv) Tuna offloaded to trucks, storage purse seine vessel of greater than 400 st facilities, or carrier vessels must be (362.8 mt) carrying capacity: loaded or stored in such a way as to (i) During fishing trips, any part of maintain and safeguard the identifica- which included fishing in the ETP, by tion of the dolphin-safe or non-dolphin- purse seine vessels greater than 400 st safe designation of the tuna as it left (362.8 mt) carrying capacity, tuna the fishing vessel. caught in sets designated as dolphin- (v) The handling of TTFs and the safe by the vessel observer must be tracking and verification of tuna stored separately from tuna caught in caught in the Convention Area by a non-dolphin-safe sets from the time of U.S. purse seine vessel greater than 400 capture through unloading. Vessel per- st (362.8 mt) carrying capacity shall be sonnel will decide into which wells conducted consistent with the inter- tuna will be loaded. The observer will national tuna tracking and verification initially designate whether each set is program adopted by the Parties to the dolphin-safe or not, based on his/her Agreement on the IDCP. observation of the set. The observer (2) Purse seine vessel other than ETP will initially identify a vessel fish well large purse seine vessel. This paragraph as dolphin-safe if the first tuna loaded (c)(2) applies to tuna product labeled into the well during a trip was cap- dolphin-safe that includes tuna har- tured in a set in which no dolphin died vested on a fishing trip that began on or was seriously injured. The observer or after July 13, 2013, in the ETP by a will initially identify a vessel fish well purse seine vessel of 400 st (362.8 mt) or as non-dolphin-safe if the first tuna less carrying capacity or by a purse loaded into the well during a trip was seine vessel outside the ETP of any captured in a set in which a dolphin carrying capacity. died or was seriously injured. Any tuna (i) Tuna caught in sets designated as loaded into a well previously des- dolphin-safe must be stored separately ignated non-dolphin-safe is considered from tuna caught in non-dolphin-safe non-dolphin-safe tuna. The observer sets from the time of capture through will change the designation of a dol- unloading. Tuna caught in sets where a phin-safe well to non-dolphin-safe if dolphin died or was seriously injured any tuna are loaded into the well that must be stored in a well designated as were captured in a set in which a dol- non-dolphin-safe by the captain or, phin died or was seriously injured. where applicable, by a qualified and au- (ii) The captain, managing owner, or thorized observer under § 216.91. Any vessel agent of a U.S. purse seine vessel tuna loaded into a well previously des- greater than 400 st (362.8 mt) returning ignated non-dolphin-safe is considered to port from a trip, any part of which non-dolphin-safe tuna. The captain or, included fishing in the ETP, must pro- where applicable, a qualified and au- vide at least 48 hours’ notice of the ves- thorized observer under § 216.91, will sel’s intended place of landing, arrival change the designation of a dolphin- time, and schedule of unloading to the safe well to non-dolphin-safe if any Administrator, Southwest Region. tuna are loaded into the well that were (iii) If the trip terminates when the captured in a set in which a dolphin vessel enters port to unload part or all died or was seriously injured. If a purse of its catch, new TTFs will be assigned seine vessel has only one well used to to the new trip, and any information store tuna, dolphin-safe tuna must be

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kept physically separate from non-dol- (2) Tuna processors must submit a re- phin-safe tuna by using netting or port to the Administrator, Southwest other material. If a purse seine vessel Region, of all tuna received at their has more than one well used to store processing facilities in each calendar tuna, all tuna inside a well shall be month whether or not the tuna is actu- considered non-dolphin-safe, if at any ally canned or stored during that time non-dolphin-safe tuna is loaded month. Monthly cannery receipt re- into the well, regardless of the use of ports must be submitted electronically netting or other material inside the or by mail before the last day of the well. month following the month being re- (ii) Tuna offloaded to trucks, storage ported. Monthly reports must contain facilities, or carrier vessels must be the following information: loaded or stored in such a way as to (i) Domestic receipts: whether the tuna maintain and safeguard the identifica- is eligible to be labeled dolphin-safe tion of the dolphin-safe or non-dolphin- under § 216.91, species, condition (round, safe designation of the tuna as it left loin, dressed, gilled and gutted, other), the fishing vessel. weight in short tons to the fourth dec- (3) Other vessels. This paragraph (c)(3) imal, ocean area of