50 CFR Part 216 — Regulations Governing the Taking and Importing of Marine Mammals

PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS Authority: 16 U.S.C. 1361 et seq., Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted. Note to part 216: See also 50 CFR parts 228 and 229 for regulations governing certain incidental takings of marine mammals. Subpart A—Introduction § 216.1 Purpose of regulations. The regulations in this part implement the Marine Mammal Protection Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407, Pub. L. 92-522, which, among other things, restricts the taking, possession, transportation, selling, offering for sale, and importing of marine mammals. § 216.2 Scope of regulations. This part 216 applies solely to marine mammals and marine mammal products as defined in § 216.3. For regulations under the MMPA, with respect to other marine mammals and marine mammal products, see 50 CFR part 18. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994] § 216.3 Definitions. In addition to definitions contained in the MMPA, and unless the context otherwise requires, in this part 216: Acts et seq., et seq., et seq. Active sportfishing Administrator, Southwest Region Agreement on the International Dolphin Conservation Program (Agreement on the IDCP) Alaskan Native Albacore tuna Thunnus alalunga. Article of handicraft (1) Were commonly produced by Alaskan Natives on or before October 14, 1983; (2) Are composed wholly or in some significant respect of natural materials, and; (3) Are significantly altered from their natural form and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or similar mass copying devices. Improved methods of production utilizing modern implements such as sewing machines or modern tanning techniques at a tannery registered pursuant to § 216.23(c) may be used so long as no large scale mass production industry results. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as a cooperative, is permitted so long as no large scale mass production results. Assistant Administrator Authentic native articles of handicrafts and clothing Bigeye tuna Thunnus obesus. Bluefin tuna Thunnus thynnus Thunnus orientalis. Bona fide scientific research: (i) Likely would be accepted for publication in a refereed scientific journal; (ii) Are likely to contribute to the basic knowledge of marine mammal biology or ecology. (Note: This includes, for example, marine mammal parts in a properly curated, professionally accredited scientific collection); or (iii) Are likely to identify, evaluate, or resolve conservation problems. (2) Research that is not on marine mammals, but that may incidentally take marine mammals, is not included in this definition (see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA, and sections 7(b)(4) and 10(a)(1)(B) of the ESA). Bycatch limit Carrying capacity Certified charter vessel Co-investigator Commercial fishing operation Commercial passenger fishing vessel Comparability finding Custody Declaration of Panama Director, Office of Protected Resources Dolphin Mortality Limit (DML) Endangered Species ESA et seq. ETP Exempt fishery (1) Ten percent or less of any marine mammal stock's bycatch limit; or (2) More than 10 percent of any marine mammal stock's bycatch limit, yet that fishery by itself removes 1 percent or less of that stock's bycatch limit annually; or (3) Where reliable information has not been provided by the harvesting nation on the frequency of incidental mortality and serious injury of marine mammals caused by the commercial fishing operation, the Assistant Administrator may determine whether the likelihood of incidental mortality and serious injury is “remote” by evaluating information concerning factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, the species and distribution of marine mammals in the area, or other factors at the discretion of the Assistant Administrator. A foreign fishery will not be classified as an exempt fishery unless the Assistant Administrator has reliable information from the harvesting nation, or other information to support such a finding. Exemption period Export fishery Facility (2) A traveling display/exhibit, where the enclosure(s) and associated infrastructure is transported together with the marine mammals. Feeding First exporter Fish and fish product Fisheries Certificate of Origin FCO Force majeure FSA et seq. Fur seal Callorhinus ursinus. Hard part Harvesting nation Humane Import Incidental catch Provided, Intentional purse seine set Intermediary nation International Dolphin Conservation Program (IDCP) International Dolphin Conservation Program Act (IDCPA) International Review Panel (IRP) Intrusive research (1) A procedure conducted by the professional staff of the holding facility or an attending veterinarian for purposes of animal husbandry, care, maintenance, or treatment, or a routine medical procedure that, in the reasonable judgment of the attending veterinarian, would not constitute a risk to the health or welfare of the captive animal; or (2) A procedure involving either the introduction of a substance or object (i.e., as described in this definition) or a stimulus directed at animals that, in the reasonable judgment of the attending veterinarian, would not involve a risk to the health or welfare of the captive animal. Label Land landing Large-scale driftnet Level A Harassment Level B Harassment List of Foreign Fisheries Federal Register Longtail tuna Thunnus tonngol. Marine environment Marine mammal MMPA et seq. Native village or town Optimum sustainable population Per-stock per-year dolphin mortality limit Pregnant Pribilovians Principal investigator Public display Regional Director Rehabilitation Secretary Serious injury Sexual harassment Skipjack tuna Euthynnus (Katsuwonus) pelamis. Soft part South Pacific Ocean South Pacific Tuna Treaty Southern bluefin tuna Thunnus maccoyii. Stranded stranded marine mammal (1) If the specimen is dead, and is on a beach or shore, or is in the water within the Exclusive Economic Zone of the United States; or (2) If the specimen is alive, and is on a beach or shore and is unable to return to the water, or is in the water within the Exclusive Economic Zone of the United States where the water is so shallow that the specimen is unable to return to its natural habitat under its own power. Subsistence Subsistence uses (1) Family (2) Barter (i) For other wildlife or fish or their parts, or (ii) For other food or for nonedible items other than money if the exchange is of a limited and noncommercial nature. Take Threatened species Transboundary stock (1) Exclusive economic zones or territorial sea of the United States and one or more other coastal States; or (2) Exclusive economic zone or territorial sea of the United States and on the high seas. Trip Tuna Euthynnus (Katsuwonus) pelamis. Tuna product Wasteful manner U.S. regulatory program Yellowfin tuna Thunnus albacares Neothunnus macropterus [39 FR 1852, Jan. 15, 1974] Editorial Note: For Federal Register www.govinfo.gov. § 216.4 Other laws and regulations. (a) Federal. (b) State laws or regulations. [39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, 1993] § 216.5 Payment of penalty. The respondent shall have 30 days from receipt of the final assessment decision within which to pay the penalty assessed. Upon a failure to pay the penalty, the Secretary may request the Attorney General to institute a civil action in the appropriate United States District Court to collect the penalty. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981] § 216.6 Forfeiture and return of seized property. (a) Whenever any cargo or marine mammal or marine mammal product has been seized pursuant to section 107 of the MMPA, the Secretary shall expedite any proceedings commenced under these regulations. (b) Whenever a civil penalty has been assessed by the Secretary under these regulations, any cargo, marine mammal, or marine mammal product seized pursuant to section 107 of the MMPA shall be subject to forfeiture. If respondent voluntarily forfeits any such seized property or the monetary value thereof without court proceedings, the Secretary may apply the value thereof, if any, as determined by the Secretary, toward payment of the civil penalty. (c) Whenever a civil penalty has been assessed under these regulations, and whether or not such penalty has been paid, the Secretary may request the Attorney General to institute a civil action in an appropriate United States District Court to compel forfeiture of such seized property or the monetary value thereof to the Secretary for disposition by him in such manner as he deems appropriate. If no judicial action to compel forfeiture is commenced within 30 days after final decision-making assessment of a civil penalty, pursuant to § 216.60, such seized property shall immediately be returned to the respondent. (d) If the final decision of the Secretary under these regulations is that respondent has committed no violation of the MMPA or of any permit or regulations issued thereunder, any marine mammal, marine mammal product, or other cargo seized from respondent in connection with the proceedings under these regulations, or the bond or other monetary value substituted therefor, shall immediately be returned to the respondent. (e) If the Attorney General commences criminal proceedings pursuant to section 105(b) of the MMPA, and such proceedings result in a finding that the person accused is not guilty of a criminal violation of the MMPA, the Secretary may institute proceedings for the assessment of a civil penalty under this part: Provided, (f) If any seized property is to be returned to the respondent, the Regional Director shall issue a letter authorizing such return. This letter shall be dispatched to the respondent by registered mail, return receipt requested, and shall identify the respondent, the seized property, and, if appropriate, the bailee of the seized property. It shall also provide that upon presentation of the letter and proper identification, the seized property is authorized to be released. All charges for storage, care, or handling of the seized property accruing 5 days or more after the date of the return receipt shall be for the account of the respondent: Provided, [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994] § 216.7 Holding and bonding. (a) Any marine mammal, marine mammal product, or other cargo seized pursuant to section 107 of the MMPA shall be delivered to the appropriate Regional Director of the National Marine Fisheries Service (see § 201.2 of this title) or his designee, who shall either hold such seized property or arrange for the proper handling and care of such seized property. (b) Any arrangement for the handling and care of seized property shall be in writing and shall state the compensation to be paid. Subpart F of 15 CFR part 904 contains additional procedures that govern seized property that is subject to forfeiture or has been forfeited under the MMPA. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] § 216.8 Enforcement officers. Enforcement Agents of the National Marine Fisheries Service shall enforce the provisions of the MMPA and may take any actions authorized by the MMPA with respect to enforcement. In addition, the Secretary may utilize, by agreement, the personnel, services, and facilities of any other Federal Agency for the purposes of enforcing this MMPA. Pursuant to the terms of section 107(b) of the MMPA, the Secretary may also designate officers and employees of any State or of any possession of the United States to enforce the provisions of this MMPA. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994] Subpart B—Prohibitions § 216.11 Prohibited taking. Except as otherwise provided in subparts C, D, and I of this part 216 or in part 228 or 229, it is unlawful for: (a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas, or (b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States, or (c) Any person subject to the jurisdiction of the United States to take any marine mammal during the moratorium. [39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 FR 21921, May 19, 1989] § 216.12 Prohibited importation. (a) Except as otherwise provided in subparts C and D of this part 216, it is unlawful for any person to import any marine mammal or marine mammal product into the United States. (b) Regardless of whether an importation is otherwise authorized pursuant to subparts C and D of this part 216, it is unlawful for any person to import into the United States any: (1) Marine mammal: (i) Taken in violation of the MMPA, or (ii) Taken in another country in violation to the laws of that country; (2) Any marine mammal product if (i) The importation into the United States of the marine mammal from which such product is made would be unlawful under paragraph (b)(1) of this section, or (ii) The sale in commerce of such product in the country of origin if the product is illegal. (c) Except in accordance with an exception referred to in subpart C and §§ 216.31 (regarding scientific research permits only) and 216.32 of this part 216, it is unlawful to import into the United States any: (1) Marine mammal which was pregnant at the time of taking. (2) Marine mammal which was nursing at the time of taking, or less than 8 months old, whichever occurs later. (3) Specimen of an endangered or threatened species of marine mammal. (4) Specimen taken from a depleted species or stock of marine mammals, or (5) Marine mammal taken in an inhumane manner. (d) It is unlawful to import into the United States any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner proscribed by the Secretary of Commerce for persons subject to the jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the catching of the fish. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994] § 216.13 Prohibited uses, possession, transportation, sales, and permits. It is unlawful for: (a) Any person to use any port, harbor or other place under the jurisdiction of the United States for any purpose in any way connected with a prohibited taking or an unlawful importation of any marine mammal or marine mammal product; or (b) Any person subject to the jurisdiction of the United States to possess any marine mammal taken in violation of the MMPA or these regulations, or to transport, sell, or offer for sale any such marine mammal or any marine mammal product made from any such mammal. (c) Any person subject to the jurisdiction of the United States to use in a commercial fishery, any means or method of fishing in contravention of regulations and limitations issued by the Secretary of Commerce for that fishery to achieve the purposes of this MMPA. (d) Any person to violate any term, condition, or restriction of any permit issued by the Secretary. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996] § 216.14 Marine mammals taken before the MMPA. (a) Section 102(e) of the MMPA provides, in effect, that the MMPA shall not apply to any marine mammal taken prior to December 21, 1972, or to any marine mammal product, consisting of or composed in whole or in part of, any marine mammal taken before that date. This prior status of any marine mammal or marine mammal product may be established by submitting to the Director, National Marine Fisheries Service prior to, or at the time of importation, an affidavit containing the following: (1) The Affiant's name and address; (2) Identification of the Affiant; (3) A description of the marine mammals or marine mammal products which the Affiant desires to import; (4) A statement by the Affiant that, to the best of his knowledge and belief, the marine mammals involved in the application were taken prior to December 21, 1972; (5) A statement by the Affiant in the following language: The foregoing is principally based on the attached exhibits which, to the best of my knowledge and belief, are complete, true and correct. I understand that this affidavit is being submitted for the purpose of inducing the Federal Government to permit the importation of—under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and regulations promulgated thereunder, and that any false statements may subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 1972. (b) Either one of two exhibits shall be attached to such affidavit, and will contain either: (1) Records or other available evidence showing that the product consists of or is composed in whole or in part of marine mammals taken prior to the effective date of the MMPA. Such records or other evidentiary material must include information on how, when, where, and by whom the animals were taken, what processing has taken place since taking, and the date and location of such processing; or (2) A statement from a government agency of the country of origin exercising jurisdiction over marine mammals that any and all such mammals from which the products sought to be imported were derived were taken prior to December 21, 1972. (c) No pre-Act marine mammal or pre-Act marine mammal product may be imported unless the requirements of this section have been fulfilled. (d) This section has no application to any marine mammal or marine mammal product intended to be imported pursuant to §§ 216.21, 216.31 or § 216.32. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994] § 216.15 Depleted species. The following species or population stocks have been designated by the Assistant Administrator as depleted under the provisions of the MMPA. (a) Hawaiian monk seal ( Monachus schauinslandi (b) Bowhead whale ( Balaena mysticetus (c) North Pacific fur seal ( Callorhinus ursinus (d) Bottlenose dolphin ( Tursiops truncatus (e) Eastern spinner dolphin ( Stenella longirostris orientalis (f) Northeastern offshore spotted dolphin ( Stenella attenuata (g) Cook Inlet, Alaska, stock of beluga whales ( Delphinapterus leucas (h) Eastern North Pacific Southern Resident stock of killer whales (Orcinus orca). The stock includes all resident killer whales in pods J, K, and L in the waters of, but not limited to, the inland waterways of southern British Columbia and Washington, including the Georgia Strait, the Strait of Juan de Fuca, and Puget Sound. (i) AT1 stock of killer whales ( Orcinus orca (j) Sakhalin Bay-Nikolaya Bay-Amur River beluga whales ( Delphinapterus leucas [53 FR 17899, May 18, 1988, as amended at 58 FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Oct. 3, 1994; 65 FR 34597, May 31, 2000; 68 FR 31983, May 29, 2003; 69 FR 31324, June 3, 2004; 81 FR 74719, Oct. 27, 2016] § 216.16 Prohibitions under the General Authorization for Level B harassment for scientific research. It shall be unlawful for any person to: (a) Provide false information in a letter of intent submitted pursuant to § 216.45(b); (b) Violate any term or condition imposed pursuant to § 216.45(d). [59 FR 50376, Oct. 3, 1994] § 216.17 General prohibitions. It is unlawful for any person to: (a) Assault, resist, oppose, impede, intimidate, threaten, or interfere with any authorized officer in the conduct of any search, inspection, investigation or seizure in connection with enforcement of the MMPA, DPCIA, or IDCPA. (b) Interfere with, delay, or prevent by any means the apprehension of another person, knowing that such person has committed any act prohibited by the MMPA. (c) Resist a lawful arrest for any act prohibited under the MMPA. (d) Make any false statement, oral or written, to an authorized officer concerning any act under the jurisdiction of the MMPA, DPCIA, IDCPA, or attempt to do any of the above. (e) Interfere with, obstruct, delay, or prevent by any means an investigation, search, seizure, or disposition of seized property in connection with enforcement of the MMPA, DPCIA, or IDCPA. [70 FR 19008, Apr. 12, 2005] § 216.18 Approaching humpback whales in Alaska. (a) Prohibitions. Megaptera novaeangliae (1) Approach, by any means, including by interception ( i.e., (2) Cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale; or (3) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; escape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movement; or the abandonment of a previously frequented area. (b) Exceptions. (1) Paragraph (a) of this section does not apply if an approach is authorized by the National Marine Fisheries Service through a permit issued under subpart D of this part (Special Exceptions) or through a similar authorization. (2) Paragraph (a) of this section does not apply to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply with paragraph (a) of this section. (3) Paragraph (a) of this section does not apply to commercial fishing vessels lawfully engaged in actively setting, retrieving or closely tending commercial fishing gear. For purposes of this section, commercial fishing means taking or harvesting fish or fishery resources to sell, barter, or trade. Commercial fishing does not include commercial passenger fishing operations ( i.e., (4) Paragraph (a) of this section does not apply to state, local, or Federal government vessels operating in the course of official duty. (5) Paragraph (a) of this section does not affect the rights of Alaska Natives under 16 U.S.C. 1539(e). (6) This section shall not take precedence over any more restrictive conflicting Federal regulation pertaining to humpback whales, including the regulations at 36 CFR 13.1102-13.1188 that pertain specifically to the waters of Glacier Bay National Park and Preserve. (c) General measures. [81 FR 62020, Sept. 8, 2016] § 216.19 Special restrictions for humpback whales in waters surrounding the islands of Hawaii. (a) Prohibitions. Megaptera novaeangliae (1) Operate any aircraft within 1,000 feet (304.8 m) of any humpback whale; (2) Approach, by any means, within 100 yards (91.4 m) of any humpback whale; (3) Cause a vessel, person, or other object to approach within 100 yards (91.4 m) of a humpback whale; (4) Approach a humpback whale by interception ( i.e., (5) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; escape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities; attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movements; or the abandonment of a previously frequented area. (b) Exceptions. (1) Federal, State, or local government vessels, personnel, and assets, when necessary, in the course of performing official duties; (2) Vessel operations necessary to avoid an imminent and serious threat to a person, vessel, or the environment; (3) Vessels restricted in their ability to maneuver that, because of this restriction, are not able to comply with approach restrictions; or (4) Activities authorized through a permit or authorization issued by the National Marine Fisheries Service to take humpback whales. (c) Affirmative defense. (2) [Reserved] [81 FR 62017, Sept. 8, 2016, as amended at 88 FR 88265, Dec. 21, 2023] § 216.20 Special restrictions for Hawaiian spinner dolphins. (a) Applicability. (1) In all waters within 2 nautical miles (nmi) of the main Hawaiian Islands, and (2) In all waters bounded by the islands of Lāna`i, Maui, and Kaho`olawe enclosed by 3 line segments that connect points on the 2-nmi boundary between the islands as follows: The straight line between 20°32′51″ N/156°43′50″ W (Kaho`olawe) and 20°42′4″ N/156°55′34″ W (Lāna`i), the straight line between 20°51′1″ N/156°54′0″ W (Lāna`i) and 20°59′48″ N/156°42′28″ W (Maui), and the straight line between 20°33′55″ N/156°26′43″ W (Maui) and 20°32′15″ N/156°29′51″ W (Kaho`olawe) (all coordinates referenced to The World Geodetic System of 1984 (WGS 84)). Table 1 to Paragraph ( a [All coordinates referenced to The World Geodetic System of 1984 (WGS 84).] Line segment between islands Figure 3 label Latitude Longitude Kaho`olawe and Lāna`i A1 20°32′51″ N 156°43′50″ W A2 20°42′4″ N 156°55′34″ W Lāna`i and Maui B1 20°51′1″ N 156°54′0″ W B2 20°59′48″ N 156°42′28″ W Maui and Kaho`olawe C1 20°33′55″ N 156°26′43″ W C2 20°32′15″ N 156°29′51″ W * (see Figure 3 of this section). (b) Prohibitions. (1) Approach or remain within 50 yards (45.7 m) of a Hawaiian spinner dolphin by any means; (2) Swim within 50 yards (45.7 m) of a Hawaiian spinner dolphin; (3) Cause a vessel, person, or other object to approach or remain within 50 yards (45.7 m) of a Hawaiian spinner dolphin; or (4) Intercept or place a vessel, person, or other object in the path of a Hawaiian spinner dolphin so that the dolphin approaches within 50 yards (45.7 m) of the vessel, person, or object. (c) Exceptions. (1) Any person who inadvertently comes within 50 yards (45.7 m) of a Hawaiian spinner dolphin or is approached by a spinner dolphin, provided the person makes no effort to engage or pursue the animal and takes immediate steps to move away from the animal; (2) Any vessel that is underway and is approached by a Hawaiian spinner dolphin, provided the vessel continues normal navigation and makes no effort to engage or pursue the animal. For purposes of this exception, a vessel is defined as a watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water (1 U.S.C. 3); a vessel is underway if it is not made fast to the shore, at anchor, or aground; (3) Any vessel transiting to or from a port, harbor, or in a restricted channel when a 50-yard (45.7 m) distance will not allow the vessel to maintain safe navigation; (4) Vessel operations necessary to avoid an imminent and serious threat to a person or vessel; (5) Any vessel that is anchored or aground and is approached by a Hawaiian spinner dolphin, provided the vessel makes no effort to engage or pursue the animal; (6) Activities authorized through a permit or authorization issued by the National Marine Fisheries Service to take Hawaiian spinner dolphins; (7) Federal, State, or local government vessels, aircraft, personnel, and assets when necessary in the course of performing official duties; (8) Commercial fishing vessels that incidentally take spinner dolphins during the course of commercial fishing operations, provided such vessels operate in compliance with a valid marine mammal authorization in accordance with MMPA section 118(c). (d) Affirmative defense. (e) Maps of areas for Hawaiian spinner dolphin special restrictions. 86 FR 53841, Sept. 28, 2021] Subpart C—General Exceptions § 216.21 Actions permitted by international treaty, convention, or agreement. The MMPA and these regulations shall not apply to the extent that they are inconsistent with the provisions of any international treaty, convention or agreement, or any statute implementing the same relating to the taking or importation of marine mammals or marine mammal products, which was existing and in force prior to December 21, 1972, and to which the United States was a party. Specifically, the regulations in subpart B of this part and the provisions of the MMPA shall not apply to activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals signed at Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 1151 through 1187, as in each case, from time to time amended. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994] § 216.22 Taking by State or local government officials. (a) A State or local government official or employee may take a marine mammal in the normal course of his duties as an official or employee, and no permit shall be required, if such taking: (1) Is accomplished in a humane manner; (2) Is for the protection or welfare of such mammal or for the protection of the public health or welfare; and (3) Includes steps designed to insure return of such mammal, if not killed in the course of such taking, to its natural habitat. In addition, any such official or employee may, incidental to such taking, possess and transport, but not sell or offer for sale, such mammal and use any port, harbor, or other place under the jurisdiction of the United States. All steps reasonably practicable under the circumstances shall be taken by any such employee or official to prevent injury or death to the marine mammal as the result of such taking. Where the marine mammal in question is injured or sick, it shall be permissible to place it in temporary captivity until such time as it is able to be returned to its natural habitat. It shall be permissible to dispose of a carcass of a marine mammal taken in accordance with this subsection whether the animal is dead at the time of taking or dies subsequent thereto. (b) Each taking permitted under this section shall be included in a written report to be submitted to the Secretary every six months beginning December 31, 1973. Unless otherwise permitted by the Secretary, the report shall contain a description of: (1) The animal involved; (2) The circumstances requiring the taking; (3) The method of taking; (4) The name and official position of the State official or employee involved; (5) The disposition of the animal, including in cases where the animal has been retained in captivity, a description of the place and means of confinement and the measures taken for its maintenance and care; and (6) Such other information as the Secretary may require. (c) Salvage of dead stranded marine mammals or parts therefrom and subsequent transfer. (1) Salvage. (2) Registration. (i) The name, address, and any official position of the individual engaged in the taking and salvage; (ii) A description of the marine mammal specimen salvaged including the scientific and common names of the species; (iii) A description of the parts salvaged; (iv) The date and the location of the taking; (v) Such other information as deemed necessary by the Assistant Administrator. (3) Identification and curation. (4) No sale or commercial trade. (5) Transfer without prior authorization. (i) The person transferring the marine mammal specimen does not receive remuneration for the specimen; (ii) The person receiving the marine mammal specimen is an employee of the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, or any other Federal agency with jurisdiction and conservation responsibilities in marine shoreline areas; is a person authorized under 16 U.S.C. 1382(c); or is a person who has received prior authorization under paragraph (c)(6) of this section; (iii) The marine mammal specimen is transferred for the purpose of scientific research, for the purpose of maintenance in a properly curated, professionally accredited scientific collection, or for educational purposes; (iv) The unique number assigned by the National Marine Fisheries Service is on, marked on, or affixed to the marine mammal specimen or container; and (v) Except as provided under paragraph (c)(8) of this section, the person transferring the marine mammal specimen notifies the appropriate Regional Office of the National Marine Fisheries Service of the transfer, including notification of the number of the specimen transferred and the person to whom the specimen was transferred, within 30 days after the transfer occurs. (6) Other transfers within the United States. (7) Tranfers outside of the United States. (8) Exceptions to requirements for notification or prior authorization. (i) The transfer is a temporary transfer to a laboratory or research facility within the United States so that analyses can be performed for the person salvaging the specimen; or (ii) The transfer is a loan of not more than 1 year to another professionally accredited scientific collection within the United States. [39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991] § 216.23 Native exceptions. (a) Taking. (1) By Alaskan Natives who reside in Alaska for subsistence, or (2) For purposes of creating and selling authentic native articles of handicraft and clothing, and (3) In each case, not accomplished in a wasteful manner. (b) Restrictions. (i) It is being sent by an Alaskan Native directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Alaskan Native; or (ii) It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan Native; or (iii) It is an edible portion and it is sold in an Alaskan Native village or town. (2) No marine mammal taken for purposes of creating and selling authentic native articles of handicraft and clothing may be sold or otherwise transferred to any person other than an Indian, Aleut or Eskimo, or delivered, carried, transported or shipped in interstate or foreign commerce, unless: (i) It is being sent by an Indian, Aleut or Eskimo directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Indian, Aleut or Eskimo; or (ii) It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo; or (iii) It has first been transformed into an authentic native article of handicraft or clothing; or (iv) It is an edible portion and sold (A) in an Alaskan Native village or town, or (B) to an Alaskan Native for his consumption. (c) Any tannery, or person who wishes to act as an agent, within the jurisdiction of the United States may apply to the Director, National Marine Fisheries Service, U.S. Department of Commerce, Washington, DC 20235, for registration as a tannery or an agent which may possess and process marine mammal products for Indians, Aleuts, or Eskimos. The application shall include the following information: (i) The name and address of the applicant; (ii) A description of the applicant's procedures for receiving, storing, processing, and shipping materials; (iii) A proposal for a system of bookkeeping and/or inventory segregation by which the applicant could maintain accurate records of marine mammals received from Indians, Aleuts, or Eskimos pursuant to this section; (iv) Such other information as the Secretary may request; (v) A certification in the following language: I hereby certify that the foregoing information is complete, true and correct to the best of my knowledge and belief. I understand that this information is submitted for the purpose of obtaining the benefit of an exception under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and regulations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 1972. (vi) The signature of the applicant. The sufficiency of the application shall be determined by the Secretary, and in that connection, he may waive any requirement for information, or require any elaboration or further information deemed necessary. The registration of a tannery or other agent shall be subject to such conditions as the Secretary prescribes, which may include, but are not limited to, provisions regarding records, inventory segregation, reports, and inspection. The Secretary may charge a reasonable fee for processing such applications, including an appropriate apportionment of overhead and administrative expenses of the Department of Commerce. (d) Notwithstanding the preceding provisions of this section, whenever, under the MMPA, the Secretary determines any species of stock of marine mammals to be depleted, he may prescribe regulations pursuant to section 103 of the MMPA upon the taking of such marine animals by any Indian, Aleut, or Eskimo and, after promulgation of such regulations, all takings of such marine mammals shall conform to such regulations. (e) Marking and reporting of Cook Inlet Beluga Whales Definitions. (i) Reporting Delphinapterus leucas (ii) Whaling captain or vessel operator (iii) Cook Inlet (2) Marking. Delphinapterus leucas (3) Reporting. (i) To be complete, the form must contain the following information: the date and location of kill, the method of harvest, and the coloration of the whale. The respondent will also be invited to report on any other observations concerning the animal or circumstance of the harvest. (ii) Data collected pursuant to paragraph (e) of this section will be reported on forms obtained from the Anchorage Field Office. These data will be maintained in the NMFS Alaska Regional Office in Juneau, Alaska, where such data will be available for public review. (4) No person may falsify any information required to be set forth on the reporting form as required by paragraph (e) of this section. (5) The Anchorage Field Office of NMFS is located in room 517 of the Federal Office Building, 222 West 7th Avenue; its mailing address is: NMFS, Box 43, Anchorage, AK. 99513. (f) Harvest management of Cook Inlet beluga whales Cooperative management of subsistence harvest. (2) Limitations. Sale of Cook Inlet beluga whale parts and products. (ii) Beluga whale calves or adults with calves. (iii) Season. (iv) Taking during 2001-2004. (A) Strike limitations. (B) Strike allocations. (C) Emergency provisions. (v) Taking during 2008 and subsequent years. (B) Strike/harvest levels for each 5-year planning interval beginning in 2008 will be determined by the recovery of this stock as measured by the average abundance in the prior 5-year interval and the best estimate of the population growth rate using information obtained in the 10 years prior to each 5-year interval. Criteria for categorizing growth rates are presented below as an algorithm using the estimated abundance, the distribution statistics for growth rates, and the date. Harvest levels are subject to the Expected Mortality Limit. The established strike levels are presented in the Harvest Table and the following algorithm will be used to determine harvest levels for each 5-year period beginning in 2008. ( 1 ( 2 ( 3 1 2 3 i 3 vi ( i 3 ii ( ii 3 iii ( iii 3 iv ( iv 3 vi ( v 3 vi ( vi Harvest Table 5-year population averages “High” growth rate “Intermediate” growth rate “Low” growth rate Expected Mortality 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 32 550-574 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 period, an Expected Mortality Limit is determined from the Harvest Table using the 5-year average abundance. During the course of each calendar year, the number of beach casts carcasses and carcasses found floating either reported to NMFS or observed by NMFS personnel will be the number of mortalities for that year. If at the end of each calendar year this number exceeds the Expected Mortality Limit, then an unusual mortality event has occurred. The Estimated Excess Mortalities will be calculated as twice the number of reported dead whales above the Expected Mortality Limit. The harvest will then be adjusted as follows: ( 1 ( 2 [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, 1999; 69 FR 17980, Apr. 6, 2004; 73 FR 60985, Oct. 15, 2008] § 216.24 Taking and related acts in commercial fishing operations including tuna purse seine vessels in the eastern tropical Pacific Ocean. (a)(1) No marine mammal may be taken in the course of a commercial fishing operation by a U.S. purse seine fishing vessel in the ETP unless the taking constitutes an incidental catch as defined in § 216.3, and vessel and operator permits have been obtained in accordance with these regulations, and such taking is not in violation of such permits or regulations. (2)(i) It is unlawful for any person using a U.S. purse seine fishing vessel of 400 short tons (st) (362.8 metric tons (mt)) carrying capacity or less to intentionally deploy a net on or to encircle dolphins, or to carry more than two speedboats, if any part of its fishing trip is in the ETP. (ii) It is unlawful for any person using a U.S. purse seine fishing vessel of greater than 400 st (362.8 mt) carrying capacity that does not have a valid permit obtained under these regulations to catch, possess, or land tuna if any part of the vessel's fishing trip is in the ETP. (iii) It is unlawful for any person subject to the jurisdiction of the United States to receive, purchase, or possess tuna caught, possessed, or landed in violation of paragraph (a)(2)(ii) of this section. (iv) It is unlawful for any person subject to the jurisdiction of the United States to intentionally deploy a purse seine net on, or to encircle, dolphins from a vessel operating in the ETP when there is not a DML assigned to that vessel. (v) It is unlawful for any person subject to the jurisdiction of the United States to intentionally deploy a purse seine net on, or to encircle, dolphins from a vessel operating in the ETP with an assigned DML after a set in which the DML assigned to that vessel has been reached or exceeded. (vi) Alleged violations of the Agreement on the IDCP and/or these regulations identified by the International Review Panel will be considered for potential enforcement action by NMFS. (3) Upon written request made in advance of entering the ETP, the limitations in paragraphs (a)(2)(ii) and (e)(1) of this section may be waived by the Administrator, West Coast Region, for the purpose of allowing transit through the ETP. The waiver will provide, in writing, the terms and conditions under which the vessel must operate, including a requirement to report to the Administrator, West Coast Region, the vessel's date of exit from or subsequent entry into the permit area. (b) Permits Vessel permit. (2) Operator permit. (3) Possession and display. (4) Application for vessel permit. (5) Application for operator permit. (6) Fees Vessel permit application fees. (ii) Operator permit fee. (iii) Vessel assessment fee. (A) The owner or managing owner of a purse seine vessel for which a DML has been requested must submit the vessel assessment fee to the IATTC, no later than September 15 of the year prior to the calendar year for which the DML is requested. Payment of the vessel assessment fee must be consistent with the fee for active status on the Vessel Register under § 300.23(c)(2)(ii) of this title. (B) The owner or managing owner of a purse seine vessel for which active or inactive status on the Vessel Register, as defined in § 300.21 of this title, has been requested, but for which a DML has not been requested, must submit payment of the vessel assessment fee to the IATTC, no later than November 30 of the year prior to the calendar year in which the vessel will be listed on the Vessel Register. Payment of the vessel assessment fee is required only if the vessel is listed as active and is required to carry an observer, or if the vessel is listed as inactive and exceeds 400 short tons (362.8 mt) in carrying capacity. Payment of the vessel assessment fee must be consistent with the vessel's status, either active or inactive, on the Vessel Register in § 300.23(c) of this title. (C) The owner or managing owner of a purse seine vessel that is permitted and authorized under an alternative international tuna purse seine fisheries management regime in the Pacific Ocean must submit the vessel assessment fee to the IATTC, prior to obtaining an observer and entering the ETP to fish. Consistent with § 300.23(a)(1) of this title, this class of purse seine vessels is not required to be listed on the Vessel Register under § 300.23(c) of this title in order to purse seine for tuna in the ETP during a single fishing trip per calendar year of 90 days or less. Payment of the vessel assessment fee must be consistent with the fee for active status on the Vessel Register under § 300.23(c)(2) of this title. (D) The owner or managing owner of a purse seine vessel listed as inactive on the Vessel Register at the beginning of the calendar year, and who requests active status on the Vessel Register under § 300.23(c)(2) of this title during the year, must pay the vessel assessment fee associated with active status, less the vessel assessment fee associated with inactive status that was already paid, before NMFS will request the IATTC Director change the status of the vessel from inactive to active. Payment of the vessel assessment fee is required only if the vessel is required to carry an observer. (E) The owner or managing owner of a purse seine vessel not listed on the Vessel Register at the beginning of the calendar year and who requests to replace a vessel removed from active status on the Vessel Register under § 300.23(h)(2) of this title during the year, must pay the vessel assessment fee associated with active status only if the vessel is required to carry an observer, before NMFS will request the IATTC Director change the status of the vessel to active. (F) Payments will be subject to a 10 percent surcharge if received under paragraph (b)(6)(iii)(E) of this section for vessels that were listed as active on the Vessel Register in the calendar year prior to the year for which active status was requested; or if received after the dates specified in paragraph (b)(6)(iii)(A) or (B) of this section for vessels for which active status is requested if the vessel was listed as active during the year the request was made. Payments will not be subject to a 10 percent surcharge if received under paragraph (b)(6)(iii)(C) or (D) of this section, or if received under paragraph (b)(6)(iii)(E) of this section for vessels that were not listed as active on the Vessel Register in the calendar year prior to the year for which active status was requested. Payments will also not be subject to a 10 percent surcharge if received after the date specified in paragraph (b)(6)(iii)(B) of this section for vessels for which inactive status is requested, or for vessels for which active status is requested if the vessel was not listed as active during the year the request was made. Payment of all vessel assessment fees described in this section must be made to the IATTC. (7) Application approval. (8) Conditions applicable to all permits General conditions. (ii) Observer placement. (iii) Explosives. (iv) Reporting requirements. (B) The vessel permit holder must notify the Administrator, West Coast Region, or the IATTC contact designated by the Administrator, West Coast Region, of any change of vessel operator at least 48 hours prior to departing on a fishing trip. In the case of a change in operator due to an emergency, notification must be made within 72 hours of the change. (v) Data release. (9) Mortality and serious injury reports. (c) Purse seining by vessels with Dolphin Mortality Limits (DMLs). (1) A vessel may be used to chase and encircle schools of dolphins in the ETP only under the immediate direction of the holder of a valid operator's permit. (2) No retention of live marine mammals. (3) Gear and equipment required for valid permit. (i) Dolphin safety panel. 1/4 1/4 (ii) Dolphin safety panel markers. (iii) Dolphin safety panel hand holds. 3/8 (iv) Dolphin safety panel corkline hangings. 3/8 3/8 (v) Speedboats. (vi) Raft. (vii) Facemask and snorkel, or viewbox. (viii) Lights. (4) Vessel inspection Twice per year. (ii) Reinspection. (iii) Failure to pass inspection. (5) Operator permit holder training requirements. (6) Marine mammal release requirements. (i) Backdown procedure. (ii) Prohibited use of sharp or pointed instrument. (iii) Sundown sets prohibited. (iv) Dolphin safety panel. (7) Experimental fishing operations. (i) A vessel permit holder may apply for an experimental fishing operation waiver by submitting the following information to the Administrator, West Coast Region, no less than 90 days before the date the proposed operation is intended to begin: (A) The name(s) of the vessel(s) and the vessel permit holder(s) to participate; (B) A statement of the specific vessel gear and equipment or procedural requirement to be exempted and why such an exemption is necessary to conduct the experiment; (C) A description of how the proposed modification to the gear and equipment or procedures is expected to reduce incidental mortality or serious injury of marine mammals; (D) A description of the applicability of this modification to other purse seine vessels; (E) The planned design, time, duration, and general area of the experimental operation; (F) The name(s) of the permitted operator(s) of the vessel(s) during the experiment; (G) A statement of the qualifications of the individual or company doing the analysis of the research; and (H) Signature of the permitted operator or of the operator's representative. (ii) The Administrator, West Coast Region, will acknowledge receipt of the application and, upon determining that it is complete, will publish a notice in the Federal Register (iii) The Administrator, West Coast Region, after considering the information submitted in the application identified in paragraph (c)(7)(i) of this section and the comments received, will either issue a waiver to conduct the experiment that includes restrictions or conditions deemed appropriate, or deny the application, giving the reasons for denial. (iv) A waiver for an experimental fishing operation will be valid only for the vessels and operators named in the permit, for the time period and areas specified, for trips carrying an observer designated by the Administrator, West Coast Region, and when all the terms and conditions of the permit are met. (v) The Administrator, West Coast Region, may suspend or revoke an experimental fishing waiver in accordance with 15 CFR part 904 if the terms and conditions of the waiver or the provisions of the regulations are not followed. (8) Operator permit holder performance requirements. (9) Vessel permit holder dolphin mortality limits. (i) By September 1 each year, a vessel permit holder desiring a DML for the following year must provide to the Administrator, West Coast Region, the name of the U.S. purse seine fishing vessel(s) of carrying capacity greater than 400 st (362.8 mt) that the owner intends to use to intentionally deploy purse seine fishing nets in the ETP to encircle dolphins in an effort to capture tuna during the following year. NMFS will forward the list of purse seine vessels to the Director of the IATTC on or before October 1, or as otherwise required by the IDCP, for assignment of a DML for the following year under the provisions of Annex IV of the Agreement on the IDCP. (ii) Each vessel permit holder that desires a DML only for the period between July 1 to December 31 must provide the Administrator, West Coast Region, by September 1 of the prior year, the name of the U.S. purse seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying capacity that the owner intends to use to intentionally deploy purse seine fishing nets in the ETP to encircle dolphins in an effort to capture tuna during the period. NMFS will forward the list of purse seine vessels to the Director of the IATTC on or before October 1, or as otherwise required under the IDCP, for possible assignment of a DML for the 6-month period July 1 to December 31. Under the IDCP, the DML will be calculated by the IDCP from any unutilized pool of DMLs in accordance with the procedure described in Annex IV of the Agreement on the IDCP and will not exceed one-half of an unadjusted full-year DML as calculated by the IDCP. (iii)(A) The Administrator, West Coast Region, will notify vessel owners of the DML assigned for each vessel for the following year, or the second half of the year, as applicable. (B) The Administrator, West Coast Region, may adjust the DMLs in accordance with Annex IV of the Agreement on the IDCP. All adjustments of full-year DMLs will be made before January 1, and the Administrator, West Coast Region, will notify the Director of the IATTC of any adjustments prior to a vessel departing on a trip using its adjusted DML. The notification will be no later than February 1 in the case of adjustments to full-year DMLs, and no later than May 1 in the case of adjustments to DMLs for the second half of the year. (C) In accordance with the requirements of Annex IV of the Agreement on the IDCP, the Administrator, West Coast Region, may adjust a vessel's DML if it will further scientific or technological advancement in the protection of marine mammals in the fishery or if the past performance of the vessel indicates that the protection or use of the yellowfin tuna stocks or marine mammals is best served by the adjustment, within the mandates of the MMPA. Experimental fishing operation waivers or scientific research permits will be considered a basis for adjustments. (iv)(A) A vessel assigned a full-year DML that does not make a set on dolphins by April 1 or that leaves the fishery will lose its DML for the remainder of the year, unless the failure to set on dolphins is due to force majeure or other extraordinary circumstances as determined by the International Review Panel. (B) A vessel assigned a DML for the second half of the year will be considered to have lost its DML if the vessel has not made a set on dolphins before December 31, unless the failure to set on dolphins is due to force majeure or extraordinary circumstances as determined by the International Review Panel. (C) Any vessel that loses its DML for 2 consecutive years will not be eligible to receive a DML for the following year. (D) NMFS will determine, based on available information, whether a vessel has left the fishery. ( 1 ( 2 (v) Any vessel that exceeds its assigned DML after any applicable adjustment under paragraph (c)(9)(iii) of this section will have its DML for the subsequent year reduced by 150 percent of the overage, unless another adjustment is determined by the International Review Panel, as mandated by the Agreement on the IDCP. (vi) A vessel that is covered by a valid vessel permit and that does not normally fish for tuna in the ETP but desires to participate in the fishery on a limited basis may apply for a per-trip DML from the Administrator, West Coast Region, at any time, allowing at least 60 days for processing. The request must state the expected number of trips involving sets on dolphins and the anticipated dates of the trip or trips. The request will be forwarded to the Secretariat of the IATTC for processing in accordance with Annex IV of the Agreement on the IDCP. A per-trip DML will be assigned if one is made available in accordance with the terms of Annex IV of the Agreement on the IDCP. If a vessel assigned a per-trip DML does not set on dolphins during that trip, the vessel will be considered to have lost its DML unless this was a result of force majeure or other extraordinary circumstances as determined by the International Review Panel. After two consecutive losses of a DML, a vessel will not be eligible to receive a DML for the next fishing year. (vii) Observers will make their records available to the vessel operator at any reasonable time, including after each set, in order for the operator to monitor the balance of the DML(s) remaining for use. (viii) Vessel and operator permit holders must not deploy a purse seine net on or encircle any school of dolphins containing individuals of a particular stock of dolphins for the remainder of the calendar year: (A) after the applicable per-stock per-year dolphin mortality limit for that stock of dolphins (or for that vessel, if so assigned) has been reached or exceeded; or (B) after the time and date provided in actual notification or notification in the Federal Register (ix) If individual dolphins belonging to a stock that is prohibited from being taken are not reasonably observable at the time the net skiff attached to the net is released from the vessel at the start of a set, the fact that individuals of that stock are subsequently taken will not be cause for enforcement action provided that all procedures required by the applicable regulations have been followed. (x) Vessel and operator permit holders must not intentionally deploy a purse seine net on or encircle dolphins intentionally: (A) after a set in which the vessel's DML, as adjusted, has been reached or exceeded; or (B) after the date and time provided in actual notification by letter, facsimile, radio, or electronic mail, or notice in the Federal Register (d) Purse seining by vessels without assigned DMLs. (e) Observers (i) Exemption from observer requirement. Federal Register WCR.HMS@noaa.gov, (ii) [Reserved] (2) Research and observation duties will be carried out in such a manner as to minimize interference with commercial fishing operations. Observers must be provided access to vessel personnel and to dolphin safety gear and equipment, electronic navigation equipment, radar displays, high powered binoculars, and electronic communication equipment. The navigator must provide true vessel locations by latitude and longitude, accurate to the nearest minute, upon request by the observer. Observers must be provided with adequate space on the bridge or pilothouse for clerical work, as well as space on deck adequate for carrying out observer duties. No vessel owner, master, operator, or crew member of a permitted vessel may impair, or in any way interfere with, the research or observations being carried out. Masters must allow observers to use vessel communication equipment necessary to report information concerning the take of marine mammals and other observer collected data upon request of the observer. (3) Any marine mammals killed during fishing operations that are accessible to crewmen and requested from the permit holder or master by the observer must be brought aboard the vessel and retained for biological processing, until released by the observer for return to the ocean. Whole marine mammals or marine mammal parts designated as biological specimens by the observer must be retained in cold storage aboard the vessel until retrieved by authorized personnel of NMFS or the IATTC when the vessel returns to port for unloading. (4) It is unlawful for any person to forcibly assault, impede, intimidate, interfere with, or to influence or attempt to influence an observer, or to harass (including sexual harassment) an observer by conduct that has the purpose or effect of unreasonably interfering with the observer's work performance, or that creates an intimidating, hostile, or offensive environment. In determining whether conduct constitutes harassment, the totality of the circumstances, including the nature of the conduct and the context in which it occurred, will be considered. The determination of the legality of a particular action will be made from the facts on a case-by-case basis. (i) Requirements for owners and operators of U.S. purse seine vessels for reporting and actions in response to observer safety are at § 300.29 of this title. (ii) [Reserved] (5)(i) All observers must be provided sleeping, toilet and eating accommodations at least equal to that provided to a full crew member. A mattress or futon on the floor or a cot is not acceptable in place of a regular bunk. Meal and other galley privileges must be the same for the observer as for other crew members. (ii) Female observers on a vessel with an all-male crew must be accommodated either in a single-person cabin or, if reasonable privacy can be ensured by installing a curtain or other temporary divider, in a two-person cabin shared with a licensed officer of the vessel. If the cabin assigned to a female observer does not have its own toilet and shower facilities that can be provided for the exclusive use of the observer, then a schedule for time-sharing common facilities must be established before the placement meeting and approved by NMFS or other approved observer program and must be followed during the entire trip. (iii) In the event there are one or more female crew members, the female observer must be provided a bunk in a cabin shared solely with female crew members, and provided toilet and shower facilities shared solely with these female crew members. (f) Importation, purchase, shipment, sale and transport. (ii) For purposes of this paragraph (f), and in applying the definition of an “intermediary nation,” an import occurs when the fish or fish product is released from a nation's Customs' custody and enters into the commerce of the nation. For other purposes, “import” is defined in § 216.3. (2) Imports requiring a Fisheries Certificate of Origin and an International Fisheries Trade Permit. see (i) Imports requiring a Fisheries Certificate of Origin, subject to yellowfin tuna embargo. www.usitc.gov. (A) Frozen: 0303.42.0020 Yellowfin tunas, whole, frozen 0303.42.0040 Yellowfin tunas, head-on, frozen, except whole 0303.42.0060 Yellowfin tunas, other, frozen, except whole, head-on, fillets, livers and roes 0304.87.0000 Tuna fish fillets, frozen, not elsewhere specified or indicated (NESOI) 0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing with their contents over 6.8 kg each (B) Airtight Containers: 1604.14.1010 Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers weighing with their contents not more than 6.8 kg each 1604.14.1099 Tunas and skipjack, in oil, in airtight containers, NESOI 1604.14.2291 Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2299 Tunas, NESOI and skipjack, not in oil, in other airtight containers not over 7 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.3091 Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers, weighing with their contents not more than 6.8 kg each 1604.14.3099 Other tunas and skipjack, not in oil, in airtight containers, NESOI (C) Loins: 1604.14.4000 Tunas and skipjacks, prepared or preserved, not in airtight containers, not in oil, in bulk or immediate containers with their contents over 6.8 kg each 1604.14.5000 Tunas and skipjack, prepared or preserved, not in airtight containers, NESOI (D) Other: 0511.91.0090 Fish, shellfish products unfit for human consumption 1604.20.1000 Fish pastes 1604.20.1500 Fish balls, cakes and puddings, in oil 1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI 1604.20.4000 Fish sticks, not cooked, nor in oil 1604.20.5010 Fish sticks, cooked and frozen 1604.20.5090 Fish sticks, NESOI 2309.10.0010 Dog or cat food, in airtight containers (ii) Imports requiring a Fisheries Certificate of Origin, not subject to yellowfin tuna embargo. www.usitc.gov. (A) Frozen: 0303.41.0000 Albacore or longfinned tunas, frozen, except fillets, livers and roes 0303.43.0000 Skipjack tunas or stripe-bellied bonito, frozen, except fillets, livers and roes 0303.44.0000 Bigeye tunas, frozen, except fillets, livers and roes 0303.45.0110 Atlantic Bluefin, frozen, except fillets, livers and roes 0303.45.0150 Pacific Bluefin, frozen, except fillets, livers and roes 0303.46.0000 Southern bluefin tunas, frozen, except fillets, livers and roes 0303.49.0200 Tunas, frozen, except fillets, livers and roes, NESOI 0304.87.0000 Tuna fish fillets, frozen, NESOI 0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing with their contents over 6.8 kg each, NESOI (B) Airtight Containers: 1604.14.1010 Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers weighing with their contents not more than 6.8 kg each 1604.14.1091 Tunas, albacore, in oil, in airtight containers, NESOI 1604.14.1099 Tunas and skipjack, in oil, in airtight containers, NESOI 1604.14.2251 Albacore tuna, not in oil, in foil/flexible airtight containers, weighing not over 6.8 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2259 Albacore tuna, not in oil, in airtight containers weighing not over 7 kg, NESOI, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2291 Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2299 Tunas, NESOI and skipjack, not in oil, in other airtight containers, not over 7 kg, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.3051 Tuna, albacore not in oil, in foil or other flexible airtight containers, weighing with contents not more than 6.8 kg each, NESOI 1604.14.3059 Tuna, albacore not in oil, in airtight containers, NESOI 1604.14.3091 Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers, weighing with their contents not more than 6.8 kg each 1604.14.3099 Other tunas and skipjack, not in oil, in airtight containers, NESOI (C) Loins: 1604.14.4000 Tunas and skipjacks, prepared or preserved, not in airtight containers, not in oil, in bulk or immediate containers with their contents over 6.8 kg each 1604.14.5000 Tunas and skipjack, prepared or preserved, not in airtight containers, NESOI (D) Other: 0511.91.0090 Fish, shellfish products unfit for human consumption 1604.20.1000 Fish pastes 1604.20.1500 Fish balls, cakes and puddings, in oil 1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI 1604.20.4000 Fish sticks, not cooked, nor in oil 1604.20.5010 Fish sticks, cooked and frozen 1604.20.5090 Fish sticks, NESOI 2309.10.0010 Dog or cat food, in airtight containers (iii) Exports from driftnet nations only, requiring a Fisheries Certificate of Origin and official certification. (A) Frozen: 0303.11.0000 Sockeye (red) salmon ( Oncorhynchus nerka 0303.12.0012 Chinook (King) salmon ( Oncorhynchus tschawytscha 0303.12.0022 Chum (dog) salmon ( Oncorhynchus keta 0303.12.0032 Pink (humpie) salmon ( Oncorhynchus gorbuscha 0303.12.0052 Coho (silver) salmon ( Oncorhynchus kisutch 0303.12.0062 Pacific salmon ( Oncorhynchus masou, Oncorhynchus rhodurus 0303.13.0000 Atlantic salmon ( Salmo salar Hucho hucho 0303.14.0000 Trout ( Salmo trutta; Oncorhynchus mykiss, clarki, aguabonita, gilae, apache, chrysogaster 0303.19.0100 Salmonidae, frozen, except fillets, livers and roes, NESOI 0303.57.0010 Swordfish steaks, frozen, except fillets 0303.57.0090 Swordfish, frozen, except steaks, fillets, livers and roes 0303.81.0010 Dogfish ( Squalus 0303.81.0090 Sharks, frozen, except dogfish, fillets, livers and roes 0303.89.0079 Fish, other, frozen, except fillets, livers and roes, NESOI 0304.81.5010 Atlantic Salmonidae ( Salmo salar 0304.81.5090 Salmonidae fillets, frozen, except Atlantic salmon, NESOI 0304.89.1090 Fish fillets, skinned, frozen blocks weighing over 4.5 kg each, to be minced, ground or cut into pieces of uniform weights and dimensions, NESOI 0304.91.1000 Swordfish, frozen, in bulk or in immediate containers weighing over 6.8 kg each 0304.91.9000 Swordfish, frozen, NESOI 0304.99.9191 Fish fillets, ocean, frozen, NESOI 0307.49.0010 Squid fillets, frozen 0307.49.0022 Squid, Loligo opalescens, 0307.49.0024 Squid, Loligo pealei, 0307.49.0029 Squid, Loligo, 0307.49.0050 Squid, other, NESOI (B) Canned: 1604.11.2020 Pink (humpie) salmon, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.2090 Salmon NESOI, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.4010 Chum (dog) salmon, not in oil, canned 1604.11.4020 Pink (humpie) salmon, not in oil, canned 1604.11.4030 Sockeye (red) salmon, not in oil, canned 1604.11.4040 Salmon, NESOI, not in oil, canned 1604.11.4050 Salmon, whole or in pieces, but not minced, NESOI 1604.19.2100 Fish, NESOI, not in oil, in airtight containers 1604.19.3100 Fish, NESOI, in oil, in airtight containers 1605.54.6020 Squid, Loligo, 1605.54.6030 Squid, except Loligo, (C) Other: 0305.39.6080 Fish fillets, dried, salted or in brine, but not smoked, NESOI 0305.41.0000 Pacific salmon ( Oncorhynchus Salmo salar Hucho hucho 0305.49.4041 Fish including fillets, smoked, NESOI 0305.59.0000 Fish, dried, whether or not salted but not smoked, NESOI 0305.69.4000 Salmon, salted but not dried or smoked; in brine 0305.69.5001 Fish in immediate containers weighing with their contents 6.8 kg or less each, salted but not dried or smoked; in brine, NESOI 0305.69.6001 Fish, salted but not dried or smoked; in brine, NESOI 0305.71.0000 Shark fins, dried, whether or not salted but not smoked 0305.49.0010 Squid, frozen, fillets 0307.49.0022 Squid, Loligo opalescens, 0307.49.0024 Squid, Loligo pealei, 0307.49.0029 Squid, Loligo, 0307.49.0050 Squid, other, frozen (except fillets), dried, salted or in brine, except Loligo squid 0307.49.0060 Cuttle fish ( Sepia officinalis, Rossia macrosoma, Sepiola (3) Disposition of Fisheries Certificates of Origin. https://www.fisheries.noaa.gov/national/marine-mammal-protection/noaa-form-370-fisheries-certificate-origin. (i) A properly completed FCO, and its attached certifications and statements as described in § 216.91(a), must accompany the required CBP entry documents that are filed at the time of, or in advance of, importation. (ii) FCOs and associated certifications and statements as described in § 216.91(a) must be provided electronically to CBP as indicated in paragraph (f)(2) of this section. (iii) FCOs that accompany imported shipments of tuna destined for further processing in the United States must be endorsed at each change in ownership and submitted to the Administrator, West Coast Region, by the last endorser when all required endorsements are completed. Such FCOs must be submitted as specified in § 216.93(d)(2). (iv) Importers and exporters are required to retain their records, including FCOs, import or export documents, invoices, and bills of lading for 2 years, and such records must be made available within 30 days of a request by the Secretary or the Administrator, West Coast Region. (4) Contents of Fisheries Certificate of Origin. (i) CBP entry identification; (ii) Date of entry; (iii) Exporter's full name and complete address; (iv) Importer's or consignee's full name and complete address; (v) Species description, product form, and HTS number; (vi) Total net weight of the shipment in kilograms; (vii) Ocean area where the fish were harvested (ETP, western Pacific Ocean, south Pacific Ocean, north Pacific Ocean, eastern Atlantic Ocean, western Atlantic Ocean, Caribbean Sea, Indian Ocean, or other); (viii) Type of fishing gear used to harvest the fish (purse seine, longline, baitboat, large-scale driftnet, gillnet, pole and line/hook and line, or other); (ix) Country under whose laws the harvesting vessel operated based upon the flag of the vessel or, if a certified charter vessel, the country that accepted responsibility for the vessel's fishing operations; (x) Dates on which the fishing trip began and ended; (xi) The name of the harvesting vessel; (xii) Dolphin-safe condition of the shipment, described by checking the appropriate statement on the form and attaching additional certifications as described in § 216.91(a) if required; (xiii) For shipments containing fish or fish products exported from, or harvested on the high seas by vessels of a nation known to use large-scale driftnets, as determined by the Secretary pursuant to paragraph (f)(7) of this section, the High Seas Driftnet Certification contained on the FCO must be dated and signed by a responsible government official of the large-scale driftnet nation, certifying that the fish or fish products were harvested by a method other than large-scale driftnet; and (xiv) Each importer, exporter, or processor who takes custody of the shipment must sign and date the form to certify that the form and attached documentation accurately describes the shipment of fish that they accompany. (5) Dolphin-safe label. et seq. (6) Scope of embargoes ETP yellowfin tuna embargo. (A) Harvested on or after March 3, 1999, the effective date of section 4 of the IDCPA, and harvested by, or exported from, a nation that the Assistant Administrator has determined has jurisdiction over purse seine vessels of greater than 400 st (362.8 mt) carrying capacity harvesting tuna in the ETP, unless the Assistant Administrator has made an affirmative finding required for importation for that nation under paragraph (f)(8) of this section; (B) Exported from an intermediary nation, as defined in Section 3 of the MMPA, and a ban is currently in force prohibiting the importation from that nation under paragraph (f)(9) of this section; or (C) Harvested before March 3, 1999, the effective date of Section 4 of the IDCPA, and would have been banned from importation under Section 101(a)(2) of the MMPA at the time of harvest. (ii) Driftnet embargo. (iii) Pelly certification. (iv) Coordination. (7) Large-scale driftnet nation: determination. Federal Register. Federal Register, (8) Affirmative finding procedure for nations harvesting yellowfin tuna using a purse seine in the ETP. Federal Register. (A) The harvesting nation participates in the IDCP and is either a member of the IATTC or has initiated (and within 6 months thereafter completed) all steps required of applicant nations, in accordance with article V, paragraph 3, of the Convention establishing the IATTC, to become a member of that organization; (B) The nation is meeting its obligations under the IDCP and its obligations of membership in the IATTC, including all financial obligations; (C)( 1 ( 2 i ( ii (D)( 1 ( 2 ( 3 i ( ii (ii) Documentary Evidence and Compliance with the IDCP Documentary Evidence. (B) Revocation. (iii) A harvesting nation may apply for an affirmative finding at any time by providing to the Assistant Administrator the information and authorizations required in paragraphs (f)(8)(i) and (f)(8)(ii) of this section, allowing at least 60 days from the submission of complete information to NMFS for processing. (iv) The Assistant Administrator will make or renew an affirmative finding for the period from April 1 through March 31 of the following year, or portion thereof, if the harvesting nation has provided all the information and authorizations required by paragraphs (f)(8)(i) and (f)(8)(ii) of this section, and has met the requirements of paragraphs (f)(8)(i) and (f)(8)(ii) of this section. (v) Reconsideration of finding. (9) Intermediary nation. (i) An “intermediary nation” is a nation that exports yellowfin tuna or yellowfin tuna products to the United States and that imports yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation into the United States pursuant to Section 101(a)(2)(B) of the MMPA. (ii) Shipments of yellowfin tuna that pass through any nation (e.g. on a 'through Bill of Lading') and are not entered for consumption in that nation are not considered to be imports to that nation and thus, would not cause that nation to be considered an intermediary nation under the MMPA. (iii) The Assistant Administrator will publish in the Federal Register (iv) Changing the status of intermediary nation determinations. Federal Register, (v) The Assistant Administrator will review decisions under this paragraph upon the request of an intermediary nation. Such requests must be accompanied by specific and detailed supporting information or documentation indicating that a review or reconsideration is warranted. For purposes of this paragraph, the term “certification and reasonable proof” means the submission to the Assistant Administrator by a responsible government official from the nation of a document reflecting the nation's customs records for the preceding 6 months, together with a certification attesting that the document is accurate. (10) Fish refused entry. (11) Disposition of fish refused entry into the United States. (12) Market Prohibitions. (A) Dolphin-safe under subpart H of this part; or (B) Harvested in compliance with the IDCP by vessels under the jurisdiction of a nation that is a member of the IATTC or has initiated, and within 6 months thereafter completes, all steps required by an applicant nation to become a member of the IATTC. (ii) It is unlawful for any exporter, transshipper, importer, processor, or wholesaler/distributor to possess, sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals unless the label or mark complies with the requirements of 16 U.S.C. 1385(d). (g) Penalties. (h) Taking and related acts of marine mammals in foreign commercial fishing operations not governed by the provisions related to tuna purse seine vessels in the eastern tropical Pacific Ocean Prohibitions. (ii) Accordingly, it is unlawful for any person to import, or attempt to import, into the United States for commercial purposes any fish or fish product if such fish or fish product: (A) Was caught or harvested in a fishery that does not have a valid comparability finding in effect at the time of import; or (B) Is not accompanied by a Certification of Admissibility where such Certification is required pursuant to paragraph (h)(9)(iv) of this section or by such other documentation as the Assistant Administrator may identify and announce in the Federal Register (iii) It is unlawful for any person, including exporters, transshippers, importers, processors, or wholesalers/distributors to possess, sell, purchase, offer for sale, re-export, transport, or ship in interstate or foreign commerce in the United States, any fish or fish product imported in violation of paragraph (h) of this section. (2) Exemptions. (A) For the purposes of paragraph (h) of this section, harvesting nation (B) [Reserved] (ii) The prohibitions of paragraph (h)(1) of this section shall not apply during the exemption period. (iii) Paragraph (h) of this section shall not apply to a commercial fishing operation subject to section 101(a)(2)(B) of the MMPA and its implementing regulations set out in the relevant provisions of paragraph (f) of this section which govern the incidental take of delphinids in course of commercial purse seine fishing operations for yellowfin tuna in the eastern tropical Pacific Ocean and restrictions on importation and sale of fish and fish products caught or harvested in that commercial fishing operation. Paragraph (h) of this section shall not apply with respect to large-scale driftnet fishing, which is governed by paragraph (f)(7) of this section and the restrictions it sets out on importation and sale of fish and fish products harvested by using a large-scale driftnet. (3) Procedures to identify foreign commercial fishing operations with incidental mortality and serious injury of marine mammals as exempt or export fisheries. (i) Shall periodically analyze imports of fish and fish products and identify commercial fishing operations that are the source of exports of such fish and fish products to the United States that have or may have incidental mortality or serious injury of marine mammals in the course of their commercial fishing operations. (A) For the purposes of paragraph (h) of this section, a commercial fishing operation (B) [Reserved] (ii) Shall notify, in consultation with the Secretary of State, each harvesting nation that has commercial fishing operations identified pursuant to paragraph (h)(3)(i) of this section and request that within 90 days of notification the harvesting nation submit reliable information about the commercial fishing operations identified, including as relevant the number of participants, number of vessels, gear type, target species, area of operation, fishing season, any information regarding the frequency of marine mammal incidental mortality and serious injury and any programs (including any relevant laws, decrees, regulations or measures) to assess marine mammal populations and to reduce incidental mortality and serious injury of marine mammals in those fisheries or prohibit the intentional killing or injury of marine mammals. (iii) Shall review each harvesting nation's submission, evaluate any information it contains (including descriptions of its regulatory programs) and, if necessary, request additional information. (iv) May consider other readily available and relevant information about such commercial fishing operations and the frequency of incidental mortality and serious injury of marine mammals, including: fishing vessel records; reports of on-board fishery observers; information from off-loading facilities, port-side officials, enforcement agents and officers, transshipment vessel workers and fish importers; government vessel registries; regional fisheries management organizations documents and statistical document programs; and appropriate certification programs. Other sources may include published literature and reports on fishing vessels with incidental mortality and serious injury of marine mammals from government agencies; foreign, state, and local governments; regional fishery management organizations; nongovernmental organizations; industry organizations; academic institutions; and citizens and citizen groups. (4) List of Foreign Fisheries. Federal Register (A) A proposed List of Foreign Fisheries by harvesting nation for notice and comment; and (B) A final List of Foreign Fisheries, effective upon publication in the Federal Register (ii) To the extent that information is available, the List of Foreign Fisheries shall: (A) Classify each commercial fishing operation that is the source of exports of fish and fish products to the United States based on the definitions for export fishery and exempt fishery set forth in § 216.3 and identified in the List of Foreign Fisheries by harvesting nation and other defining factors including geographic location of harvest, gear-type, target species or a combination thereof; (B) Include fishing gear type, target species, and number of vessels or other entities engaged in each commercial fishing operation; (C) List the marine mammals that interact with each commercial fishing operation and indicate the level of incidental mortality and serious injury of marine mammals in each commercial fishing operation; (D) Provide a description of the harvesting nation's programs to assess marine mammal stocks and estimate and reduce marine mammal incidental mortality and serious injury in its export fisheries; and (E) List the harvesting nations that prohibit, in the course of commercial fishing operations that are the source of exports to the United States, the intentional mortality or serious injury of marine mammals unless the intentional mortality or serious injury of a marine mammal is imminently necessary in self-defense or to save the life of a person in immediate danger. (5) Consultations with Harvesting Nations with Commercial Fishing Operations on the List of Foreign Fisheries. Federal Register, (ii) The Assistant Administrator, in consultation with the Secretary of State, may consult with harvesting nations for the purposes of providing notifications of deadlines under this section, ascertaining or reviewing the progress of the harvesting nation's development, adoption, implementation, or enforcement of its regulatory program governing the incidental mortality and serious injury of marine mammals in the course of commercial fishing operations for an export fishery, supplementing or clarifying information needed in conjunction with the List of Foreign Fisheries in paragraphs (h)(3) and (4) of this section, the progress report in paragraph (h)(10) of this section or an application for or reconsideration of a comparability finding in paragraphs (h)(6) and (8) of this section. (iii) The Assistant Administrator shall, in consultation with the Secretary of State and the United States Trade Representative, consult with any harvesting nations that failed to receive a comparability finding for one or more of commercial fishing operations or for which a comparability finding is terminated and encourage the harvesting nation to take corrective action and reapply for a comparability finding in accordance with paragraph (h)(9)(iii) of this section. (6) Procedure and conditions for a comparability finding Procedures to apply for a comparability finding. (ii) Procedures to issue a comparability finding. (iii) Conditions for a comparability finding. (A) For an exempt or export fishery, the harvesting nation: ( 1 ( 2 (B) For an export fishery, the harvesting nation maintains a regulatory program with respect to the fishery that is comparable in effectiveness to the U.S. regulatory program with respect to incidental mortality and serious injury of marine mammals in the course of commercial fishing operations, in particular by maintaining a regulatory program that includes, or effectively achieves comparable results as, the conditions in paragraph (h)(6)(iii)(C), (D), or (E) of this section as applicable (including for transboundary stocks). (C) Conditions for an export fishery operating under the jurisdiction of a harvesting nation within its EEZ (or the equivalent) or territorial sea. ( 1 ( 2 ( 3 ( i ( ii ( iii ( 4 ( 5 ( 6 ( i ( ii (D) Conditions for a harvesting nation's export fishery operating within the jurisdiction of another state. ( 1 ( i ( ii ( 2 ( i ( ii ( 3 (E) Conditions for a harvesting nation's export fishery operating on the high seas under the jurisdiction of the harvesting nation or another state. ( 1 ( 2 ( i ( ii (7) Additional considerations for comparability finding determinations. (i) U.S. implementation of its regulatory program for similar marine mammal stocks and similar fisheries ( e.g., (ii) The extent to which the harvesting nation has successfully implemented measures in the export fishery to reduce the incidental mortality and serious injury of marine mammals caused by the harvesting nation's export fisheries to levels below the bycatch limit; (iii) Whether the measures adopted by the harvesting nation for its export fishery have reduced or will likely reduce the cumulative incidental mortality and serious injury of each marine mammal stock below the bycatch limit, and the progress of the regulatory program toward achieving its objectives; (iv) Other relevant facts and circumstances, which may include the history and nature of interactions with marine mammals in this export fishery, whether the level of incidental mortality and serious injury resulting from the fishery or fisheries exceeds the bycatch limit for a marine mammal stock, the population size and trend of the marine mammal stock, and the population level impacts of the incidental mortality or serious injury of marine mammals in a harvesting nation's export fisheries and the conservation status of those marine mammal stocks where available; (v) The record of consultations under paragraph (h)(5) of this section with the harvesting nation, results of these consultations, and actions taken by the harvesting nation and under any applicable intergovernmental agreement or regional fishery management organization to reduce the incidental mortality and serious injury of marine mammals in its export fisheries; (vi) Information gathered during onsite inspection by U.S. government officials of a fishery's operations; (vii) For export fisheries operating on the high seas under an applicable intergovernmental agreement or regional fishery management organization to which the United States is a party, the harvesting nation's record of implementation of or compliance with measures adopted by that regional fishery management organization or intergovernmental agreement for data collection, incidental mortality and serious injury mitigation or the conservation and management of marine mammals; whether the harvesting nation is a party or cooperating non-party to such intergovernmental agreement or regional fishery management organization; the record of United States implementation of such measures; and whether the United States has imposed additional measures on its fleet not required by an intergovernmental agreement or regional fishery