capture (ETP, west- applies to tuna product labeled dol- ern Pacific, Indian, eastern and west- phin-safe that includes tuna harvested ern Atlantic, other), catcher vessel, by a vessel on a fishing trip that began gear type, trip dates, carrier name, un- on or after July 13, 2013 other than ones loading dates, and location of unload- described in paragraphs (c)(1) or (2) of ing. Where the processor indicates the this section: tuna is eligible to be labeled dolphin- safe under § 216.91, it must enclose the (i) Tuna caught in sets or other gear certifications required by that section. deployments designated as dolphin-safe (ii) Import receipts: In addition to the must be stored separately from tuna information required in paragraph caught in non-dolphin-safe sets or (d)(2)(i) of this section, a copy of the other gear deployments from the time FCO for each imported receipt must be of capture through unloading. Dolphin- provided. safe tuna must be kept physically sepa- (3) Tuna processors must report on a rate from non-dolphin-safe tuna by monthly basis the amounts of ETP- using netting, other material, or sepa- caught tuna that were immediately rate storage areas. The captain or, utilized upon receipt or removed from where applicable, a qualified and au- cold storage. This report may be sub- thorized observer under § 216.91, must mitted in conjunction with the month- designate the storage areas for dolphin- ly report required in paragraph (d)(2) of safe and non-dolphin-safe tuna. this section. This report must contain: (ii) Tuna offloaded to trucks, storage (i) The date of removal from cold facilities, or carrier vessels must be storage or disposition; loaded or stored in such a way as to (ii) Storage container or lot identi- maintain and safeguard the identifica- fier number(s) and dolphin-safe or non- tion of the dolphin-safe or non-dolphin- dolphin-safe designation of each con- safe designation of the tuna as it left tainer or lot; and the fishing vessel. (iii) Details of the disposition of fish (d) Tracking cannery operations. (1) (for example, canning, sale, rejection, Whenever a U.S. tuna canning com- etc.). pany in the 50 states, Puerto Rico, or (4) During canning activities, non- American Samoa receives a domestic dolphin-safe tuna may not be mixed in or imported shipment of tuna for proc- any manner or at any time during essing, a NMFS representative may be processing with any dolphin-safe tuna present to monitor delivery and verify or tuna products and may not share the that dolphin-safe and non-dolphin-safe same storage containers, cookers, con- tuna are clearly identified and remain veyers, tables, or other canning and la- segregated. Such inspections may be beling machinery. scheduled or unscheduled, and canners (e) Tracking processor operations other must allow the NMFS representative than cannery operations. U.S. tuna proc- access to all areas and records. essors other than cannery operations

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engaged in processing tuna products, Region, any exporter, transshipper, im- including frozen, dried, or smoked tuna porter, processor, or wholesaler/dis- products, must submit a report to the tributor of tuna or tuna products must Administrator, Southwest Region that provide the Administrator, Southwest includes the information set out in Region, timely access to all pertinent § 216.93(d)(2) and (3) on a monthly basis records and facilities to allow for au- for all tuna received at their processing dits and spot-checks on caught, landed, facilities that will be included in any stored, and processed tuna. tuna product labeled dolphin-safe. (h) Confidentiality of proprietary infor- (f) Tracking imports. All tuna prod- mation. Information submitted to the ucts, except fresh tuna, that are im- Assistant Administrator under this ported into the United States must be section will be treated as confidential accompanied as described in in accordance with NOAA Administra- § 216.24(f)(3) by a properly certified FCO tive Order 216–100 ‘‘Protection of Con- as required by § 216.24(f)(2). For tuna fidential Fisheries Statistics.’’ tracking purposes, copies of FCOs and associated certifications and state- [78 FR 41002, July 9, 2013, as amended at 81 FR 51133, Aug. 3, 2016] ments must be submitted by the importer of record to U.S. Customs and § 216.94 False statements or endorse- Border Protection as described in and ments. required by § 216.24(f)(2). Any person who knowingly and will- (g) Verification requirements. (1) Record fully makes a false statement or false maintenance. Any exporter, endorsement required by § 216.92 is lia- transshipper, importer, processor, or ble for a civil penalty not to exceed wholesaler/distributor of any tuna or $100,000, that may be assessed in an ac- tuna products must maintain records tion brought in any appropriate Dis- related to that tuna for at least 2 trict Court of the United States on be- years. These records include, but are half of the Secretary. not limited to: FCOs and required certifications, any reports required in [61 FR 27794, June 3, 1996. Redesignated at 69 paragraphs (a), (b), (d) and (e) of this FR 55307, Sept. 13, 2004] section, invoices, other import documents, and trip reports. § 216.95 Official mark for ‘‘Dolphin- (2) Record submission. At the time of, safe’’ tuna products. or in advance of, importation of a ship- (a) This is the ‘‘official mark’’ (see ment of tuna or tuna products, any im- figure 1) designated by the United porter of tuna or tuna products must States Department of Commerce that submit all corresponding FCOs and re- may be used to label tuna products quired certifications and statements that meet the ‘‘dolphin-safe’’ standards for those tuna or tuna products as re- set forth in the Dolphin Protection quired by § 216.24(f)(2). Consumer Information Act, 16 U.S.C. (3) Audits and spot checks. Upon re- 1385, and implementing regulations at quest of the Administrator, Southwest §§ 216.91 through 216.94:

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(b) Location and size of the official § 216.101 Purpose. mark. The official mark on labels must The regulations in this subpart im- allow the consumer to identify the offi- plement section 101(a)(5) (A) through cial mark and be similar in design and (D) of the Marine Mammal Protection scale to figure 1. A full color version of Act of 1972, as amended, 16 U.S.C. the official mark is available at https:// 1371(a)(5), which provides a mechanism www.fisheries.noaa.gov/national/marine- for allowing, upon request, the inci- mammal-protection/dolphin-safe-official- dental, but not intentional, taking of mark. small numbers of marine mammals by [65 FR 34410, May 30, 2000. Redesignated at 69 U.S. citizens who engage in a specified FR 55307, Sept. 13, 2004, as amended at 83 FR activity (other than commercial fish- 3626, Jan. 26, 2018] ing) within a specified geographic region. Subpart I—General Regulations Governing Small Takes of Ma- § 216.102 Scope. rine Mammals Incidental to The taking of small numbers of ma- Specified Activities rine mammals under section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if SOURCE: 61 FR 15887, Apr. 10, 1996, unless otherwise noted. the National Marine Fisheries Service:

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(a) Finds, based on the best scientific definition of ‘‘take’’ is contained in evidence available, that the total tak- § 216.3). ing by the specified activity during the Negligible impact is an impact result- specified time period will have a neg- ing from the specified activity that ligible impact on species or stock of cannot be reasonably expected to, and marine mammal(s) and will not have is not reasonably likely to, adversely an unmitigable adverse impact on the affect the species or stock through ef- availability of those species or stocks fects on annual rates of recruitment or of marine mammals intended for sub- survival. sistence uses; Small numbers means a portion of a (b) Prescribes either regulations marine mammal species or stock whose under § 216.106, or requirements and taking would have a negligible impact conditions contained within an inci- on that species or stock. dental harassment authorization issued Specified activity means any activity, under § 216.107, setting forth permis- other than commercial fishing, that sible methods of taking and other takes place in a specified geographical means of effecting the least practicable region and potentially involves the adverse impact on the species or stock taking of small numbers of marine of marine mammal and its habitat and mammals. on the availability of the species or Specified geographical region means an stock of marine mammal for subsist- area within which a specified activity ence uses, paying particular attention is conducted and that has certain bio- to rookeries, mating grounds, and geographic characteristics. areas of similar significance; and Unmitigable adverse impact means an impact resulting from the specified ac- (c) Prescribes either regulations or tivity: requirements and conditions contained (1) That is likely to reduce the avail- within an incidental harassment au- ability of the species to a level insuffi- thorization, as appropriate, pertaining cient for a harvest to meet subsistence to the monitoring and reporting of needs by: such taking. The specific regulations (i) Causing the marine mammals to governing certain specified activities abandon or avoid hunting areas; are contained in subsequent subparts of (ii) Directly displacing subsistence this part. users; or (iii) Placing physical barriers be- § 216.103 Definitions. tween the marine mammals and the In addition to definitions contained subsistence hunters; and in the MMPA, and in § 216.3, and unless (2) That cannot be sufficiently miti- the context otherwise requires, in sub- gated