management organization; or (viii) For export fisheries operating on the high seas under an applicable intergovernmental agreement or regional fisheries management organization to which the United States is not a party, the harvesting nation's implementation of and compliance with measures, adopted by that regional fisheries management organization or intergovernmental agreement, and any additional measures implemented by the harvesting nation for data collection, incidental mortality and serious injury mitigation or the conservation and management of marine mammals and the extent to which such measures are comparable in effectiveness to the U.S. regulatory program for similar fisheries. (8) Comparability finding determinations Publication. Federal Register, (ii) Notification. Federal Register, (A) Issuing a comparability finding; (B) Denying a comparability finding with an explanation for the reasons for the denial of such comparability finding; and (C) Specify the fish and fish products that will be subject to import prohibitions under paragraphs (h)(1) and (9) of this section on account of a denial of a comparability finding and the effective date of such import prohibitions. (iii) Preliminary comparability finding consultations. ( 1 ( 2 (B) The Assistant Administrator shall take into account any information it receives from the harvesting nation and issue a final comparability finding determination, notifying the harvesting nation pursuant to paragraph (h)(8)(ii) of this section of its determination and, if a denial or termination, an explanation of the reasons for the denial or termination of the comparability finding. (C) A preliminary denial or termination of a comparability finding shall not result in import prohibitions pursuant to paragraphs (h)(1) and (9) of this section. (iv) Duration of a comparability finding. (v) Renewal of comparability finding. (vi) Procedures for a comparability finding for new foreign commercial fishing operations wishing to export to the United States. (B) Upon notification the Assistant Administrator shall issue a provisional comparability finding allowing such imports for a period not to exceed 12 months. (C) At least 120 days prior to the expiration of the provisional comparability finding the harvesting nation must submit to the Assistant Administrator the reliable information specified in paragraph (h)(3)(ii) of this section and the application and the applicable documentary evidence required pursuant to paragraph (h)(6)(i) of this section. (D) Prior to expiration of the provisional comparability finding, the Assistant Administrator shall review the application and information provided and classify the commercial fishing operation as either an exempt or export fishery in accordance with paragraphs (h)(3)(iii) through (iv) and (h)(4)(ii) of this section and determine whether to issue the harvesting nation a comparability finding for the fishery in accordance with paragraph (h)(6)(ii) through (iii) of this section. (E) If the harvesting nation submits the reliable information specified in paragraph (h)(3)(ii) of this section at least 180 days prior to expiration of the provisional comparability finding, the Assistant Administrator will review that information and classify the fishery as either an exempt or export fishery. (vii) Discretionary review of comparability findings. (B) After such review or reconsideration and consultation with the harvesting nation, the Assistant Administrator shall, if the Assistant Administrator determines that the basis for the comparability finding no longer applies, terminate a comparability finding. (C) The Assistant Administrator shall notify in writing the harvesting nation and publish in the Federal Register (9) Imposition of import prohibitions. Federal Register (ii) Duration of import restrictions and removal of import restrictions. (B) A harvesting nation with an export fishery with a comparability finding that expired, was denied or terminated may re-apply for a comparability finding at any time by submitting an application to the Assistant Administrator, along with documentary evidence demonstrating that the harvesting nation has met the conditions specified in paragraph (h)(6)(iii) of this section, including, as applicable, reasonable proof as to the effects on marine mammals of the commercial fishing technology in use in the fishery for the fish or fish products exported from such nation to the United States. (C) The Assistant Administrator shall make a determination whether to issue the harvesting nation that has re-applied for a comparability finding for the fishery within 90 days from the submission of complete information to the Assistant Administrator. The Assistant Administrator shall issue a comparability finding for the fishery for a specified period where the Assistant Administrator finds that the harvesting nation meets the applicable conditions in paragraph (h)(6)(iii) of this section, subject to the additional consideration for a comparability finding in paragraph (h)(7) of this section. (D) Upon issuance of a comparability finding to the harvesting nation with respect to the fishery and notification in writing to the harvesting nation, the Assistant Administrator, in cooperation with the Secretaries of Treasury and Homeland Security, shall publish in the Federal Register Federal Register (iii) Certification of admissibility. (B) The Assistant Administrator shall notify the harvesting nation of the fisheries and the fish and fish products to be accompanied by a certification of admissibility and provide the necessary documents and instruction. (C) The Assistant Administrator, in cooperation with the Secretaries of Treasury and Homeland Security, shall as part of the Federal Register Federal Register (D) For each shipment, the certification of admissibility must be properly completed and signed by a duly authorized official or agent of the harvesting nation and subject to validation by a responsible official(s) designated by the Assistant Administrator. The certification must also be signed by the importer of record and submitted in a format (electronic facsimile [fax], the Internet, etc.) specified by the Assistant Administrator. (iv) Intermediary nation. (B) No fish or fish products caught or harvested in a fishery subject to an import prohibition under paragraphs (h)(1) and (9) of this section, may be imported into the United States from any intermediary nation. (C) Within 30 days of publication of the Federal Register (D) Within 60 days from the date of notification, an intermediary nation notified pursuant to paragraph (h)(9)(iv)(C) of this section must certify to the Assistant Administrator that it: ( 1 ( 2 (E) The intermediary nation must provide documentary evidence to support its certification including information demonstrating that: ( 1 ( 2 (F) No later than 120 days after a notification pursuant to paragraph (h)(9)(iv)(C) of this section, the Assistant Administrator will review the documentary evidence provided by the intermediary nation under paragraphs (h)(9)(iv)(D) and (E) of this section and determine based on that information or other readily available information whether the intermediary nation imports, or offers to import into the United States, fish and fish products subject import prohibitions and, if so, whether the intermediary nation has procedures to reliably certify that exports of fish and fish products from the intermediary nation to the United States do not contain fish or fish products subject to import prohibitions under paragraphs (h)(1) and (9) of this section, and notify the intermediary nation of its determination. (G) If the Assistant Administrator determines that the intermediary nation does not have procedures to reliably certify that exports of fish and fish products from the intermediary nation to the United States do not contain fish or fish products caught or harvested in a fishery subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this section, the Assistant Administrator, in cooperation with the Secretaries of the Treasury and Homeland Security, will file with the Office of the Federal Register a notice announcing the fish and fish products exported from the intermediary nation to the United States that are of the same species as, or similar to, fish or fish products subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this section that may not be imported into the United States (H) The Assistant Administrator will review determinations under this paragraph upon the request of an intermediary nation. Such requests must be accompanied by specific and detailed supporting information or documentation indicating that a review or reconsideration is warranted. Based upon such information and other relevant information, the Assistant Administrator may determine that the intermediary nation should no longer be subject to an import prohibition under paragraph (h)(9)(iv)(G) of this section. If the Assistant Administrator makes such a determination, the Assistant Administrator, in cooperation with the Secretaries of the Treasury and Homeland Security, shall lift the import prohibition under this paragraph and publish notification of such action in the Federal Register (10) Progress report for harvesting nations with export fisheries. (A) Develop, adopt and implement its regulatory program; and (B) Meet the conditions in paragraph (h)(6)(iii) of this section, including with respect to reducing or maintaining incidental mortality and serious injury of marine mammals below the bycatch limit for its fisheries. (ii) The progress report should include the methods the harvesting nation is using to obtain information in support of a comparability finding and a certification by the harvesting nation of the accuracy and authenticity of the information contained in the progress report. (iii) The first progress report will be due two years prior to the end of exemption period and every four years thereafter on or before July 31. (iv) The Assistant Administrator may review the progress report to monitor progress made by a harvesting nation in developing its regulatory program or to reconsider a comparability finding in accordance with paragraph (h)(8)(vi) of this section. (11) International cooperation and assistance. (i) Provide appropriate assistance to harvesting nations identified by the Assistant Administrator under paragraph (h)(5) of this section with respect to the financial or technical means to develop and implement the requirements of this section; (ii) Undertake, where appropriate, cooperative research on marine mammal assessments for abundance, methods to estimate incidental mortality and serious injury and technologies and techniques to reduce marine mammal incidental mortality and serious injury in export fisheries; (iii) Encourage and facilitate, as appropriate, the voluntary transfer of appropriate technology on mutually agreed terms to assist harvesting nations in qualifying for a comparability finding under paragraph (h)(6) of this section; and (iv) Initiate, through the Secretary of State, negotiations for the development of bilateral or multinational agreements with harvesting nations to conserve marine mammals and reduce the incidental mortality and serious injury of marine mammals in the course of commercial fishing operations. (12) Consistency with international obligations. [69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005; 74 FR 1613, Jan. 13, 2009; 81 FR 36184, June 6, 2016; 81 FR 51132, Aug. 3, 2016; 81 FR 54413, Aug. 15, 2016; 83 FR 3625, Jan. 26, 2018; 84 FR 70043, Dec. 20, 2019; 85 FR 29669, May 18, 2020; 85 FR 49975, Aug. 17, 2020; 85 FR 58297, Sept. 18, 2020; 85 FR 69517, Nov. 3, 2020; 87 FR 17023, Mar. 25, 2022; 91 FR 41575, July 7, 2026] § 216.25 Exempted marine mammals and marine mammal products. (a) The provisions of the MMPA and these regulations shall not apply: (1) To any marine mammal taken before December 21, 1972 1 1 (2) To any marine mammal product if the marine mammal portion of such product consists solely of a marine mammal taken before such date. (b) The prohibitions contained in § 216.12(c) (3) and (4) shall not apply to marine mammals or marine mammal products imported into the United States before the date on which a notice is published in the Federal Register (c) Section 216.12(b) shall not apply to articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of such marine mammals or marine mammal products unlawful. [39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, 1994] § 216.26 Collection of certain marine mammal parts without prior authorization. Notwithstanding any other provision of this subpart: (a) Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from land within 1/4 ocean (b) Notwithstanding the provisions of subpart D, soft parts that are sloughed, excreted, or discharged naturally by a living marine mammal in the wild may be collected or imported for bona fide scientific research and enhancement, provided that collection does not involve the taking of a living marine mammal in the wild. (c) Any marine mammal part collected under paragraph (a) of this section or any marine mammal part collected and imported under paragraph (b) of this section must be registered and identified, and may be transferred or otherwise possessed, in accordance with § 216.22(c). In registering a marine mammal part collected or imported under paragraph (b) of this section, the person who collected or imported the part must also state the scientific research or enhancement purpose for which the part was collected or imported. (d) No person may purchase, sell or trade for commercial purposes any marine mammal part collected or imported under this section. (e) The export of parts collected without prior authorization under paragraph (b) of this section may occur if consistent with the provisions at § 216.37(d) under subpart D. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996] § 216.27 Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals. (a) Release requirements. (i) The marine mammal might adversely affect marine mammals in the wild; (ii) Release of the marine mammal to the wild will not likely be successful given the physical condition and behavior of the marine mammal; or (iii) More time is needed to determine whether the release of the marine mammal to the wild will likely be successful. Releasability must be reevaluated at intervals of no less than six months until 24 months from capture or import, at which time there will be a rebuttable presumption that release into the wild is not feasible. (2) The custodian of the rehabilitated marine mammal shall provide written notification prior to any release into the wild. (i) Notification shall be provided to: (A) The NMFS Regional Director at least 15 days in advance of releasing any beached or stranded marine mammal, unless advance notice is waived in writing by the Regional Director; or (B) The Office Director at least 30 days in advance of releasing any imported marine mammal. (ii) Notification shall include the following: (A) A description of the marine mammal, including its physical condition and estimated age; (B) The date and location of release; and (C) The method and duration of transport prior to release. (3) The Regional Director, or the Office Director as appropriate, may: (i) Require additional information prior to any release; (ii) Change the date or location of release, or the method or duration of transport prior to release; (iii) Impose additional conditions to improve the likelihood of success or to monitor the success of the release; or (iv) Require other disposition of the marine mammal. (4) All marine mammals must be released near wild populations of the same species, and stock if known, unless a waiver is granted by the Regional Director or the Office Director. (5) All marine mammals released must be tagged or marked in a manner acceptable to the Regional Director or the Office Director. The tag number or description of the marking must be reported to the Regional Director or Office Director following release. (b) Non-releasability and postponed determinations. (2) Upon receipt of a report under paragraph (b)(1) of this section, the Regional Director or Office Director, in their sole discretion, may: (i) Order the release of the marine mammal; (ii) Order continued rehabilitation for an additional 6 months; or (iii) Order other disposition as authorized. (3) No later than 30 days after a marine mammal is determined unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of this section, the person with authorized custody must: (i) Request authorization to retain or transfer custody of the marine mammal in accordance with paragraph (c) of this section, or; (ii) Humanely euthanize the marine mammal or arrange any other disposition of the marine mammal authorized by the Regional Director or Office Director. (4) Notwithstanding any of the provisions of this section, the Office Director may require use of a rehabilitated marine mammal for any activity authorized under subpart D in lieu of animals taken from the wild. (5) Any rehabilitated beached or stranded marine mammal placed on public display following a non-releasability determination under paragraph (a)(1) of this section and pending disposition under paragraph (c) of this section, or any marine mammal imported for medical treatment otherwise unavailable and placed on public display pending disposition after such medical treatment is concluded, must be held in captive maintenance consistent with all requirements for public display. (c) Disposition for a special exception purpose. (2) The Office Director will first consider requests from a person authorized to hold the marine mammal for rehabilitation. The Office Director may authorize such person to retain or transfer custody of the marine mammal for scientific research, enhancement, or public display purposes. (3) The Office Director may authorize retention or transfer of custody of the marine mammal only if: (i) Documentation has been submitted to the Office Director that the person retaining the subject animal or the person receiving custody of the subject animal by transfer, hereinafter referred to as the recipient, complies with public display requirements of 16 U.S.C. 1374(c)(2)(A) or, for purposes of scientific research and enhancement, holds an applicable permit, or an application for such a special exception permit under § 216.33 or a request for a major amendment under § 216.39 has been submitted to the Office Director and has been found complete; (ii) The recipient agrees to hold the marine mammal in conformance with all applicable requirements and standards; and (iii) The recipient acknowledges that the marine mammal is subject to seizure by the Office Director: (A) If, at any time pending issuance of the major amendment or permit, the Office Director determines that seizure is necessary in the interest of the health or welfare of the marine mammal; (B) If the major amendment or permit is denied; or (C) If the recipient is issued a notice of violation and assessment, or is subject to permit sanctions, in accordance with 15 CFR part 904. (4) There shall be no remuneration associated with any transfer, provided that, the transferee may reimburse the transferor for any and all costs associated with the rehabilitation and transport of the marine mammal. (5) Marine mammals undergoing rehabilitation or pending disposition under this section shall not be subject to public display, unless such activities are specifically authorized by the Regional Director or the Office Director, and conducted consistent with the requirements applicable to public display. Such marine mammals shall not be trained for performance or be included in any aspect of a program involving interaction with the public; and (6) Marine mammals undergoing rehabilitation shall not be subject to intrusive research, unless such activities are specifically authorized by the Office Director in consultation with the Marine Mammal Commission and its Committee of Scientific Advisors on Marine Mammals, and are conducted pursuant to a scientific research permit. (d) Reporting. In addition to the report required under § 216.22(b), the person authorized to hold marine mammals for rehabilitation must submit reports to the Regional Director or Office Director regarding release or other disposition. These reports must be provided in the form and frequency specified by the Regional Director or Office Director. [61 FR 21933, May 10, 1996] Subpart D—Special Exceptions § 216.30 [Reserved] § 216.31 Definitions. For the purpose of this subpart, the definitions set forth in 50 CFR part 217 shall apply to all threatened and endangered marine mammals, unless a more restrictive definition exists under the MMPA or part 216. [61 FR 21935, May 10, 1996] § 216.32 Scope. The regulations of this subpart apply to: (a) All marine mammals and marine mammal parts taken or born in captivity after December 20, 1972; and (b) All marine mammals and marine mammal parts that are listed as threatened or endangered under the ESA. [61 FR 21935, May 10, 1996] § 216.33 Permit application submission, review, and decision procedures. (a) Application submission. (b) Applications to export living marine mammals. (1) Be submitted through the Convention on International Trade in Endangered Fauna and Flora management authority of the foreign government or, if different, the appropriate agency or agencies of the foreign government that exercises oversight over marine mammals. (2) Include a certification from the foreign government that: (i) The information set forth in the application is accurate; (ii) The laws and regulations of the foreign governmentinvolved allow enforcement of the terms and conditions of the permit, and that the foreign government will enforce all terms and conditions; and (iii) The foreign government involved will afford comity to any permit amendment, modification, suspension or revocation decision. (c) Initial review. (2) During the initial review, the Office Director will determine: (i) Whether the application is complete. (ii) Whether the proposed activity is for purposes authorized under this subpart. (iii) If the proposed activity is for enhancement purposes, whether the species or stock identified in the application is in need of enhancement for its survival or recovery and whether the proposed activity will likely succeed in its objectives. (iv) Whether the activities proposed are to be conducted consistent with the permit restrictions and permit specific conditions as described in § 216.35 and § 216.36(a). (v) Whether sufficient information is included regarding the environmental impact of the proposed activity to enable the Office Director: (A) To make an initial determination under the National Environmental Policy Act (NEPA) as to whether the proposed activity is categorically excluded from preparation of further environmental documentation, or whether the preparation of an environmental assessment (EA) or environmental impact statement (EIS) is appropriate or necessary; and (B) To prepare an EA or EIS if an initial determination is made by the Office Director that the activity proposed is not categorically excluded from such requirements. (3) The Office Director may consult with the Marine Mammal Commission (Commission) and its Committee of Scientific Advisors on Marine Mammals (Committee) in making these initial, and any subsequent, determinations. (4) Incomplete applications will be returned with explanation. If the applicant fails to resubmit a complete application or correct the identified deficiencies within 60 days, the application will be deemed withdrawn. Applications that propose activities inconsistent with this subpart will be returned with explanation, and will not be considered further. (d) Notice of receipt and application review. Federal Register. (i) Summarize the application, including: (A) The purpose of the request; (B) The species and number of marine mammals; (C) The type and manner of special exception activity proposed; (D) The location(s) in which the marine mammals will be taken, from which they will be imported, or to which they will be exported; and (E) The requested period of the permit. (ii) List where the application is available for review. (iii) Invite interested parties to submit written comments concerning the application within 30 days of the date of the notice. (iv) Include a NEPA statement that an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an EA or EIS, that an EA was prepared resulting in a finding of no significant impact, or that a final EIS has been prepared and is available for review. (2) The Office Director will forward a copy of the complete application to the Commission for comment. If no comments are received within 45 days (or such longer time as the Office Director may establish) the Office Director will consider the Commission to have no objection to issuing a permit. (3) The Office Director may consult with any other person, institution, or agency concerning the application. (4) Within 30 days of publication of the notice of receipt in the Federal Register, (5) If the Office Director deems it advisable, the Office Director may hold a public hearing within 60 days of publication of the notice of receipt in the Federal Register. Federal Register (6) The Office Director may extend the period during which any interested party may submit written comments. Notice of the extension must be published in the Federal Register Federal Register. (7) If, after publishing a notice of receipt, the Office Director determines on the basis of new information that an EA or EIS must be prepared, the Office Director must deny the permit unless an EA is prepared with a finding of no significant impact. If a permit is denied under these circumstances the application may be resubmitted with information sufficient to prepare an EA or EIS, and will be processed as a new application. (e) Issuance or denial procedures. (2) The decision to issue or deny a permit will be based upon: (i) All relevant issuance criteria set forth at § 216.34; (ii) All purpose-specific issuance criteria as appropriate set forth at § 216.41, § 216.42, and § 216.43; (iii) All comments received or views solicited on the permit application; and (iv) Any other information or data that the Office Director deems relevant. (3) If the permit is issued, upon receipt, the holder must date and sign the permit, and return a copy of the original to the Office Director. The permit shall be effective upon the permit holder's signing of the permit. In signing the permit, the holder: (i) Agrees to abide by all terms and conditions set forth in the permit, and all restrictions and relevant regulations under this subpart; and (ii) Acknowledges that the authority to conduct certain activities specified in the permit is conditional and subject to authorization by the Office Director. (4) Notice of the decision of the Office Director shall be published in the Federal Register (i) Was applied for in good faith; (ii) If exercised, will not operate to the disadvantage of such endangered or threatened species; and (iii) Is consistent with the purposes and policy set forth in section 2 of the ESA. (5) If the permit is denied, the Office Director shall provide the applicant with an explanation for the denial. (6) Under the MMPA, the Office Director may issue a permit for scientific research before the end of the public comment period if delaying issuance could result in injury to a species, stock, or individual, or in loss of unique research opportunities. The Office Director also may waive the 30-day comment period required under the ESA in an emergency situation where the health or life of an endangered or threatened marine mammal is threatened and no reasonable alternative is available. If a permit is issued under these circumstances, notice of such issuance before the end of the comment period shall be published in the Federal Register (7) The applicant or any party opposed to a permit may seek judicial review of the terms and conditions of such permit or of a decision to deny such permit. Review may be obtained by filing a petition for review with the appropriate U.S. District Court as provided for by law. [61 FR 21935, May 10, 1996] § 216.34 Issuance criteria. (a) For the Office Director to issue any permit under this subpart, the applicant must demonstrate that: (1) The proposed activity is humane and does not present any unnecessary risks to the health and welfare of marine mammals; (2) The proposed activity is consistent with all restrictions set forth at § 216.35 and any purpose-specific restrictions as appropriate set forth at § 216.41, § 216.42, and § 216.43; (3) The proposed activity, if it involves endangered or threatened marine mammals, will be conducted consistent with the purposes and policies set forth in section 2 of the ESA; (4) The proposed activity by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock; (5) Whether the applicant's expertise, facilities, and resources are adequate to accomplish successfully the objectives and activities stated in the application; (6) If a live animal will be held captive or transported, the applicant's qualifications, facilities, and resources are adequate for the proper care and maintenance of the marine mammal; and (7) Any requested import or export will not likely result in the taking of marine mammals or marine mammal parts beyond those authorized by the permit. (b) The opinions or views of scientists or other persons or organizations knowledgeable of the marine mammals that are the subject of the application or of other matters germane to the application will be considered. [61 FR 21936, May 10, 1996] § 216.35 Permit restrictions. The following restrictions shall apply to all permits issued under this subpart: (a) The taking, importation, export, or other permitted activity involving marine mammals and marine mammal parts shall comply with the regulations of this subpart. (b) Special exception permits expire on the date specified in the permit, unless limited or extended in duration by the Director in accordance with §§ 216.36 and 216.39. (c) Except as provided for in § 216.41(c)(1)(v), marine mammals or marine mammal parts imported under the authority of a permit must be taken or imported in a humane manner, and in compliance with the Acts and any applicable foreign law. Importation of marine mammals and marine mammal parts is subject to the provisions of 50 CFR part 14. (d) The permit holder shall not take from the wild any marine mammal which at the time of taking is either unweaned or less than eight months old, or is a part of a mother-calf/pup pair, unless such take is specifically authorized in the conditions of the special exception permit. Additionally, the permit holder shall not import any marine mammal that is pregnant or lactating at the time of taking or import, or is unweaned or less than eight months old unless such import is specifically authorized in the conditions of the special exception permit. (e) Captive marine mammals shall not be released into the wild unless specifically authorized by the Office Director under a scientific research or enhancement permit. (f) The permit holder is responsible for all activities of any individual who is operating under the authority of the permit; (g) Individuals conducting activities authorized under the permit must possess qualifications commensurate with their duties and responsibilities, or must be under the direct supervision of a person with such qualifications; (h) Persons who require state or Federal licenses to conduct activities authorized under the permit must be duly licensed when undertaking such activities; (i) Special exception permits are not transferable or assignable to any other person, and a permit holder may not require any direct or indirect compensation from another person in return for requesting authorization for such person to conduct the taking, import, or export activities authorized under the subject permit; (j) The permit holder or designated agent shall possess a copy of the permit when engaged in a permitted activity, when the marine mammal is in transit incidental to such activity, and whenever marine mammals or marine mammal parts are in the possession of the permit holder or agent. A copy of the permit shall be affixed to any container, package, enclosure, or other means of containment, in which the marine mammals or marine mammal parts are placed for purposes of transit, supervision, or care. For marine mammals held captive and marine mammal parts in storage, a copy of the permit shall be kept on file in the holding or storage facility. [61 FR 21936, May 10, 1996, as amended at 89 FR 100402, Dec. 12, 2024] § 216.36 Permit conditions. (a) Specific conditions. (i) The number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected; (ii) The manner in which marine mammals may be taken according to type of take; (iii) The location(s) in which the marine mammals may be taken, from which they may be imported, or to which they may be exported, as applicable, and, for endangered or threatened marine mammal species to be imported or exported, the port of entry or export; (iv) The period during which the permit is valid. (2) [Reserved] (b) Other conditions. [61 FR 21937, May 10, 1996] § 216.37 Marine mammal parts. With respect to marine mammal parts acquired by take or import authorized under a permit issued under this subpart: (a) Marine mammal parts are transferrable if: (1) The person transferring the part receives no remuneration of any kind for the marine mammal part; (2) The person receiving the marine mammal part is: (i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any other governmental agency with conservation and management responsibilities, who receives the part in the course of their official duties; (ii) A holder of a special exception permit which authorizes the take, import, or other activity involving the possession of a marine mammal part of the same species as the subject part; or (iii) In the case of marine mammal parts from a species that is not depleted, endangered or threatened, a person who is authorized under section 112(c) of the MMPA and subpart C of this part to take or import marine mammals or marine mammal parts; (iv) Any other person specifically authorized by the Regional Director, consistent with the requirements of paragraphs (a)(1) and (a)(3) through (6) of this section. (3) The marine mammal part is transferred for the purpose of scientific research, maintenance in a properly curated, professionally accredited scientific collection, or education, provided that, for transfers for educational purposes, the recipient is a museum, educational institution or equivalent that will ensure that the part is available to the public as part of an educational program; (4) A unique number assigned by the permit holder is marked on or affixed to the marine mammal part or container; (5) The person receiving the marine mammal part agrees that, as a condition of receipt, subsequent transfers may only occur subject to the provisions of paragraph (a) of this section; and (6) Within 30 days after the transfer, the person transferring the marine mammal part notifies the Regional Director of the transfer, including a description of the part, the person to whom the part was transferred, the purpose of the transfer, certification that the recipient has agreed to comply with the requirements of paragraph (a) of this section for subsequent transfers, and, if applicable, the recipient's permit number. (b) Marine mammal parts may be loaned to another person for a purpose described in paragraph (a)(3) of this section and without the agreement and notification required under paragraphs (a)(5) and (6) of this section, if: (1) A record of the loan is maintained; and (2) The loan is for not more than one year. Loans for a period greater than 12 months, including loan extensions or renewals, require notification of the Regional Director under paragraph (a)(6). (c) Unless other disposition is specified in the permit, a holder of a special exception permit may retain marine mammal parts not destroyed or otherwise disposed of during or after a scientific research or enhancement activity, if such marine mammal parts are: (1) Maintained as part of a properly curated, professionally accredited collection; or (2) Made available for purposes of scientific research or enhancement at the request of the Office Director. (d) Marine mammal parts may be exported and subsequently reimported by a permit holder or subsequent authorized recipient, for the purpose of scientific research, maintenance in a properly curated, professionally accredited scientific collection, or education, provided that: (1) The permit holder or other person receives no remuneration for the marine mammal part; (2) A unique number assigned by the permit holder is marked on or affixed to the marine mammal specimen or container; (3) The marine mammal part is exported or reimported in compliance with all applicable domestic and foreign laws; (4) If exported or reimported for educational purposes, the recipient is a museum, educational institution, or equivalent that will ensure that the part is available to the public as part of an educational program; and (5) Special reports are submitted within 30 days after both export and reimport as required by the Office Director under § 216.38. [61 FR 21937, May 10, 1996] § 216.38 Reporting. All permit holders must submit annual, final, and special reports in accordance with the requirements established in the permit, and any reporting format established by the Office Director. [61 FR 21937, May 10, 1996] § 216.39 Permit amendments. (a) General. (1) A major amendment (i) The number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected; (ii) The manner in which these marine mammals may be taken, imported, exported, or otherwise affected, if the proposed change may result in an increased level of take or risk of adverse impact; (iii) The location(s) in which the marine mammals may be taken, from which they may be imported, and to which they may be exported, as applicable; and (iv) The duration of the permit, if the proposed extension would extend the duration of the permit more than 12 months beyond that established in the original permit. (2) A minor amendment (b) Amendment requests and proposals. (i) The purpose and nature of the amendment; (ii) Information, not previously submitted as part of the permit application or subsequent reports, necessary to determine whether the amendment satisfies all issuance criteria set forth at § 216.34, and, as appropriate, § 216.41, § 216.42, and § 216.43. (iii) Any additional information required by the Office Director for purposes of reviewing the proposed amendment. (2) If an amendment is proposed by the Office Director, the permit holder will be notified of the proposed amendment, together with an explanation. (c) Review of proposed amendments Major amendments. (2) Minor amendments. (ii) If the minor amendment extends the duration of the permit 12 months or less from that established in the original permit, notice of the minor amendment will be published in the Federal Register (iii) A minor amendment will be effective upon a final decision by the Office Director. [61 FR 21937, May 10, 1996] § 216.40 Penalties and permit sanctions. (a) Any person who violates any provision of this subpart or permit issued thereunder is subject to civil and criminal penalties, permit sanctions and forfeiture as authorized under the Acts, and 15 CFR part 904. (b) All special exception permits are subject to suspension, revocation, modification and denial in accordance with the provisions of subpart D of 15 CFR part 904. [61 FR 21938, May 10, 1996] § 216.41 Permits for scientific research and enhancement. In addition to the requirements under §§ 216.33 through 216.38, permits for scientific research and enhancement are governed by the following requirements: (a) Applicant. (2) For any scientific research involving captive maintenance, the application must include supporting documentation from the person responsible for the facility or other temporary enclosure. (b) Issuance Criteria. (1) The proposed activity furthers a bona fide scientific or enhancement purpose; (2) If the lethal taking of marine mammals is proposed: (i) Non-lethal methods for conducting the research are not feasible; and (ii) For depleted, endangered, or threatened species, the results will directly benefit that species or stock, or will fulfill a critically important research need. (3) Any permanent removal of a marine mammal from the wild is consistent with any applicable quota established by the Office Director. (4) The proposed research will not likely have significant adverse effects on any other component of the marine ecosystem of which the affected species or stock is a part. (5) For species or stocks designated or proposed to be designated as depleted, or listed or proposed to be listed as endangered or threatened: (i) The proposed research cannot be accomplished using a species or stock that is not designated or proposed to be designated as depleted, or listed or proposed to be listed as threatened or endangered; (ii) The proposed research, by itself or in combination with other activities will not likely have a long-term direct or indirect adverse impact on the species or stock; (iii) The proposed research will either: (A) Contribute to fulfilling a research need or objective identified in a species recovery or conservation plan, or if there is no conservation or recovery plan in place, a research need or objective identified by the Office Director in stock assessments established under section 117 of the MMPA; (B) Contribute significantly to understanding the basic biology or ecology of the species or stock, or to identifying, evaluating, or resolving conservation problems for the species or stock; or (C) Contribute significantly to fulfilling a critically important research need. (6) For proposed enhancement activities: (i) Only living marine mammals and marine mammal parts necessary for enhancement of the survival, recovery, or propagation of the affected species or stock may be taken, imported, exported, or otherwise affected under the authority of an enhancement permit. Marine mammal parts would include in this regard clinical specimens or other biological samples required for the conduct of breeding programs or the diagnosis or treatment of disease. (ii) The activity will likely contribute significantly to maintaining or increasing distribution or abundance, enhancing the health or welfare of the species or stock, or ensuring the survival or recovery of the affected species or stock in the wild. (iii) The activity is consistent with: (A) An approved conservation plan developed under section 115(b) of the MMPA or recovery plan developed under section 4(f) of the ESA for the species or stock; or (B) If there is no conservation or recovery plan, with the Office Director's evaluation of the actions required to enhance the survival or recovery of the species or stock in light of the factors that would be addressed in a conservation or recovery plan. (iv) An enhancement permit may authorize the captive maintenance of a marine mammal from a threatened, endangered, or depleted species or stock only if the Office Director determines that: (A) The proposed captive maintenance will likely contribute directly to the survival or recovery of the species or stock by maintaining a viable gene pool, increasing productivity, providing necessary biological information, or establishing animal reserves required to support directly these objectives; and (B) The expected benefit to the species or stock outweighs the expected benefits of alternatives that do not require removal of marine mammals from the wild. (v) The Office Director may authorize the public display of marine mammals held under the authority of an enhancement permit only if: (A) The public display is incidental to the authorized captive maintenance; (B) The public display will not interfere with the attainment of the survival or recovery objectives; (C) The marine mammals will be held consistent with all requirements and standards that are applicable to marine mammals held under the authority of the Acts and the Animal Welfare Act, unless the Office Director determines that an exception is necessary to implement an essential enhancement activity; and (D) The marine mammals will be excluded from any interactive program and will not be trained for performance. (vi) The Office Director may authorize non-intrusive scientific research to be conducted while a marine mammal is held under the authority of an enhancement permit, only if such scientific research: (A) Is incidental to the permitted enhancement activities; and (B) Will not interfere with the attainment of the survival or recovery objectives. (c) Restrictions. (i) Research activities must be conducted in the manner authorized in the permit. (ii) Research results shall be published or otherwise made available to the scientific community in a reasonable period of time. (iii) Research activities must be conducted under the direct supervision of the principal investigator or a co-investigator identified in the permit. (iv) Personnel involved in research activities shall be reasonable in number and limited to: (A) Individuals who perform a function directly supportive of and necessary to the permitted research activity; and (B) Support personnel included for the purpose of training or as backup personnel for persons described in paragraph (c)(1)(iv)(A). (v) Any marine mammal part imported under the authority of a scientific research permit must not have been obtained as the result of a lethal taking that would be inconsistent with the Acts, unless authorized by the Office Director. (vi) Marine mammals held under a permit for scientific research shall not be placed on public display, included in an interactive program or activity, or trained for performance unless such activities: (A) Are necessary to address scientific research objectives and have been specifically authorized by the Office Director under the scientific research permit; and (B) Are conducted incidental to and do not in any way interfere with the permitted scientific research; and (C) Are conducted in a manner consistent with provisions applicable to public display, unless exceptions are specifically authorized by the Office Director. (vii) Any activity conducted incidental to the authorized scientific research activity must not involve any taking of marine mammals beyond what is necessary to conduct the research (i.e., educational and commercial photography). (2) Any marine mammal or progeny held in captive maintenance under an enhancement permit shall be returned to its natural habitat as soon as feasible, consistent with the terms of the enhancement permit and the objectives of an approved conservation or recovery plan. In accordance with section 10(j) of the ESA, the Office Director may authorize the release of any population of an endangered or threatened species outside the current range of such species if the Office Director determines that such release will further the conservation of such species. [61 FR 21938, May 10, 1996] § 216.42 Photography. [Reserved] § 216.43 Public display. [Reserved] § 216.44 Applicability/transition. (a) General. (b) Scientific research. [61 FR 21939, May 10, 1996] § 216.45 General Authorization for Level B harassment for scientific research. (a) General Authorization. Provided, (i) They submit a letter of intent in accordance with the requirements of paragraph (b) of this section, receive confirmation that the General Authorization applies in accordance with paragraph (c) of this section, and comply with the terms and conditions of paragraph (d) of this section; or (ii) If such marine mammals are listed as endangered or threatened under the ESA, they have been issued a permit under Section 10(a)(1)(A) of the ESA and implementing regulations at 50 CFR parts 217-227, particularly at § 222.23 through § 222.28, to take marine mammals in the wild for the purpose of scientific research, the taking authorized under the permit involves such Level B harassment of marine mammals or marine mammal stocks, and they comply with the terms and conditions of that permit. (2) Except as provided under paragraph (a)(1)(ii) of this section, no taking, including harassment, of marine mammals listed as threatened or endangered under the ESA is authorized under the General Authorization. Marine mammals listed as endangered or threatened under the ESA may be taken for purposes of scientific research only after issuance of a permit for such activities pursuant to the ESA. (3) The following types of research activities will likely qualify for inclusion under the General Authorization: Photo-identification studies, behavioral observations, and vessel and aerial population surveys (except aerial surveys over pinniped rookeries at altitudes of less than 1,000 ft). (b) Letter of intent. (1) The letter of intent must be submitted by the principal investigator (who shall be deemed the applicant). For purposes of this section, the principal investigator is the individual who is responsible for the overall research project, or the institution, governmental entity, or corporation responsible for supervision of the principal investigator. (2) The letter of intent must include the following information: (i) The name, address, telephone number, qualifications and experience of the applicant and any co-investigator(s) to be conducting the proposed research, and a curriculum vitae for each, including a list of publications by each such investigator relevant to the objectives, methodology, or other aspects of the proposed research; (ii) The species or stocks of marine mammals (common and scientific names) that are the subject of the scientific research and any other species or stock of marine mammals that may be harassed during the conduct of the research; (iii) The geographic location(s) in which the research is to be conducted, e.g., geographic name or lat./long.; (iv) The period of time over which the research project or program will be conducted ( i.e., (v) The purpose of the research, including a description of how the proposed research qualifies as bona fide research as defined in § 216.3; and (vi) The methods to be used to conduct the research. (3) The letter of intent must be signed, dated, and certified by the applicant as follows: In accordance with section 104(c)(3)(C) of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq. (c) Confirmation that the General Authorization applies or notification of permit requirement. (i) Confirming that the General Authorization applies to the proposed scientific research as described in the letter of intent; (ii) Notifying the applicant that all or part of the research described in the letter of intent is likely to result in a taking of a marine mammal in the wild involving other than Level B harassment and, as a result, cannot be conducted under the General Authorization, and that a scientific research permit is required to conduct all or part of the subject research; or (iii) Notifying the applicant that the letter of intent fails to provide sufficient information and providing a description of the deficiencies, or notifying the applicant that the proposed research as described in the letter of intent is not bona fide research as defined in § 216.3. (2) A copy of each letter of intent and letter confirming that the General Authorization applies or notifying the applicant that it does not apply will be forwarded to the Marine Mammal Commission. (3) Periodically, NMFS will publish a summary document in the Federal Register (d) Terms and conditions. (1) Activities are limited to those conducted for the purposes, by the means, in the locations, and during the periods of time described in the letter of intent and acknowledged as authorized under the General Authorization in the confirmation letter sent pursuant to paragraph (c) of this section; (2) Annual reports of activities conducted under the General Authorization must be submitted to the Chief, Permits Division (address listed in paragraph (b) of this section) within 90 days of completion of the last field season(s) during the calendar year or, if the research is not conducted during a defined field season, no later than 90 days after the anniversary date of the letter of confirmation issued under paragraph (c) of this section. Annual reports must include: (i) A summary of research activities conducted; (ii) Identification of the species and number of each species taken by Level B harassment; (iii) An evaluation of the progress made in meeting the objectives of the research as described in the letter of intent; and (iv) Any incidental scientific, educational, or commercial uses of photographs, videotape, and film obtained as a result of or incidental to the research and if so, names of all photographers. (3) Authorization to conduct research under the General Authorization is for the period(s) of time identified in the letter of confirmation issued under paragraph (c) of this section, unless limited or extended by the Director, or modified, suspended, or revoked in accordance with paragraph (e) of this section; (4) Activities conducted under the General Authorization may only be conducted under the on-site supervision of the principal investigator or co-investigator(s) named in the letter of intent. All personnel involved in the conduct of activities under the General Authorization must perform a function directly supportive of and necessary for the research being conducted, or be one of a reasonable number of support personnel included for the purpose of training or as back-up personnel; (5) The principal investigator must notify the appropriate Regional Director, NMFS, (Regional Director) in writing at least 2 weeks before initiation of on-site activities. The Regional Director shall consider this information in efforts to coordinate field research activities to minimize adverse impacts on marine mammals in the wild. The principal investigator must cooperate with coordination efforts by the Regional Director in this regard; (6) If research activities result in a taking which exceeds Level B harassment, the applicant shall: (i) Report the taking within 12 hours to the Director, Office of Protected Resources, or his designee as set forth in the letter authorizing research; and (ii) Temporarily discontinue for 72 hours all field research activities that resulted in the taking. During this time period, the applicant shall consult with NMFS as to the circumstances surrounding the taking and any precautions necessary to prevent future taking, and may agree to amend the research protocol, as deemed necessary by NMFS. (7) NMFS may review scientific research conducted pursuant to the General Authorization. If requested by NMFS, the applicant must cooperate with any such review and shall: (i) Allow any employee of NOAA or any other person designated by the Director, Office of Protected Resources to observe research activities; and (ii) Provide any documents or other information relating to the scientific research; (8) Any photographs, videotape, or film obtained during the conduct of research under the General Authorization must be identified by a statement that refers to the General Authorization or ESA permit number, and includes the file number provided by NMFS in the confirmation letter, the name of the photographer, and the date the image was taken. This statement must accompany the image(s) in all subsequent uses or sales. The annual report must note incidental scientific, educational, or commercial uses of the images, and if there are any such uses, the names of all photographers; and (9) Persons conducting scientific research under authority of the General Authorization may not transfer or assign any authority granted thereunder to any other person. (e) Suspension, revocation, or modification. (i) The letter of intent included false information or statements of a material nature; (ii) The research does not constitute bona fide scientific research; (iii) Research activities result in takings of marine mammals other than by Level B harassment; (iv) Research activities differ from those described in the letter of intent submitted by the applicant and letter of confirmation issued by NMFS; or (v) The applicant violates any term or condition set forth in this section. (2) Any suspension, revocation, or modification is subject to the requirements of 15 CFR part 904. [59 FR 50376, Oct. 3, 1994, as amended at 89 FR 100402, Dec. 12, 2024] § 216.46 U.S. citizens on foreign flag vessels operating under the International Dolphin Conservation Program. The MMPA's provisions do not apply to a citizen of the United States who incidentally takes any marine mammal during fishing operations in the ETP which are outside the U.S. exclusive economic zone (as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)), while employed on a fishing vessel of a harvesting nation that is participating in, and in compliance with, the IDCP. [65 FR 56, Jan. 3, 2000] § 216.47 Access to marine