by other measures to increase sequent subparts to this part: the availability of marine mammals to Arctic waters means the marine and allow subsistence needs to be met. estuarine waters north of 60° N. lat. Citizens of the United States and U.S. § 216.104 Submission of requests. citizens mean individual U.S. citizens or (a) In order for the National Marine any corporation or similar entity if it Fisheries Service to consider author- is organized under the laws of the izing the taking by U.S. citizens of United States or any governmental small numbers of marine mammals in- unit defined in 16 U.S.C. 1362(13). U.S. cidental to a specified activity (other Federal, state and local government than commercial fishing), or to make a agencies shall also constitute citizens finding that an incidental take is un- of the United States for purposes of likely to occur, a written request must this part. be submitted to the Assistant Adminis- Incidental harassment, incidental tak- trator. All requests must include the ing and incidental, but not intentional, following information for their activ- taking all mean an accidental taking. ity: This does not mean that the taking is (1) A detailed description of the spe- unexpected, but rather it includes cific activity or class of activities that those takings that are infrequent, un- can be expected to result in incidental avoidable or accidental. (A complete taking of marine mammals;

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(2) The date(s) and duration of such will be taken to minimize any adverse activity and the specific geographical effects on the availability of marine region where it will occur; mammals for subsistence uses. A plan (3) The species and numbers of ma- must include the following: rine mammals likely to be found with- (i) A statement that the applicant in the activity area; has notified and provided the affected (4) A description of the status, dis- subsistence community with a draft tribution, and seasonal distribution plan of cooperation; (when applicable) of the affected spe- (ii) A schedule for meeting with the cies or stocks of marine mammals like- affected subsistence communities to ly to be affected by such activities; discuss proposed activities and to re- (5) The type of incidental taking au- solve potential conflicts regarding any thorization that is being requested aspects of either the operation or the (i.e., takes by harassment only; takes plan of cooperation; by harassment, injury and/or death) (iii) A description of what measures and the method of incidental taking; the applicant has taken and/or will (6) By age, sex, and reproductive con- take to ensure that proposed activities dition (if possible), the number of ma- will not interfere with subsistence rine mammals (by species) that may be whaling or sealing; and taken by each type of taking identified (iv) What plans the applicant has to in paragraph (a)(5) of this section, and continue to meet with the affected the number of times such takings by communities, both prior to and while each type of taking are likely to occur; conducting the activity, to resolve con- (7) The anticipated impact of the ac- flicts and to notify the communities of tivity upon the species or stock of ma- any changes in the operation; rine mammal; (13) The suggested means of accom- (8) The anticipated impact of the ac- plishing the necessary monitoring and tivity on the availability of the species reporting that will result in increased or stocks of marine mammals for sub- knowledge of the species, the level of sistence uses; taking or impacts on populations of (9) The anticipated impact of the ac- marine mammals that are expected to tivity upon the habitat of the marine be present while conducting activities mammal populations, and the likeli- and suggested means of minimizing hood of restoration of the affected burdens by coordinating such reporting habitat; requirements with other schemes al- (10) The anticipated impact of the ready applicable to persons conducting loss or modification of the habitat on such activity. Monitoring plans should the marine mammal populations in- include a description of the survey volved; techniques that would be used to deter- (11) The availability and feasibility mine the movement and activity of (economic and technological) of equip- marine mammals near the activity ment, methods, and manner of con- site(s) including migration and other ducting such activity or other means of habitat uses, such as feeding. Guide- effecting the least practicable adverse lines for developing a site-specific mon- impact upon the affected species or itoring plan may be obtained by writ- stocks, their habitat, and on their ing to the Director, Office of Protected availability for subsistence uses, pay- Resources; and ing particular attention to rookeries, (14) Suggested means of learning of, mating grounds, and areas of similar encouraging, and coordinating research significance; opportunities, plans, and activities re- (12) Where the proposed activity lating to reducing such incidental tak- would take place in or near a tradi- ing and evaluating its effects. tional Arctic subsistence hunting area (b)(1) The Assistant Administrator and/or may affect the availability of a shall determine the adequacy and com- species or stock of marine mammal for pleteness of a request and, if deter- Arctic subsistence uses, the applicant mined to be adequate and complete, must submit either a plan of coopera- will begin the public review process by tion or information that identifies publishing in the FEDERAL REGISTER ei- what measures have been taken and/or ther:

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(i) A proposed incidental harassment activity would have more than a neg- authorization; or ligible impact on the species or stock (ii) A notice of receipt of a request of marine mammal or would have an for the implementation or re- unmitigable adverse impact on the implementation of regulations gov- availability of such species or stock for erning the incidental taking. subsistence uses, the Assistant Admin- (2) Through notice in the FEDERAL istrator shall publish in the FEDERAL REGISTER, newspapers of general cir- REGISTER the negative finding along culation, and appropriate electronic with the basis for denying the request. media in the coastal areas that may be affected by such activity, NMFS will § 216.105 Specific regulations. invite information, suggestions, and (a) For all petitions for regulations comments for a period not to exceed 30 under this paragraph, applicants must days from the date of publication in provide the information requested in the FEDERAL REGISTER. All informa- § 216.104(a) on their activity as a whole, tion and suggestions will be considered which includes, but is not necessarily by the National Marine Fisheries Serv- limited to, an assessment of total im- ice in developing, if appropriate, the pacts by all persons conducting the ac- most effective regulations governing tivity. the issuance of letters of authorization (b) For allowed activities that may or conditions governing the issuance of result in incidental takings of small an incidental harassment authoriza- numbers of marine mammals by har- tion. assment, serious injury, death or a (3) Applications that are determined combination thereof, specific regula- to be incomplete or inappropriate for tions shall be established for each al- the type of taking requested, will be re- lowed activity that set forth: turned to the applicant with an expla- (1) Permissible methods of taking; nation of why the application is being (2) Means of effecting the least prac- returned. ticable adverse impact on the species (c) The Assistant Administrator shall and its habitat and on the availability evaluate each request to determine, of the species for subsistence uses; and based upon the best available scientific (3) Requirements for monitoring and evidence, whether the taking by the reporting, including requirements for specified activity within the specified the independent peer-review of pro- geographic region will have a neg- posed monitoring plans where the pro- ligible impact on the species or stock posed activity may affect the avail- and, where appropriate, will not have ability of a species or stock for taking an unmitigable adverse impact on the for subsistence uses. availability of such species or stock for (c) Regulations will be established subsistence uses. If the Assistant Ad- based on the best available informa- ministrator finds that the mitigating tion. As new information is developed, measures would render the impact of through monitoring, reporting, or re- the specified activity negligible when search, the regulations may be modi- it would not otherwise satisfy that re- fied, in whole or in part, after notice quirement, the Assistant Adminis- and opportunity for public review. trator may make a finding of negligible impact subject to such miti- § 216.106 Letter of Authorization. gating measures being successfully im- (a) A Letter of Authorization, which plemented. Any preliminary findings of may be issued only to U.S. citizens, is ‘‘negligible impact’’ and ‘‘no required to conduct activities pursuant unmitigable adverse impact’’ shall be to any regulations established under proposed for public comment along § 216.105. Requests for Letters of Au- with either the proposed incidental thorization shall be submitted to the harassment authorization or the pro- Director, Office of Protected Re- posed regulations for the specific activ- sources. The information to be sub- ity. mitted in a request for an authoriza- (d) If, subsequent to the public review tion will be specified in the appropriate period, the Assistant Administrator subpart to this part or may be obtained finds that the taking by the specified by writing to the above named person.