mammal tissue, analyses, and data. (a) Applications for the National Marine Mammal Tissue Bank samples (NMMTB). (i) A clear and concise statement of the proposed use of the banked tissue specimen. The applicant must demonstrate that the proposed use of the banked tissue is consistent with the goals of the NMMTB and the MMHSRP. (A) The goals of the MMHSRP are to facilitate the collection and dissemination of reference data on marine mammals and health trends of marine mammal populations in the wild; to correlate the health of marine mammals and marine mammal populations in the wild with available data on physical, chemical, and biological environmental parameters; and to coordinate effective responses to unusual mortality events. (B) The goal of the NMMTB is to maintain quality controlled marine mammal tissues that will permit retrospective analyses to determine environmental trends of contaminants and other analytes of interest and that will provide the highest quality samples for analyses using new and innovative techniques. (ii) A copy of the applicant's scientific research permit. The applicant must demonstrate that the proposed use of the banked tissue is authorized by the permit; (iii) Name of principal investigator, official title, and affiliated research or academic organization; (iv) Specific tissue sample and quantity desired; (v) Research facility where analyses will be conducted. The applicant must demonstrate that the research facility will follow the Analytical Quality Assurance (AQA) program, which was designed to ensure the accuracy, precision, level of detection, and intercompatibility of data resulting from chemical analyses of marine mammal tissues. The AQA consists of annual interlaboratory comparisons and the development of control materials and standard reference materials for marine mammal tissues; (vi) Verification that funding is available to conduct the research; (vii) Estimated date for completion of research, and schedule/date of subsequent reports; (viii) Agreement that all research findings based on use of the banked tissue will be reported to the NMMTB, MMHSRP Program Manager and the contributor; and the sequences of tissue specimen samples that are used/released for genetic analyses (DNA sequencing) will be archived in the National Center for biotechnology Information's GenBank. Sequence accessions in GenBank should document the source, citing a NIST field number that indentifies the animal; and (ix) Agreement that credit and acknowledgment will be given to U.S. Fish and Wildlife Service (USFWS), US Geologic Service (USGS), National Institute of Standards and Technology (NIST), the Minerals Management Service (MMS), NMFS, the NMMTB, and the collector for use of banked tissues. (2) The applicant shall insert the following acknowledgment in all publications, abstracts, or presentations based on research using the banked tissue: The specimens used in this study were collected by [the contributor] and provided by the National Marine Mammal Tissue Bank, which is maintained in the National Biomonitoring Specimen Bank at NIST and which is operated under the direction of NMFS with the collaboration of MMS, USGS, USFWS, and NIST through the Marine Mammal Health and Stranding Response Program [and the Alaska Marine Mammal Tissue Archival Project if the samples are from Alaska]. (3) Upon submission of a complete application, the MMHSRP Program Manager will send the request and attached study plan to the following entities which will function as the review committee: (i) Appropriate Federal agency (NMFS or USFWS) marine mammal management office for that particular species; and (ii) Representatives of the NMMTB Collaborating Agencies (NMFS, USFS, USGS Biological Resources Division, and NIST) If no member of the review committee is an expert in the field that is related to the proposed research activity, any member may request an outside review of the proposal, which may be outside of NMFS or USFWS but within the Federal Government. (4) The MMHSRP Program Manager will send the request and attached study plan to any contributor(s) of the tissue specimen sample. The contributor(s) of the sample may submit comments on the proposed research activity to the Director, Office of Protected Resources within 30 days of the date that the request was sent to the contributor(s). (5) The USFWS Representative of the NMMTB Collaborating Agencies will be chair of review committees for requests involving species managed by the DOI. The MMHSRP Program Manager will be chair of all other review committees. (6) Each committee chair will provide recommendations on the request and an evaluation of the study plan to the Director, Office of Protected Resources, NMFS. (7) The Director, Office of Protected Resources, NMFS, will make the final decision on release of the samples based on the advice provided by the review committee, comments received from any contributor(s) of the sample within the time provided in paragraph (a)(4) of this section, and determination that the proposed use of the banked tissue specimen is consistent with the goals of the MMHSRP and the NMMTB. The Director will send a written decision to the applicant and send copies to all review committee members. If the samples are released, the response will indicate whether the samples have been homogenized and, if not, the homogenization schedule. (8) The applicant will bear all shipping and homogenization costs related to use of any specimens from the NMMTB. (9) The applicant will dispose of the tissue specimen sample consistent with the provisions of the applicant's scientific research permit after the research is completed, unless the requester submits another request and receives approval pursuant to this section. The request must be submitted within three months after the original project has been completed. (b) [Reserved] [69 FR 41979, July 13, 2004] §§ 216.48-216.49 [Reserved] Subpart E—Designated Ports § 216.50 Importation at designated ports. (a) Any marine mammal or marine mammal product which is subject to the jurisdiction of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce and is intended for importation into the United States shall be subject to the provisions of 50 CFR part 14. (b) For the information of importers, designated ports of entry for the United States are: New York, N.Y. Miami, Fla. Chicago, Ill. San Francisco, Calif. Los Angeles, Calif. New Orleans, La. Seattle, Wash. Honolulu, Hi. (c) Additionally, marine mammals or marine mammal products which are entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the Virgin Islands and which are not to be forwarded or transhipped within the United States may be imported through the following ports: Alaska—Juneau, Anchorage, Fairbanks Hawaii—Honolulu Puerto Rico—San Juan Guam—Honolulu, Hi. American Samoa—Honolulu, Hi. Virgin Islands—San Juan, P.R. (d) Importers are advised to see 50 CFR part 14 for importation requirements and information. [39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994] Subpart F—Pribilof Islands, Taking for Subsistence Purposes § 216.71 Allowable take of fur seals. Pribilovians may take fur seals on the Pribilof Islands if such taking is (a) For subsistence uses, and (b) Not accomplished in a wasteful manner. [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.72 Restrictions on subsistence use of fur seals. (a) The harvests of seals on St. Paul and St. George Islands shall be treated independently for the purposes of this section. Any suspension, termination, or extension of the harvest is applicable only to the island for which it is issued. (b)-(c)[Reserved] (d) St. George Island. (1) Pribilovians may only harvest sub-adult male fur seals 124.5 centimeters or less in length from June 23 through August 8 annually on St. George Island. (2) Pribilovians may harvest sub-adult male fur seals at the hauling grounds shown in Figure 1 to part 216. No hauling ground may be harvested more than twice per week. (3) [Reserved] (4) The scheduling of the sub-adult male harvest is at the discretion of the Pribilovians, but must be such as to minimize stress to the harvested seals. The Pribilovians must give adequate advance notice of their harvest schedules to the NMFS representatives to allow for necessary monitoring activities. No fur seal may be taken except by experienced sealers using the traditional harvesting methods, including stunning followed immediately by exsanguination. The harvesting method shall include organized drives of sub-adult male fur seals to killing fields, unless the NMFS representatives determine, in consultation with the Pribilovians conducting the harvest, that alternative methods will not result in increased disturbance to the rookery or the increased accidental take of female seals. (5) [Reserved] (6) Pribilovians may only harvest male young of the year from September 16 through November 30 annually on St. George Island. Pribilovians may harvest up to 150 male fur seal young of the year annually. (7) No more than 50 male young of the year may be harvested from each of the following regions where fur seals congregate: East region includes the breeding areas known as East Reef and East Cliffs rookeries and the associated non-breeding hauling grounds; South region includes the breeding areas known as Zapadni and South rookeries and the associated non-breeding hauling grounds; and North region includes the breeding areas known as North and Staraya Artil rookeries and associated non-breeding hauling grounds, as shown in Figure 1 to part 216. No area may be harvested more than twice per week and must be in accordance with paragraph (d)(10) of this section. (8) The scheduling of the young of the year harvest is at the discretion of the Pribilovians, but must be such as to minimize stress to the harvested and un-harvested fur seals and minimize the take of female fur seals. The Pribilovians must give adequate advance notice of their harvest schedules to the NMFS representatives to allow for necessary monitoring activities. No fur seal may be taken except by sealers using the harvesting methods implemented to reduce disturbance, injury, and accidental mortality of female fur seals. Pribilovians may use, but are not limited to, organized drives of young of the year fur seals from congregating areas to inland killing fields. Methods of harvest must include identification of male young of the year, followed by stunning and immediate exsanguination, unless the NMFS representatives, in consultation with the Pribilovians conducting the harvest, determine that alternative methods will not result in increased stress to harvested and un-harvested fur seals, increased disturbance or injury to resting fur seals, or the accidental mortality of female seals. (9) [Reserved] (10) No young of the year fur seals may be taken from any designated breeding area or its associated hauling ground(s) where the most recent NMFS analysis projects that pup production has greater than a 5 percent probability of falling below a level capable of sustaining a harvest in 10 years. (11) No more than 120 days after the final subsistence harvest each calendar year, NMFS representatives and St. George Island community members must review the implementation of the harvest and consider best harvest practices and determine if implementation can be improved to better meet the subsistence needs of the St. George Island community or reduce negative effects on fur seals. (e) St. Paul Island. (1) Juvenile male fur seals may be killed with firearms from January 1 through May 31 annually, or may be killed using alternative hunting methods developed through the St. Paul Island Co-management Council if those methods are consistent with § 216.71 and result in substantially similar effects. A firearm is any weapon, such as a pistol or rifle, capable of firing a missile using an explosive charge as a propellant. (2) Juvenile male fur seals may be harvested without the use of firearms from June 23 through December 31 annually. Authorized harvest may be by established harvest methods of herding and stunning followed immediately by exsanguination, or by alternative harvest methods developed through the St. Paul Island Co-management Council if those methods are consistent with § 216.71 and result in substantially similar effects. (3) Pribilovians are authorized each year up to 20 mortalities of female fur seals associated with the subsistence seasons. Any female fur seal mortalities will be included in the total number of fur seals authorized per year for subsistence uses (2,000). (f) Subsistence use suspension provisions. (i) He or she determines that subsistence use is being conducted in a wasteful manner; or (ii) With regard to St. George Island, two female fur seals have been killed during the subsistence seasons on St. George Island. (2) A suspension based on a determination under paragraph (f)(1)(i) of this section may be lifted by the Assistant Administrator if he or she finds that the conditions that led to the determination that subsistence use was being conducted in a wasteful manner have been remedied. (3) A suspension based on a determination under paragraph (f)(1)(ii) of this section may be lifted by the Assistant Administrator if he or she finds that the conditions that led to the killing of two female fur seals on St. George Island have been remedied and additional or improved methods to detect female fur seals during the subsistence seasons are being implemented. (g) Subsistence use termination provisions. (1) For St. Paul Island: (i) For the hunting of juvenile male fur seals with firearms, at the end of the day on May 31 or when 2,000 fur seals have been killed, whichever comes first; (ii) For the harvest of juvenile male fur seals without firearms, at the end of the day on December 31 or when 2,000 fur seals have been killed, whichever comes first; or (iii) When 20 female fur seals have been killed during the subsistence seasons. (2) For St. George Island: (i) For the sub-adult male harvest, at the end of the day on August 8 or when 500 sub-adult male seals have been harvested, whichever comes first; (ii) For the male young of the year harvest, at the end of the day on November 30 or earlier when either of the following occurs first: 150 male young of the year fur seals have been harvested or a total of 500 male sub-adult and male young of the year fur seals have been harvested; or (iii) When three female fur seals have been killed during the subsistence seasons. [51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996, as amended at 79 FR 65337, Nov. 4, 2014; 84 FR 52382, Oct. 2, 2019; 85 FR 15948, Mar. 20, 2020] § 216.73 Disposition of fur seal parts. Except for transfers to other Alaskan Natives for barter or sharing for personal or family consumption, no part of a fur seal taken for subsistence uses may be sold or otherwise transferred to any person unless it is a nonedible byproduct which: (a) Has been transformed into an article of handicraft, or (b) Is being sent by an Alaskan Native directly, or through a registered agent, to a tannery registered under 50 CFR 216.23(c) for the purpose of processing, and will be returned directly to the Alaskan Native for conversion into an article of handicraft, or (c) Is being sold or transferred to an Alaskan Native, or to an agent registered under 50 CFR 216.23(c) for resale or transfer to an Alaskan Native, who will convert the seal part into a handicraft. [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.74 Cooperation between fur seal subsistence users, tribal and Federal officials. Federal scientists and Pribilovians cooperatively manage the subsistence use of northern fur seals under section 119 of the Marine Mammal Protection Act (16 U.S.C. 1388). The federally recognized tribes on the Pribilof Islands have signed agreements describing a shared interest in the conservation and management of fur seals and the designation of co-management councils that meet and address the purposes of the co-management agreements for representatives from NMFS, St. George and St. Paul tribal governments. NMFS representatives are responsible for compiling information related to sources of human-caused mortality and serious injury of marine mammals. The Pribilovians are responsible for reporting their subsistence needs and actual level of subsistence take. This information is used to update stock assessment reports and make determinations under § 216.72. Pribilovians who take fur seals for subsistence uses collaborate with NMFS representatives and the respective Tribal representatives to consider best subsistence use practices under co-management and to facilitate scientific research. [84 FR 52383, Oct. 2, 2019, as amnded at 85 FR 15948, Mar. 20, 2020] Subpart G—Pribilof Islands Administration § 216.81 Visits to fur seal rookeries. From June 1 to October 15 of each year, no person, except those authorized by a representative of the National Marine Fisheries Service, or accompanied by an authorized employee of the National Marine Fisheries Service, shall approach any fur seal rookery or hauling grounds nor pass beyond any posted sign forbidding passage. [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.82 Dogs prohibited. (a) In order to prevent molestation of fur seal herds, the landing of any dogs at Pribilof Islands is prohibited. (b) The NMFS Alaska Regional Administrator may authorize the landing of independently certified and trained rodent detection dogs on an island in the Pribilof Islands, subject to the following: (1) A Pribilof Island landowner must submit a request for authorization to land a rodent detection dog on a Pribilof Island in writing to the NMFS Alaska Regional Administrator and must include the following information: (i) Independent certification by an accredited canine scent detection association, company, or organization that the dog has been trained for rodent detection; (ii) Certification that the dog will be under the constant voice, electronic, or leash control of a professional dog handler, or otherwise confined, while on the Pribilof Island; (iii) Proof that the dog has undergone any quarantine period required by the State of Alaska; (iv) Current immunization and health certifications required by the State of Alaska and NMFS Alaska Regional Administrator; (v) The number of dogs expected to be used; (vi) The professional dog handler's written plan for collecting and incinerating dog feces; (vii) The expected duration and location of rodent searches on the Pribilof Island; and (viii) Any other information requested by the Alaska Regional Administrator. (2) After receipt of a complete request, within 10 days, the NMFS Alaska Regional Administrator may authorize the landing of one or more independently certified and trained rodent detection dogs and impose any additional conditions on their use on the specified Pribilof Island. (3) No independently certified and trained rodent detection dog authorized by the NMFS Alaska Regional Administrator may be on the specified Pribilof Island for more than 180 total days from landing on that Island. [91 FR 41570, July 7, 2026] § 216.83 Importation of birds or mammals. No mammals or birds, except household cats, canaries and parakeets, shall be imported to the Pribilof Islands without the permission of an authorized representative of the National Marine Fisheries Service. [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.84 [Reserved] § 216.85 Walrus and Otter Islands. By Executive Order 1044, dated February 27, 1909, Walrus and Otter Islands were set aside as bird reservations. All persons are prohibited to land on these islands except those authorized by the appropriate representative of the National Marine Fisheries Service. [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.86 Local regulations. Local regulations will be published from time to time and will be brought to the attention of local residents and persons assigned to duty on the Islands by posting in public places and brought to the attention of tourists by personal notice. [41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.87 Wildlife research. (a) Wildlife research, other than research on North Pacific fur seals, including specimen collection, may be permitted on the Pribilof Islands subject to the following conditions: (1) Any person or agency, seeking to conduct such research shall first obtain any Federal or State of Alaska permit required for the type of research involved. (2) Any person seeking to conduct such research shall obtain prior approval of the Director, Pribilof Islands Program, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, 1700 Westlake Avenue North, Seattle, WA 98109, by filing with the Director an application which shall include: (i) Copies of the required Federal and State of Alaska permits; and (ii) A resume of the intended research program. (3) All approved research shall be subject to all regulations and administrative procedures in effect on the Pribilof Islands, and such research shall not commence until approval from the Director is received. (4) Any approved research program shall be subject to such terms and conditions as the Director, Pribilof Islands Program deems appropriate. (5) Permission to utilize the Pribilof Islands to conduct an approved research program may be revoked by the Director, Pribilof Islands Program at any time for noncompliance with any terms and conditions, or for violations of any regulation or administrative procedure in effect on the Pribilof Islands. [43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996] Subpart H—Dolphin Safe Tuna Labeling Authority: 16 U.S.C. 1385. § 216.90 Purposes. This subpart governs the requirements for using the official mark described in § 216.95 or an alternative mark that refers to dolphins, porpoises, or marine mammals, to label tuna or tuna products offered for sale in or exported from the United States using the term dolphin-safe or suggesting the tuna were harvested in a manner not injurious to dolphins. [69 FR 55307, Sept. 13, 2004] § 216.91 Dolphin-safe labeling standards. (a) It is a violation of Section 5 of the Federal Trade Commission Act (15 U.S.C. 45) for any producer, importer, exporter, wholesaler/distributor, or seller of any tuna products that are exported from or offered for sale in the United States to include on the label of those products the term “dolphin-safe” or any other term or symbol that claims or suggests that the tuna contained in the products were harvested using a method of fishing that is not harmful to dolphins if the products contain tuna harvested: (1) ETP large purse seine vessel. (i) The documentation requirements for dolphin-safe tuna under §§ 216.92 and 216.93 are met; (ii) No dolphins were killed or seriously injured during the sets in which the tuna were caught; and (iii) None of the tuna were caught on a trip using a purse seine net intentionally deployed on or to encircle dolphins, provided that this paragraph (a)(1)(iii) will not apply if the Assistant Administrator publishes a notification in the Federal Register (2) Driftnet. (3) Other fisheries. (i) For tuna caught in a purse seine fishery outside the ETP by a vessel on a fishing trip that began before July 13, 2013, a written statement executed by the Captain of the vessel certifying that no purse seine net was intentionally deployed on or used to encircle dolphins during the particular trip on which the tuna was harvested. (ii) For tuna caught by a vessel on a fishing trip that began on or after July 13, 2013, and before May 21, 2016, a written statement executed by the Captain of the vessel certifying: (A) For a purse seine vessel outside the ETP, that no purse seine net was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets in which the tuna were caught; (B) For a vessel other than one described in paragraph (a)(3)(ii)(A) of this section, that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. (iii) For tuna caught by a vessel on a fishing trip that began on or after May 21, 2016, a written statement executed by the Captain of the vessel certifying that: (A) No purse seine net or other fishing gear was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and (B) The Captain of the vessel has completed the NMFS Tuna Tracking and Verification Program dolphin-safe captain's training course. The NMFS Tuna Tracking and Verification Program dolphin-safe captain's training course is available on the website of the NMFS Tuna Tracking and Verification Program at https://www.fisheries.noaa.gov/dolphin-safe. (iv) For tuna caught in a fishery where the Assistant Administrator has determined that observers participating in a national or international observer program are qualified and authorized to issue observer statements for purposes of the dolphin-safe labeling program, and where such an observer is on board the vessel, a written statement executed by the observer, or by an authorized representative of a nation participating in the observer program based on information from the observer. Any determination by the Assistant Administrator shall be announced in a notice published in the Federal Register. https://www.fisheries.noaa.gov/dolphin-safe (A) That no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and, (B) In purse seine fisheries, that no purse seine net was intentionally deployed on or used to encircle dolphins during the trip on which the tuna were caught. (v) For tuna caught in a fishery in which the Assistant Administrator has determined that either a regular and significant association between dolphins and tuna (similar to the association between dolphins and tuna in the ETP) or a regular and significant mortality or serious injury of dolphins is occurring, a written statement, executed by the Captain of the vessel and an observer participating in a national or international program acceptable to the Assistant Administrator, unless the Assistant Administrator determines an observer statement is unnecessary. Determinations under this paragraph (a)(3)(v) will also be publicized on the website of the NMFS Tuna Tracking and Verification Program ( https://www.fisheries.noaa.gov/dolphin-safe (A) No fishing gear was intentionally deployed on or used to encircle dolphins during the trip on which the tuna were caught; (B) No dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and (C) Any relevant requirements of paragraph (a)(4) of this section were complied with during the trip on which the tuna were caught. (4) Other fisheries—segregation. (5) Other fisheries—chain of custody recordkeeping. (i) For tuna designated dolphin-safe that was harvested on a fishing trip that began on or after May 21, 2016, in addition to any other applicable requirements: (A) The importer of record or U.S. processor of tuna or tuna products, as applicable, maintains information on the complete chain of custody, including storage facilities, transshippers, processors, re-processors, and wholesalers/distributors to enable dolphin-safe tuna to be distinguished from non-dolphin-safe tuna from the time it is caught to the time it is ready for retail sale; (B) The importer of record or the U.S. processor, as appropriate, ensures that information is readily available to NMFS upon request to allow it to trace any non-dolphin-safe tuna loaded onto the vessel back to one or more storage wells or other storage locations for a particular fishing trip and to show that such non-dolphin-safe tuna was kept physically separate from dolphin-safe tuna through unloading. (ii) For tuna designated dolphin-safe that was harvested in a fishery about which the Assistant Administrator made a determination under paragraph (a)(3)(v) of this section, and harvested on a fishing trip that begins on or after 60 days after the date of the Federal Register (A) The catch documentation is correct; (B) The tuna or tuna products meet the dolphin-safe labeling standards under this section; and (C) The chain of custody information is correct. (iii) The information referred to in paragraphs (a)(5)(i) and (ii) of this section is maintained at the place of business of the importer of record or the U.S. processor, as applicable, for a period of 2 years from the date of the import or receipt, and be made available to NMFS for inspection upon request. (b) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in this section in a campaign or effort to mislead or deceive consumers about the level of protection afforded dolphins under the IDCP. (c) A tuna product that is labeled with the official mark, described in § 216.95, may not be labeled with any other label or mark that refers to dolphins, porpoises, or marine mammals. [81 FR 15448, Mar. 23, 2016, as amended at 81 FR 15449, Mar. 23, 2016; 83 FR 3626, Jan. 26, 2018] § 216.92 Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels. (a) U.S. vessels. (1) Tuna Tracking Forms containing a complete record of all the fishing activities on the trip, certified by the vessel Captain and the observer, are submitted to the Administrator, Southwest Region, at the end of the fishing trip during which the tuna was harvested; (2) The tuna is delivered for processing to a U.S. tuna processor in a plant located in one of the 50 states, Puerto Rico, or American Samoa that is in compliance with the tuna tracking and verification requirements of § 216.93; and (3) The tuna or tuna products meet the dolphin-safe labeling standards under § 216.91. (b) Imported tuna. (2) Tuna or tuna products, other than yellowfin tuna, harvested in the ETP by purse seine vessels of greater than 400 st (362.8 mt) carrying capacity and presented for import into the United States may be labeled dolphin-safe only if: (i) The tuna was harvested by a U.S. vessel fishing in compliance with the requirements of the IDCP and applicable U.S. law, or by a vessel belonging to a nation that is a Party to the Agreement on the IDCP or has applied to become a Party and is adhering to all the requirements of the Agreement on the IDCP Tuna Tracking and Verification Plan; (ii) The tuna or tuna products are accompanied as described in § 216.24(f)(3) by a properly completed FCO; and (iii) The tuna or tuna products are accompanied as described in § 216.24(f)(3) by valid documentation signed by a representative of the appropriate IDCP member nation, containing the harvesting vessel names and tuna tracking form numbers represented in the shipment, and certifying that: (A) There was an IDCP approved observer on board the vessel(s) during the entire trip(s); and (B) The tuna contained in the shipment were caught according to the dolphin-safe labeling standards of § 216.91. [69 FR 55307, Sept. 13, 2004, as amended at 74 FR 1617, Jan. 13, 2009] § 216.93 Tracking and verification program. The Administrator, Southwest Region, has established a national tracking and verification program to accurately document the dolphin-safe condition of tuna, under the standards set forth in §§ 216.91 and 216.92. The tracking program includes procedures and reports for use when importing tuna into the United States and during U.S. fishing, processing, and marketing in the United States and abroad. Verification of tracking system operations is attained through the establishment of audit and document review requirements. The tracking program is consistent with the international tuna tracking and verification program adopted by the Parties to the Agreement on the IDCP. (a) Tuna tracking forms. (b) Dolphin-Safe Certification. (c) Tracking fishing operations. ETP large purse seine vessel. (i) During fishing trips, any part of which included fishing in the ETP, by purse seine vessels greater than 400 st (362.8 mt) carrying capacity, tuna caught in sets designated as dolphin-safe by the vessel observer must be stored separately from tuna caught in non-dolphin-safe sets from the time of capture through unloading. Vessel personnel will decide into which wells tuna will be loaded. The observer will initially designate whether each set is dolphin-safe or not, based on his/her observation of the set. The observer will initially identify a vessel fish well as dolphin-safe if the first tuna loaded into the well during a trip was captured in a set in which no dolphin died or was seriously injured. The observer will initially identify a vessel fish well as non-dolphin-safe if the first tuna loaded into the well during a trip was captured in a set in which a dolphin died or was seriously injured. Any tuna loaded into a well previously designated non-dolphin-safe is considered non-dolphin-safe tuna. The observer will change the designation of a dolphin-safe well to non-dolphin-safe if any tuna are loaded into the well that were captured in a set in which a dolphin died or was seriously injured. (ii) The captain, managing owner, or vessel agent of a U.S. purse seine vessel greater than 400 st (362.8 mt) returning to port from a trip, any part of which included fishing in the ETP, must provide at least 48 hours' notice of the vessel's intended place of landing, arrival time, and schedule of unloading to the Administrator, Southwest Region. (iii) If the trip terminates when the vessel enters port to unload part or all of its catch, new TTFs will be assigned to the new trip, and any information concerning tuna retained on the vessel will be recorded as the first entry on the TTFs for the new trip. If the trip is not terminated following a partial unloading, the vessel will retain the original TTFs and submit a copy of those TTFs to the Administrator, Southwest Region, within 5 working days. In either case, the species and amount unloaded will be noted on the respective originals. (iv) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identification of the dolphin-safe or non-dolphin-safe designation of the tuna as it left the fishing vessel. (v) The handling of TTFs and the tracking and verification of tuna caught in the Convention Area by a U.S. purse seine vessel greater than 400 st (362.8 mt) carrying capacity shall be conducted consistent with the international tuna tracking and verification program adopted by the Parties to the Agreement on the IDCP. (2) Purse seine vessel other than ETP large purse seine vessel. (i) Tuna caught in sets designated as dolphin-safe must be stored separately from tuna caught in non-dolphin-safe sets from the time of capture through unloading. Tuna caught in sets where a dolphin died or was seriously injured must be stored in a well designated as non-dolphin-safe by the captain or, where applicable, by a qualified and authorized observer under § 216.91. Any tuna loaded into a well previously designated non-dolphin-safe is considered non-dolphin-safe tuna. The captain or, where applicable, a qualified and authorized observer under § 216.91, will change the designation of a dolphin-safe well to non-dolphin-safe if any tuna are loaded into the well that were captured in a set in which a dolphin died or was seriously injured. If a purse seine vessel has only one well used to store tuna, dolphin-safe tuna must be kept physically separate from non-dolphin-safe tuna by using netting or other material. If a purse seine vessel has more than one well used to store tuna, all tuna inside a well shall be considered non-dolphin-safe, if at any time non-dolphin-safe tuna is loaded into the well, regardless of the use of netting or other material inside the well. (ii) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identification of the dolphin-safe or non-dolphin-safe designation of the tuna as it left the fishing vessel. (3) Other vessels. (i) Tuna caught in sets or other gear deployments designated as dolphin-safe must be stored separately from tuna caught in non-dolphin-safe sets or other gear deployments from the time of capture through unloading. Dolphin-safe tuna must be kept physically separate from non-dolphin-safe tuna by using netting, other material, or separate storage areas. The captain or, where applicable, a qualified and authorized observer under § 216.91, must designate the storage areas for dolphin-safe and non-dolphin-safe tuna. (ii) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identification of the dolphin-safe or non-dolphin-safe designation of the tuna as it left the fishing vessel. (d) Tracking cannery operations. (2) Tuna processors must submit a report to the Administrator, Southwest Region, of all tuna received at their processing facilities in each calendar month whether or not the tuna is actually canned or stored during that month. Monthly cannery receipt reports must be submitted electronically or by mail before the last day of the month following the month being reported. Monthly reports must contain the following information: (i) Domestic receipts: (ii) Import receipts: (3) Tuna processors must report on a monthly basis the amounts of ETP-caught tuna that were immediately utilized upon receipt or removed from cold storage. This report may be submitted in conjunction with the monthly report required in paragraph (d)(2) of this section. This report must contain: (i) The date of removal from cold storage or disposition; (ii) Storage container or lot identifier number(s) and dolphin-safe or non-dolphin-safe designation of each container or lot; and (iii) Details of the disposition of fish (for example, canning, sale, rejection, etc.). (4) During canning activities, non-dolphin-safe tuna may not be mixed in any manner or at any time during processing with any dolphin-safe tuna or tuna products and may not share the same storage containers, cookers, conveyers, tables, or other canning and labeling machinery. (e) Tracking processor operations other than cannery operations. (f) Tracking imports. (g) Verification requirements. Record maintenance. (2) Record submission. (3) Audits and spot checks. (h) Confidentiality of proprietary information. [78 FR 41002, July 9, 2013, as amended at 81 FR 51133, Aug. 3, 2016] § 216.94 False statements or endorsements. Any person who knowingly and willfully makes a false statement or false endorsement required by § 216.92 is liable for a civil penalty not to exceed $100,000, that may be assessed in an action brought in any appropriate District Court of the United States on behalf of the Secretary. [61 FR 27794, June 3, 1996. Redesignated at 69 FR 55307, Sept. 13, 2004] § 216.95 Official mark for “Dolphin-safe” tuna products. (a) This is the “official mark” (see figure 1) designated by the United States Department of Commerce that may be used to label tuna products that meet the “dolphin-safe” standards set forth in the Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and implementing regulations at §§ 216.91 through 216.94: (b) Location and size of the official mark. https://www.fisheries.noaa.gov/national/marine-mammal-protection/dolphin-safe-official-mark. [65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004, as amended at 83 FR 3626, Jan. 26, 2018] Subpart I—General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities Source: 61 FR 15887, Apr. 10, 1996, unless otherwise noted. § 216.101 Purpose. The regulations in this subpart implement section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographic region. § 216.102 Scope. The taking of small numbers of marine mammals under section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service: (a) Finds, based on the best scientific evidence available, that the total taking by the specified activity during the specified time period will have a negligible impact on species or stock of marine mammal(s) and will not have an unmitigable adverse impact on the availability of those species or stocks of marine mammals intended for subsistence uses; (b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an incidental harassment authorization issued under § 216.107, setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species or stock of marine mammal and its habitat and on the availability of the species or stock of marine mammal for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and (c) Prescribes either regulations or requirements and conditions contained within an incidental harassment authorization, as appropriate, pertaining to the monitoring and reporting of such taking. The specific regulations governing certain specified activities are contained in subsequent subparts of this part. § 216.103 Definitions. In addition to definitions contained in the MMPA, and in § 216.3, and unless the context otherwise requires, in subsequent subparts to this part: Arctic waters Citizens of the United States U.S. citizens Incidental harassment, incidental taking incidental, but not intentional, taking Negligible impact Small numbers Specified activity Specified geographical region Unmitigable adverse impact (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. § 216.104 Submission of requests. (a) In order for the National Marine Fisheries Service to consider authorizing the taking by U.S. citizens of small numbers of marine mammals incidental to a specified activity (other than commercial fishing), or to make a finding that an incidental take is unlikely to occur, a written request must be submitted to the Assistant Administrator. All requests must include the following information for their activity: (1) A detailed description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals; (2) The date(s) and duration of such activity and the specific geographical region where it will occur; (3) The species and numbers of marine mammals likely to be found within the activity area; (4) A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks of marine mammals likely to be affected by such activities; (5) The type of incidental taking authorization that is being requested (i.e., takes by harassment only; takes by harassment, injury and/or death) and the method of incidental taking; (6) By age, sex, and reproductive condition (if possible), the number of marine mammals (by species) that may be taken by each type of taking identified in paragraph (a)(5) of this section, and the number of times such takings by each type of taking are likely to occur; (7) The anticipated impact of the activity upon the species or stock of marine mammal; (8) The anticipated impact of the activity on the availability of the species or stocks of marine mammals for subsistence uses; (9) The anticipated impact of the activity upon the habitat of the marine mammal populations, and the likelihood of restoration of the affected habitat; (10) The anticipated impact of the loss or modification of the habitat on the marine mammal populations involved; (11) The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; (12) Where the proposed activity would take place in or near a traditional Arctic subsistence hunting area and/or may affect the availability of a species or stock of marine mammal for Arctic subsistence uses, the applicant must submit either a plan of cooperation or information that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses. A plan must include the following: (i) A statement that the applicant has notified and provided the affected subsistence community with a draft plan of cooperation; (ii) A schedule for meeting with the affected subsistence communities to discuss proposed activities and to resolve potential conflicts regarding any aspects of either the operation or the plan of cooperation; (iii) A description of what measures the applicant has taken and/or will take to ensure that proposed activities will not interfere with subsistence whaling or sealing; and (iv) What plans the applicant has to continue to meet with the affected communities, both prior to and while conducting the activity, to resolve conflicts and to notify the communities of any changes in the operation; (13) The suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity. Monitoring plans should include a description of the survey techniques that would be used to determine the movement and activity of marine mammals near the activity site(s) including migration and other habitat uses, such as feeding. Guidelines for developing a site-specific monitoring plan may be obtained by writing to the Director, Office of Protected Resources; and (14) Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking and evaluating its effects. (b)(1) The Assistant Administrator shall determine the adequacy and completeness of a request and, if determined to be adequate and complete, will begin the public review process by publishing in the Federal Register (i) A proposed incidental harassment authorization; or (ii) A notice of receipt of a request for the implementation or reimplementation of regulations governing the incidental taking. (2) Through notice in the Federal Register, Federal Register. (3) Applications that are determined to be incomplete or inappropriate for the type of taking requested, will be returned to the applicant with an explanation of why the application is being returned. (c) The Assistant Administrator shall evaluate each request to determine, based upon the best available scientific evidence, whether the taking by the specified activity within the specified geographic region will have a negligible impact on the species or stock and, where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. If the Assistant Administrator finds that the mitigating measures would render the impact of the specified activity negligible when it would not otherwise satisfy that requirement, the Assistant Administrator may make a finding of negligible impact subject to such mitigating measures being successfully implemented. Any preliminary findings of “negligible impact” and “no unmitigable adverse impact” shall be proposed for public comment along with either the proposed incidental harassment authorization or the proposed regulations for the specific activity. (d) If, subsequent to the public review period, the Assistant Administrator finds that the taking by the specified activity would have more than a negligible impact on the species or stock of marine mammal or would have an unmitigable adverse impact on the availability of such species or stock for subsistence uses, the Assistant Administrator shall publish in the Federal Register § 216.105 Specific regulations. (a) For all petitions for regulations under this paragraph, applicants must provide the information requested in § 216.104(a) on their activity as a whole, which includes, but is not necessarily limited to, an assessment of total impacts by all persons conducting the activity. (b) For allowed activities that may result in incidental takings of small numbers of marine mammals by harassment, serious injury, death or a combination thereof, specific regulations shall be established for each allowed activity that set forth: (1) Permissible methods of taking; (2) Means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting, including requirements for the independent peer-review of proposed monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses. (c) Regulations will be established based on the best available information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after notice and opportunity for public review. § 216.106 Letter of Authorization. (a) A Letter of Authorization, which may be issued only to U.S. citizens, is required to conduct activities pursuant to any regulations established under § 216.105. Requests for Letters of Authorization shall be submitted to the Director, Office of Protected Resources. The information to be submitted in a request for an authorization will be specified in the appropriate subpart to this part or may be obtained by writing to the above named person. (b) Issuance of a Letter of Authorization will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. (c) Letters of Authorization will specify the period of validity and any additional terms and conditions appropriate for the specific request. (d) Notice of issuance of all Letters of Authorization will be published in the Federal Register (e) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as appropriate, if, after notice and opportunity for public comment, the Assistant Administrator determines that: (1) The regulations prescribed are not being substantially complied with; or (2) The taking allowed is having, or may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses. (f) The requirement for notice and opportunity for public review in § 216.106(e) shall not apply if the Assistant Administrator determines that an emergency exists that poses a significant risk to the wellbeing of the species or stocks of marine mammals concerned. (g) A violation of any of the terms and conditions of a Letter of Authorization or of the specific regulations shall subject the Holder and/or any individual who is operating under the authority of the Holder's Letter of Authorization to penalties provided in the MMPA. § 216.107 Incidental harassment authorization for Arctic waters. (a) Except for activities that have the potential to result in serious injury or mortality, which must be authorized under § 216.105, incidental harassment authorizations may be issued, following a 30-day public review period, to allowed activities that may result in only the incidental harassment of a small number of marine mammals. Each such incidental harassment authorization shall set forth: (1) Permissible methods of taking by harassment; (2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting, including requirements for the independent peer-review of proposed monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses. (b) Issuance of an incidental harassment authorization will be based on a determination that the number of marine mammals taken by harassment will be small, will have a negligible impact on the species or stock of marine mammal(s), and will not have an unmitigable adverse impact on the availability of species or stocks for taking for subsistence uses. (c) An incidental harassment authorization will be either issued or denied within 45 days after the close of the public review period. (d) Notice of issuance or denial of an incidental harassment authorization will be published in the Federal Register (e) Incidental harassment authorizations will be valid for a period of time not to exceed 1 year but may be renewed for additional periods of time not to exceed 1 year for each reauthorization. (f) An incidental harassment authorization shall be modified, withdrawn, or suspended if, after notice and opportunity for public comment, the Assistant Administrator determines that: (1) The conditions and requirements prescribed in the authorization are not being substantially complied with; or (2) The authorized taking, either individually or in combination with other authorizations, is having, or may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses. (g) The requirement for notice and opportunity for public review in paragraph (f) of this section shall not apply if the Assistant Administrator determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals concerned. (h) A violation of any of the terms and conditions of an incidental harassment authorization shall subject the holder and/or any individual who is operating under the authority of the holder's incidental harassment authorization to penalties provided in the MMPA. § 216.108 Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters. (a) Holders of an incidental harassment authorization in Arctic waters and their employees, agents, and designees must cooperate with the National Marine Fisheries Service and other designated Federal, state, or local agencies to monitor the impacts of their activity on marine mammals. Unless stated otherwise within an incidental harassment authorization, the holder of an incidental harassment authorization effective in Arctic waters must notify the Alaska Regional Director, National Marine Fisheries Service, of any activities that may involve a take by incidental harassment in Arctic waters at least 14 calendar days prior to commencement of the activity. (b) Holders of incidental harassment authorizations effective in Arctic waters may be required by their authorization to designate at least one qualified biological observer or another appropriately experienced individual to observe and record the effects of activities on marine mammals. The number of observers required for monitoring the impact of the activity on marine mammals will be specified in the incidental harassment authorization. If observers are required as a condition of the authorization, the observer(s) must be approved in advance by the National Marine Fisheries Service. (c) The monitoring program must, if appropriate, document the effects (including acoustical) on marine mammals and document or estimate the actual level of take. The requirements for monitoring plans, as specified in the incidental harassment authorization, may vary depending on the activity, the location, and the time. (d) Where the proposed activity may affect the availability of a species or stock of marine mammal for taking for subsistence purposes, proposed monitoring plans or other research proposals must be independently peer-reviewed prior to issuance of an incidental harassment authorization under this subpart. In order to complete the peer-review process within the time frames mandated by the MMPA for an incidental harassment authorization, a proposed monitoring plan submitted under this paragraph must be submitted to the Assistant Administrator no later than the date of submission of the application for an incidental harassment authorization. Upon receipt of a complete monitoring plan, and at its discretion, the National Marine Fisheries Service will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan. The applicant must submit a final monitoring plan to the Assistant Administrator prior to the issuance of an incidental harassment authorization. (e) At its discretion, the National Marine Fisheries Service may place an observer aboard vessels, platforms, aircraft, etc., to monitor the impact of activities on marine mammals. (f)(1) As specified in the incidental harassment authorization, the holder of an incidental harassment authorization for Arctic waters must submit reports to the Assistant Administrator within 90 days of completion of any individual components of the activity (if any), within 90 days of completion of the activity, but no later than 120 days prior to expiration of the incidental harassment authorization, whichever is earlier. This report must include the following information: (i) Dates and type(s) of activity; (ii) Dates and location(s) of any activities related to monitoring the effects on marine mammals; and (iii) Results of the monitoring activities, including an estimate of the actual level and type of take, species name and numbers of each species observed, direction of movement of species, and any observed changes or modifications in behavior. (2) Monitoring reports will be reviewed by the Assistant Administrator and, if determined to be incomplete or inaccurate, will be returned to the holder of the authorization with an explanation of why the report is being returned. If the authorization holder disagrees with the findings of the Assistant Administrator, the holder may request an independent peer review of the report. Failure to submit a complete and accurate report may result in a delay in processing future authorization requests. (g) Results of any behavioral, feeding, or population studies, that are conducted supplemental to the monitoring program, should be made available to the National Marine Fisheries Service before applying for an incidental harassment authorization for the following year. Subpart J—Taking of Eastern North Pacific (ENP) Gray Whales (Eschrichtius robustus) by the Makah Indian Tribe Off the Coast of Washington State Source: 89 FR 51636, June 18, 2024, unless otherwise noted. § 216.110 Purpose. The purpose of this subpart is to establish regulations governing the take of whales from the Eastern North Pacific (ENP) gray whale ( Eschrichtius robustus § 216.111 Scope. This subpart authorizes the taking of ENP gray whales only by enrolled members of the Makah Indian Tribe only. § 216.112 Definitions. In addition to the definitions provided in the MMPA, for purposes of this subpart, the following definitions apply: Barter Bonilla-Tatoosh Line Calf Enrolled member member ENP gray whale Eschrichtius robustus Export Gray whale Eschrichtius robustus. Harpooner Hunt hunting hunt Hunt permit Hunting approach Land landing Makah Indian handicrafts Makah Indian Tribe Tribe Minimum population estimate NMFS NMFS hunt observer Pacific Coast Feeding Group (PCFG) gray whale PCFG whale PCFG population estimate Recordkeeping reporting Regional Administrator Rifleman Safety officer Share Strike struck Struck and lost Summer/fall hunt Training approach Training harpoon throw Training vessel Tribal hunt observer U&A Makah Indian Tribe's U&A Unsuccessful strike attempt Western North Pacific (WNP) gray whale Eschrichtius robustus Whaling captain Whaling crew Winter/spring hunt § 216.113 Issuance and duration of permits. (a) Application. (i) The proposed duration of the permit; (ii) The maximum number of gray whales to be subjected to hunting or training approaches, struck, landed, and subjected to unsuccessful strike attempts; (iii) A demonstration that the proposed