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(b) Issuance of a Letter of Authoriza- (1) Permissible methods of taking by tion will be based on a determination harassment; that the level of taking will be con- (2) Means of effecting the least prac- sistent with the findings made for the ticable adverse impact on the species, total taking allowable under the spe- its habitat, and on the availability of cific regulations. the species for subsistence uses; and (c) Letters of Authorization will (3) Requirements for monitoring and specify the period of validity and any reporting, including requirements for additional terms and conditions appro- the independent peer-review of propriate for the specific request. posed monitoring plans where the pro- (d) Notice of issuance of all Letters of posed activity may affect the avail- Authorization will be published in the ability of a species or stock for taking FEDERAL REGISTER within 30 days of for subsistence uses. issuance. (b) Issuance of an incidental harass- (e) Letters of Authorization shall be ment authorization will be based on a withdrawn or suspended, either on an determination that the number of ma- individual or class basis, as appro- rine mammals taken by harassment priate, if, after notice and opportunity will be small, will have a negligible im- for public comment, the Assistant Ad- pact on the species or stock of marine ministrator determines that: mammal(s), and will not have an unmitigable adverse impact on the (1) The regulations prescribed are not availability of species or stocks for being substantially complied with; or taking for subsistence uses. (2) The taking allowed is having, or (c) An incidental harassment author- may have, more than a negligible im- ization will be either issued or denied pact on the species or stock or, where within 45 days after the close of the relevant, an unmitigable adverse im- public review period. pact on the availability of the species (d) Notice of issuance or denial of an or stock for subsistence uses. incidental harassment authorization (f) The requirement for notice and will be published in the FEDERAL REG- opportunity for public review in ISTER within 30 days of issuance of a § 216.106(e) shall not apply if the Assist- determination. ant Administrator determines that an (e) Incidental harassment authoriza- emergency exists that poses a signifi- tions will be valid for a period of time cant risk to the wellbeing of the spe- not to exceed 1 year but may be re- cies or stocks of marine mammals con- newed for additional periods of time cerned. not to exceed 1 year for each reauthor- (g) A violation of any of the terms ization. and conditions of a Letter of Author- (f) An incidental harassment authorization or of the specific regulations ization shall be modified, withdrawn, shall subject the Holder and/or any in- or suspended if, after notice and oppor- dividual who is operating under the au- tunity for public comment, the Assist- thority of the Holder’s Letter of Au- ant Administrator determines that: thorization to penalties provided in the (1) The conditions and requirements MMPA. prescribed in the authorization are not being substantially complied with; or § 216.107 Incidental harassment au- (2) The authorized taking, either in- thorization for Arctic waters. dividually or in combination with (a) Except for activities that have other authorizations, is having, or may the potential to result in serious injury have, more than a negligible impact on or mortality, which must be authorized the species or stock or, where relevant, under § 216.105, incidental harassment an unmitigable adverse impact on the authorizations may be issued, fol- availability of the species or stock for lowing a 30-day public review period, to subsistence uses. allowed activities that may result in (g) The requirement for notice and only the incidental harassment of a opportunity for public review in para- small number of marine mammals. graph (f) of this section shall not apply Each such incidental harassment au- if the Assistant Administrator deter- thorization shall set forth: mines that an emergency exists that

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poses a significant risk to the well- tion, may vary depending on the activ- being of the species or stocks of marine ity, the location, and the time. mammals concerned. (d) Where the proposed activity may (h) A violation of any of the terms affect the availability of a species or and conditions of an incidental harass- stock of marine mammal for taking for ment authorization shall subject the subsistence purposes, proposed moni- holder and/or any individual who is op- toring plans or other research pro- erating under the authority of the posals must be independently peer-re- holder’s incidental harassment author- viewed prior to issuance of an inci- ization to penalties provided in the dental harassment authorization under MMPA. this subpart. In order to complete the peer-review process within the time § 216.108 Requirements for monitoring frames mandated by the MMPA for an and reporting under incidental harassment authorizations for Arctic incidental harassment authorization, a waters. proposed monitoring plan submitted under this paragraph must be sub- (a) Holders of an incidental harass- mitted to the Assistant Administrator ment authorization in Arctic waters no later than the date of submission of and their employees, agents, and des- the application for an incidental har- ignees must cooperate with the Na- assment authorization. Upon receipt of tional Marine Fisheries Service and a complete monitoring plan, and at its other designated Federal, state, or discretion, the National Marine Fish- local agencies to monitor the impacts of their activity on marine mammals. eries Service will either submit the Unless stated otherwise within an inci- plan to members of a peer review panel dental harassment authorization, the for review or within 60 days of receipt holder of an incidental harassment au- of the proposed monitoring plan, sched- thorization effective in Arctic waters ule a workshop to review the plan. The must notify the Alaska Regional Direc- applicant must submit a final monitor, National Marine Fisheries Service, toring plan to the Assistant Adminis- of any activities that may involve a trator prior to the issuance of an inci- take by incidental harassment in Arc- dental harassment authorization. tic waters at least 14 calendar days (e) At its discretion, the National prior to commencement of the activ- Marine Fisheries Service may place an ity. observer aboard vessels, platforms, air- (b) Holders of incidental harassment craft, etc., to monitor the impact of ac- authorizations effective in Arctic tivities on marine mammals. waters may be required by their au- (f)(1) As specified in the incidental thorization to designate at least one harassment authorization, the holder qualified biological observer or another of an incidental harassment authoriza- appropriately experienced individual to tion for Arctic waters must submit re- observe and record the effects of activi- ports to the Assistant Administrator ties on marine mammals. The number within 90 days of completion of any in- of observers required for monitoring dividual components of the activity (if the impact of the activity on marine any), within 90 days of completion of mammals will be specified in the inci- the activity, but no later than 120 days dental harassment authorization. If ob- prior to expiration of the incidental servers are required as a condition of harassment authorization, whichever is the authorization, the observer(s) must earlier. This report must include the be approved in advance by the National following information: Marine Fisheries Service. (i) Dates and type(s) of activity; (c) The monitoring program must, if (ii) Dates and location(s) of any ac- appropriate, document the effects (in- tivities related to monitoring the ef- cluding acoustical) on marine mammals and document or estimate the ac- fects on marine mammals; and tual level of take. The requirements (iii) Results of the monitoring activi- for monitoring plans, as specified in ties, including an estimate of the ac- the incidental harassment authoriza- tual level and type of take, species

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name and numbers of each species ob- delay in processing future authoriza- served, direction of movement of spe- tion requests. cies, and any observed changes or (g) Results of any behavioral, feed- modifications in behavior. ing, or population studies, that are (2) Monitoring reports will be re- conducted supplemental to the moni- viewed by the Assistant Administrator toring program, should be made avail- and, if determined to be incomplete or able to the National Marine Fisheries inaccurate, will be returned to the Service before applying for an inci- holder of the authorization with an ex- dental harassment authorization for the following year. planation of why the report is being returned. If the authorization holder dis- agrees with the findings of the Assist- Subparts J–X [Reserved] ant Administrator, the holder may re- FIGURE 1 TO PART 216—NORTHERN FUR quest an independent peer review of the SEAL BREEDING AREAS (ROOKERIES) report. Failure to submit a complete AND HAULING GROUNDS ON ST. and accurate report may result in a GEORGE ISLAND, ALASKA

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[79 FR 65338, Nov. 4, 2014]

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