method of taking is humane; (iv) A demonstration that the proposed taking is consistent with this subpart; (v) A copy of the currently enacted Makah Indian Tribal ordinance governing whaling by Makah Indian Tribal members; (vi) A description of the certification process for whaling captains, riflemen, harpooners, Tribal hunt observers, and safety officers, including any guidelines or manuals used by the Tribe to certify such persons; (vii) Any additional hunt permit conditions proposed by the Tribe and a justification for the proposed conditions; and (viii) Any modification to this subpart sought by the Tribe and a justification for the proposed modification. (2) To obtain subsequent hunt permits, the Makah Indian Tribe must submit an application to the Regional Administrator, signed by an official of the Makah Tribal Council, that contains the information required in paragraph (a)(1) of this section and the following information and statements: (i) A description of how the Makah Indian Tribe has complied with the requirements of this subpart and previously issued hunt permits; (ii) A description of circumstances associated with gray whale(s) struck and lost under the most recently issued hunt permit, a description of the measures taken to retrieve such whale(s), and a description of measures taken by the Makah Indian Tribe to minimize future incidents of struck and lost gray whales; and (iii) A description of products obtained from gray whales landed under the most recently issued hunt permit, including a description of the disposition of any gray whale products deemed unsuitable for use by Makah Indian Tribal members. (3) The Regional Administrator will notify the Makah Indian Tribe of receipt of the application and will review the application for completeness. Incomplete applications will be returned with explanation. If the Makah Indian Tribe fails to resubmit a complete application within 60 days, the application will be deemed withdrawn. (4) After receipt of a complete application and the preparation of any National Environmental Policy Act (NEPA) documentation that the Regional Administrator has determined to be necessary, the Regional Administrator will publish a notice of receipt in the Federal Register (b) Issuance. (2) The Regional Administrator may not authorize hunting, hunting approaches, training approaches, or training harpoon throws from December 1 through May 31 unless: (i) The Tribe has obtained separate authorization to take WNP gray whales under any applicable provision of the MMPA; or (ii) The Regional Administrator determines, in consultation with the NMFS Office of Protected Resources, that take of WNP gray whales is not anticipated. (3) The Regional Administrator may not authorize hunting unless the population of the ENP gray whale stock is within its Optimum Sustainable Population (OSP) and the hunting authorized under the permit would not cause the stock to diminish below OSP. (4) The duration of the initial hunt permit may not exceed 3 years from its effective date, and thereafter the duration of a hunt permit may not exceed 5 years. (5) Each hunt permit will specify the following terms and conditions: (i) Those terms required by 16 U.S.C. 1374(b); (ii) The limits established under § 216.114(c); (iii) The area where hunts, hunting approaches, training approaches, and training harpoon throws are allowed, which will be limited to the waters of the Makah Indian Tribe's U&A west of the Bonilla-Tatoosh Line except as provided in § 216.117(a)(9), and any site and time restrictions to protect Olympic Coast National Marine Sanctuary resources pursuant to consultation under 16 U.S.C. 1434(d) of the National Marine Sanctuaries Act; (iv) The beginning and ending dates in each calendar year when the Makah Tribe may engage in hunting activities, as described in § 216.114(a), and training activities, as described in § 216.114(b); (v) The type and timing of notice that the Makah Indian Tribe must provide to NMFS before issuing a Tribal whaling permit authorizing a hunt, hunting approaches, training approaches, or training harpoon throws; (vi) Measures to be taken by the hunt permit holder to provide for the safety of the whaling crew, the public, and others during a hunt; (vii) That the hunt permit authorizes only the take of ENP gray whales and not the take of any other marine mammals; and (viii) Such other provisions as the Regional Administrator deems necessary. (6) Before issuing a hunt permit, the Regional Administrator must make the following determinations: (i) The authorized manner of hunting is humane; (ii) The Makah Indian Tribe has enacted a Tribal ordinance governing hunting that is consistent with this subpart; (iii) The Makah Indian Tribe has in place certification procedures for whaling captains, riflemen, harpooners, Tribal hunt observers, and safety officers and a process to ensure compliance with those procedures; (iv) There are adequate photo-identification catalogs and processes available to allow for the identification of WNP gray whales and PCFG whales as described in § 216.115(b); (v) The most recent PCFG population estimate is at least 192 whales and the associated minimum population estimate is at least 171 whales; (vi) The PCFG population estimate for the first hunting season covered by the permit is projected to be at least 192 whales and the associated minimum population estimate is projected to be at least 171 whales; (vii) Whether take authorization for WNP gray whales is required by the permit for the winter/spring hunt, or, if not, that the Regional Administrator, in consultation with the Office of Protected Resources, has determined that take of WNP gray whales is not anticipated; (viii) The population of the ENP gray whale stock is within its OSP and the hunting authorized in the permit will not cause the stock to diminish below OSP; and (ix) Except for the initial hunt permit, before issuing a hunt permit the Regional Administrator must determine that the Makah Indian Tribe has complied with the requirements of this subpart and all prior permit terms and conditions, or if the Makah Indian Tribe has not fully complied, that it has adopted measures to ensure compliance. § 216.114 Hunt management requirements and restrictions. (a) Hunting seasons. (1) Throughout the duration of the waiver, the authorized hunting dates will alternate between winter/spring hunts and summer/fall hunts, with winter/spring hunts starting in December of the same calendar year as a summer/fall hunt and summer/fall hunts starting in the calendar year following the year in which a winter/spring hunt has ended; (2) If the start date in the initial hunt permit falls within a winter/spring hunt period, the subsequent summer/fall hunt will commence in the calendar year following the ending date of said winter/spring hunt; and (3) If the start date in the initial hunt permit of the initial hunt season falls within a summer/fall hunt period, the subsequent winter/spring hunt will commence in December of the same calendar year as said summer/fall hunt. (b) Training period. (c) Hunting and training limits. (1) A hunt permit may authorize no more than 353 approaches, including both hunting and training approaches, each calendar year of which no more than 142 of such approaches may be on PCFG whales. Any hunting approach on a gray whale that has already been struck will not count against these limits. (2) A hunt permit may authorize no more than 18 unsuccessful strike attempts during winter/spring hunts and no more than 12 unsuccessful strike attempts during summer/fall hunts. Any unsuccessful strike attempt on a gray whale that has already been struck will not count against these limits. Training harpoon throws may be authorized between July 1 and October 31 in years of summer/fall hunts and at any time during winter/spring hunts as well as the subsequent 7 months of the calendar year in which those winter/spring hunts end. Each training harpoon throw will count against the unsuccessful strike attempt limit during the calendar year in which the harpoon throw is made. (3) A hunt permit may authorize no more than three ENP gray whales to be struck in a winter/spring hunt and no more than two ENP gray whales to be struck in a summer/fall hunt. Multiple strikes on the same whale will count as a single strike. In a winter/spring hunt, a hunt permit may authorize no more than one ENP gray whale to be struck within the 24-hour period commencing at the time of the initial strike against the whale. The Regional Administrator may authorize the full number of ENP gray whales to be struck in the initial hunt permit and will adjust strikes downward in subsequent permits if necessary to ensure that no more than 16 PCFG whales are struck over the waiver period, of which no more than 8 struck whales may be PCFG females. (4) A hunt permit may authorize no more than three ENP gray whales to be struck and lost in any calendar year. (5) A hunt permit may authorize no more than three ENP gray whales to be landed in a winter/spring hunt and no more than one ENP gray whale to be landed in a summer/fall hunt; the number of ENP gray whales that the hunt permit may authorize to be landed in any calendar year will not exceed the number agreed between the United States and the Russian Federation as the United States' share of the catch limit established by the International Whaling Commission. (d) Limits on PCFG whales. (2) By November 1 of each year, the Regional Administrator will notify the Makah Indian Tribe in writing of the proportion of gray whales in the hunt area that will be presumed to be PCFG whales and the proportion of PCFG whales that will be presumed to be females for each month of the upcoming calendar year. The presumed proportion of PCFG whales will be based on the best available evidence for the months of December through May and will be 100 percent for the months of June through November. The presumed proportion of female PCFG whales will be based on the best available information for each month. These proportions will be used for purposes of accounting for PCFG whales that are not otherwise identified or accounted for as provided under § 216.115(b). (3) The Regional Administrator will notify the Makah Indian Tribe in writing when the Tribe has reached the limit of PCFG whales that may be struck in any hunting season. (4) Notwithstanding the limits specified in this section, no hunting will be authorized for an upcoming season if the Regional Administrator determines, and notifies the Makah Indian Tribe pursuant to paragraph (d)(1) of this section, that either of the following conditions applies: (i) The most recent PCFG population estimate, based on photo-identification surveys, is less than 192 whales or the associated minimum population estimate is less than 171 whales; or (ii) The PCFG population estimate for the upcoming hunting season is projected to be less than 192 whales or the associated minimum population estimate is projected to be less than 171 whales. (e) ENP gray whales. (f) WNP gray whales. § 216.115 Accounting and identification of gray whales. (a) Images and samples. (b) Identification and accounting of gray whales Winter/spring hunts. (2) Summer/fall hunts. (3) Hunting and training approaches. (4) Unauthorized strikes. § 216.116 Use of edible and nonedible whale products. (a) Gray whales landed under a hunt permit may be utilized as follows: (1) Edible products of ENP gray whales. (i) Within the Tribe's reservation boundaries, enrolled members of the Makah Indian Tribe may share edible ENP gray whale products with any person. (ii) Outside the Makah Indian Tribe's reservation boundaries, enrolled members of the Makah Indian Tribe may share edible ENP gray whale products: (A) At the Tribal member's residence with any person, provided the products are shared for consumption at the Tribal member's residence; or (B) With any person attending a Tribal or intertribal gathering sanctioned by the Makah Tribal Council, so long as there is not more than 2 pounds of such edible product per person attending the gathering. (iii) Any person who is not an enrolled member of the Makah Indian Tribe may possess, consume, and transport edible ENP gray whale products within the Makah Indian Tribe's reservation boundaries so long as the products are shared by an enrolled member of the Makah Indian Tribe. Outside the Tribe's reservation boundaries, any person who is not an enrolled member of the Makah Indian Tribe may possess, consume, and transport edible gray whale products only at a Tribal member's residence or at a Tribal or intertribal gathering sanctioned by the Makah Tribal Council if such products are shared by an enrolled member of the Makah Indian Tribe and the person consumes the products at the gathering. (2) Nonedible products of ENP gray whales. (ii) Enrolled members of the Makah Indian Tribe may share or barter Makah Indian handicrafts that have not been marked and certificated per paragraph (a)(2)(iii) of this section with any person within the Tribe's reservation boundaries. (iii) Any person may possess, transport, share, barter, offer for sale, sell, or purchase a Makah Indian handicraft in the United States, provided the handicraft is permanently marked with a distinctive marking approved by the Makah Tribal Council, and is accompanied by a certificate of authenticity issued by the Makah Tribal Council or its designee and entered in the Tribe's official record of Makah Indian handicrafts. Such handicrafts may be delivered, carried, transported, or shipped in interstate commerce. (iv) Within the Makah Indian Tribe's reservation boundaries, any person who is not an enrolled member of the Makah Indian Tribe may possess and transport Makah Indian handicrafts that have not been marked and certificated per paragraph (a)(2)(iii) of this section, provided the handicraft was shared by or bartered from an enrolled member. Within the Makah Indian Tribe's reservation boundaries, persons not enrolled as a member of the Makah Indian Tribe may share or barter such handicrafts only with enrolled members. (b) The Makah Indian Tribe is responsible for managing all activities of any Makah Indian Tribal member carried out under this section. § 216.117 Prohibited acts. (a) It is unlawful for the Makah Indian Tribe or any enrolled member of the Makah Indian Tribe to: (1) Take any gray whale except as authorized by a hunt permit issued under § 216.113(b) or by any other provision of this part. (2) Participate in a hunt while failing to carry onboard the vessel at all times a hunt permit issued by NMFS and a Tribal whaling permit issued by the Makah Indian Tribe, or an electronic copy or photocopy of these permits. (3) Make a training approach or a training harpoon throw while failing to carry onboard the training vessel at all times an electronic copy or photocopy of the hunt permit issued by NMFS and a training logbook approved by the Makah Indian Tribe for recording training approaches and training harpoon throws. (4) Participate in a hunt as a whaling captain, rifleman, harpooner, Tribal hunt observer, or safety officer, unless the individual's name is included in a Tribal certification report issued under § 216.118(a)(6)(i). (5) Violate any provision of any hunt permit issued under § 216.113(b). (6) Make an approach on a calf or an adult gray whale accompanying a calf after a member of the whaling crew has identified the presence of a calf. (7) Fail to remain at least 100 yards (91.5 m) away from a calf or an adult accompanying a calf after a member of the whaling crew has identified the presence of a calf. (8) Hunt or make a training harpoon throw on a calf or an adult gray whale accompanying a calf. (9) Hunt outside the geographic area identified in § 216.113(b)(5)(iii) unless in pursuit of a gray whale that has already been struck within that area. (10) Hunt, make a hunting or training approach, or make a training harpoon throw after reaching the limits specified in the hunt permit per § 216.113(b)(5)(i) through (viii). (11) Hunt if the limit on PCFG whales or PCFG females that may be struck is less than one as a result of accounting per § 216.115(b)(1) through (3). (12) Hunt after the Makah Indian Tribe has been notified in writing by the Regional Administrator under § 216.114(d)(3) that the limit of PCFG whales that may be struck has been reached or that the PCFG abundance is below the limits specified in § 216.114(d)(4). (13) Hunt after a gray whale has been landed and before the Makah Indian Tribe has received notification from the Regional Administrator in accordance with § 216.115(b). (14) Hunt after the Makah Tribe has been notified by the Regional Administrator under § 216.114(e) that the ENP gray whale population has fallen below OSP. (15) Sell, offer for sale, or purchase any gray whale products, except Makah Indian handicrafts that have been marked and certificated per § 216.116(a)(2). (16) Export any gray whale products. (17) Barter edible gray whale products with any person not enrolled as a member of the Makah Indian Tribe. (18) Share edible gray whale products outside the Makah Indian Tribe's reservation boundaries with any person not enrolled as a member of the Makah Indian Tribe, except at a Tribal member's residence or with persons attending a Tribal or intertribal gathering sanctioned by the Makah Tribal Council, so long as there is not more than 2 pounds of edible product per person attending the gathering per § 216.116(a)(1)(ii)(B). (19) Share or barter nonedible gray whale products: (i) Outside the Makah Indian Tribe's reservation boundaries with any person not enrolled as a Makah Indian Tribal member, except Makah Indian handicrafts that are permanently marked and certificated per § 216.116(a)(2). (ii) Within the Makah Indian Tribe's reservation boundaries with any person not enrolled as a Makah Indian Tribal member except a product that has been fashioned into a Makah Indian handicraft whether or not it has been marked and certificated per § 216.116(a)(2)(iii). (20) Make a false statement in an application for a hunt permit or in a report required under this subpart. (21) Transfer or assign a hunt permit issued under this subpart. (22) Fail to submit reports required by this subpart. (23) Deny persons designated by NMFS access to landed gray whales for the purpose of collecting specimen samples. (24) Fail to provide required permits and reports for inspection upon request by persons designated by NMFS. (25) Allow anyone other than enrolled Makah Indian Tribal members to be part of a whaling crew or to allow anyone other than such members or Tribal hunt observers to be in a training vessel engaged in hunt training. (26) Hunt, or engage in hunting approaches, training approaches, or training harpoon throws without additional authorization to take WNP gray whales, if the Regional Administrator has notified the Tribe that additional authorization is required for the take of WNP gray whales. (b) It is unlawful for any person who is not an enrolled member of the Makah Indian Tribe to: (1) Share barter, purchase, sell, export, or offer to share, barter, purchase, sell, or export edible gray whale products. (2) Possess, consume, or transport edible gray whale products except: (i) Within the Makah Indian Tribe's reservation boundaries, when such products have been shared by an enrolled Makah Indian Tribal member; (ii) At the residence of a Tribal member, whether or not the residence is within the Tribe's reservation boundaries; and (iii) At Tribal or intertribal gatherings sanctioned by the Makah Tribal Council, whether or not the gathering is within the Tribe's reservation boundaries. (3) Purchase, sell, or offer to purchase or sell nonedible gray whale products except Makah Indian handicrafts that are marked and certificated per § 216.116(a)(2). (4) Export any gray whale products. (5) Outside the Makah Indian Tribe's reservation boundaries, possess, transport, share, or barter nonedible gray whale products except Makah Indian handicrafts that are marked and certificated per § 216.116(a)(2)(iii). (6) Within the Makah Indian Tribe's reservation boundaries, possess, transport, share, or barter any nonedible gray whale product except as provided in § 216.116(a)(2)(iii) and (iv). § 216.118 Requirements for monitoring, reporting, and recordkeeping. (a) In addition to the reporting provisions described in § 230.8 of this chapter, the Makah Indian Tribe will: (1) Ensure a certified Tribal hunt observer accompanies each hunt. The Tribal hunt observer will record in a hunting logbook the time, date, and location (latitude and longitude, accurate to at least the nearest second) of each hunting approach of a gray whale, each attempt to strike a gray whale, and each gray whale struck. For each gray whale struck, the Tribal hunt observer will record whether the whale was landed. If not landed, the Tribal hunt observer will describe the circumstances associated with the striking of the whale and estimate whether the animal suffered a wound that might be fatal. For every gray whale approached by the whaling crew, the Tribal hunt observer must make every reasonable attempt to collect digital photographs useful for photo-identification purposes. (2) Ensure that each vessel involved in a training approach has onboard a training logbook for recording the date, location, and number of gray whales approached and the number of training harpoon throws. Each training approach and training harpoon throw must be reported to the Tribal hunt observer within 24 hours. (3) Maintain hunting and training logbooks specified in paragraphs (a)(1) and (2) of this section and allow persons designated by NMFS to inspect them upon request. (4) Ensure that each whaling captain allows a NMFS hunt observer to accompany and observe any hunt. (5) Maintain an official record of all articles of Makah Indian handicraft, including the following information for each article certified by the Makah Tribal Council or its designee: the date of the certification; the permanent distinctive mark identifying the article as a Makah Indian handicraft; a brief description of the handicraft, including artist's full name, gray whale product(s) used, and approximate size; and at least one digital photograph of the entire handicraft. A copy of the official record of Makah Indian handicrafts must be provided to NMFS personnel, including NMFS enforcement officers, upon request. (6) Ensure that the following reports are filed electronically with the NMFS West Coast Region's office in Seattle, Washington, by the indicated date: (i) Tribal certification report. (ii) Incident report. (A) Struck and lost gray whale(s): The whaling captain's name; the Tribal hunt observer's name; the date, location (latitude and longitude, accurate to at least the nearest second), time, and number of strikes and attempted strikes if any; the method(s) of strikes and attempted strikes; an estimate of the whale's total length. The report will describe the circumstances associated with the striking of the whale and estimate whether the animal suffered a wound that might be fatal. The report will include all photographs taken by a Tribal hunt observer of gray whales struck and lost by the whaling crew. The report may also contain any other observations by the Makah Indian Tribe concerning the struck and lost whale(s) or circumstances of the hunt. (B) Struck and landed gray whale(s): The whaling captain's name; the Tribal hunt observer's name; the date, location (latitude and longitude, accurate to at least the nearest second), time, and number of strikes and attempted strikes if any; the method(s) of strikes and attempted strikes; the whale's body length as measured from the point of the upper jaw to the notch between the tail flukes; an estimate of the whale's maximum girth; the extreme width of the tail flukes; the whale's sex and, if female, lactation status; the length and sex of any fetus in the landed whale; photographs of the whale(s), including the entire dorsal right side, the entire dorsal left side, the dorsal aspect of the fluke, and the ventral aspect of the fluke. All such photographs must include a ruler to convey scale and a sign specifying the Makah Indian Tribe's name, whaling captain's name, whale species, and date. The report must also describe the time to death (measured from the time of the first strike to the time of death as indicated by relaxation of the lower jaw, no flipper movement, or sinking without active movement) and the disposition of all specimen samples collected and whale products, including any whale products deemed unsuitable for use by Makah Indian Tribal members. The report may also contain any other observations by the Makah Indian Tribe concerning the landed whale or circumstances of the hunt. (iii) Hunt report. (A) Struck and lost gray whale(s): The report must contain the information specified in paragraph (a)(6)(ii)(A) of this section. (B) Struck and landed gray whale(s): The report must contain the information specified in paragraph (a)(6)(ii)(B) of this section. (C) Hunting approaches and unsuccessful strike attempt(s): For each gray whale approached or subjected to an unsuccessful strike attempt(s), the report must contain: The whaling captain's name; the Tribal hunt observer's name; the date, location (latitude and longitude, accurate to at least the nearest second), time, and number of approaches and unsuccessful strike attempts; the method of attempted strikes; an estimate of the total length of any whale subjected to an unsuccessful strike attempt; and all photographs taken by a Tribal hunt observer of gray whales approached by the whaling crew. The report may also contain any other observations by the Makah Indian Tribe concerning the whale(s) approached or subjected to unsuccessful strike attempts or circumstances of the hunt. (iv) Annual approach report. (v) Annual handicraft report. (vi) Availability of reports. (b) Upon receiving an incident report specified in paragraph (a)(6)(ii) of this section documenting that eight gray whales have been struck, the Regional Administrator will evaluate: (1) The photo-identification and notification requirements described in §§ 216.113(b)(6)(iv) and 216.115. The evaluation will address the status of gray whale photo-identification catalogs used to manage gray whale hunts authorized under this subpart, the survey efforts employed to keep those catalogs updated, the level of certainty associated with identifying cataloged WNP gray whales and PCFG whales, the role of ancillary information such as genetic data during catalog review, and any other elements deemed appropriate by the Regional Administrator. The evaluation will be made available to the public no more than 120 days after receiving the subject incident report. (2) The humaneness of the authorized manner of hunting as specified in § 216.113(a)(1)(iii). To evaluate humaneness, NMFS will convene a team composed of a veterinarian, a marine mammal biologist, and all Tribal hunt observers and NMFS hunt observers who were witness to the strikes described in the incident reports required by this section. The team's evaluation will address the effectiveness of the hunting methods used by the Makah Indian Tribe, the availability and practicability of other such methods, and the time to death of hunted whales, and any other matters deemed appropriate by the Regional Administrator and the team. The team's evaluation will be made available to the public no more than 120 days after receiving the subject incident report. (c) The NMFS West Coast Region's Seattle office is located at 7600 Sand Point Way NE, Seattle, WA 98115-0070. § 216.119 Expiration and amendment. (a) The 10-year waiver period begins the first day of the first season after issuance of the initial hunt permit. The waiver and this subpart will expire 10 years after the effective date of the initial hunt permit specified under § 216.113(b), unless extended. (b) If the initial permit begins during a hunt season, resulting in only a partial season being authorized, the Regional Administrator may authorize a partial season that is equivalent in duration to the difference between the partial season in the first hunt year and the full season. This second partial season can only be authorized in the final calendar year during the waiver period. (c) This subpart may be periodically reviewed and modified as provided in 16 U.S.C. 1373(e). Subparts K-X [Reserved] Figure 1 to Part 216—Northern Fur Seal Breeding Areas (Rookeries) and Hauling Grounds on St. George Island, Alaska [79 FR 65338, Nov. 4, 2014]

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