[Code of Federal Regulations] [Title 50, Volume 7] [Revised as of October 1, 2005] From the U.S. Government Printing Office via GPO Access [CITE: 50CFR216] [Page 5-80] TITLE 50--WILDLIFE AND FISHERIES CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE PART 216_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS Subpart A_Introduction Sec. 216.1 Purpose of regulations. 216.2 Scope of regulations. 216.3 Definitions. 216.4 Other laws and regulations. 216.5 Payment of penalty. 216.6 Forfeiture and return of seized property. 216.7 Holding and bonding. 216.8 Enforcement officers. Subpart B_Prohibitions 216.11 Prohibited taking. 216.12 Prohibited importation. 216.13 Prohibited uses, possession, transportation, sales, and permits. 216.14 Marine mammals taken before the MMPA. 216.15 Depleted species. 216.16 Prohibitions under the General Authorization for Level B harassment for scientific research. 216.17 General prohibitions. Subpart C_General Exceptions 216.21 Actions permitted by international treaty, convention, or agreement. 216.22 Taking by State or local government officials. 216.23 Native exceptions. 216.24 Taking and related acts incidental to commercial fishing operations by tuna purse seine vessels in the eastern tropical Pacific Ocean. 216.25 Exempted marine mammals and marine mammal products. 216.26 Collection of certain marine mammal parts without prior authorization. 216.27 Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals. Subpart D_Special Exceptions 216.30 [Reserved] 216.31 Definitions. 216.32 Scope. 216.33 Permit application submission, review, and decision procedures. 216.34 Issuance criteria. 216.35 Permit restrictions. 216.36 Permit conditions. 216.37 Marine mammal parts. 216.38 Reporting. 216.39 Permit amendments. 216.40 Penalties and permit sanctions. 216.41 Permits for scientific research and enhancement. 216.42 Photography. [Reserved] 216.43 Public display. [Reserved] 216.44 Applicability/transition. 216.45 General Authorization for Level B harassment for scientific research. 216.46 U.S. citizens on foreign flag vessels operating under the International Dolphin Conservation Program. 216.47 Access to marine mammal tissue, analyses, and data. 216.48-216.49 [Reserved] Subpart E_Designated Ports 216.50 Importation at designated ports. Subpart F_Pribilof Islands, Taking for Subsistence Purposes 216.71 Allowable take of fur seals. 216.72 Restrictions on taking. 216.73 Disposition of fur seal parts. 216.74 Cooperation with Federal officials. Subpart G_Pribilof Islands Administration 216.81 Visits to fur seal rookeries. 216.82 Dogs prohibited. 216.83 Importation of birds or mammals. 216.84 [Reserved] 216.85 Walrus and Otter Islands. 216.86 Local regulations. 216.87 Wildlife research. Subpart H_Dolphin Safe Tuna Labeling 216.90 Purposes. 216.91 Dolphin-safe labeling standards. 216.92 Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels. 216.93 Tracking and verification program. 216.94 False statements or endorsements. 216.95 Official mark for ``Dolphin-safe'' tuna products. Subpart I_General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities 216.101 Purpose. [[Page 6]] 216.102 Scope. 216.103 Definitions. 216.104 Submission of requests. 216.105 Specific regulations. 216.106 Letter of Authorization. 216.107 Incidental harassment authorization for Arctic waters. 216.108 Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters. Subpart J [Reserved] Subpart K_Taking of Marine Mammals Incidental to Space Vehicle and Test Flight Activities 216.120 Specified activity and specified geographical region. 216.121 Effective dates. 216.122 Permissible methods of taking. 216.123 Prohibitions. 216.124 Mitigation. 216.125 Requirements for monitoring and reporting. 216.126 Applications for Letters of Authorization. 216.127 Renewal of Letters of Authorization. 216.128 Modifications of Letters of Authorization. Subparts L-M [Reserved] Subpart N_Taking of Marine Mammals Incidental to Missile Launch Operations from San Nicolas Island, CA 216.151 Specified activity, geographical region, and incidental take levels. 216.152 Effective dates. 216.153 Permissible methods of taking; mitigation. 216.154 Prohibitions. 216.155 Requirements for monitoring and reporting. 216.156 Letter of Authorization. 216.157 Renewal of the Letter of Authorization. 216.158 Modifications to the Letter of Authorization. Subpart O [Reserved] Subpart P_Taking of Marine Mammals Incidental to Operating a Low Frequency Acoustic Source by the North Pacific Acoustic Laboratory 216.170 Specified activity and specified geographical region. 216.171 Effective dates. 216.172 Permissible methods of taking. 216.173 Prohibitions. 216.174 Mitigation. 216.175 Requirements for monitoring and reporting. 216.176 Letter of authorization. 216.177 Renewal of a letter of authorization. 216.178 Modifications to a letter of authorization. Subpart Q_Taking of Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) Sonar 216.180 Specified activity and specified geographical region. 216.181 Effective dates. 216.182 Permissible methods of taking. 216.183 Prohibitions. 216.184 Mitigation. 216.185 Requirements for monitoring. 216.186 Requirements for reporting. 216.187 Applications for Letters of Authorization. 216.188 Letters of Authorization. 216.189 Renewal of Letters of Authorization. 216.190 Modifications to Letters of Authorization. 216.191 Designation of Biologically Important Marine Mammal Areas. Note to part 216: See also 50 CFR parts 228 and 229 for regulations governing certain incidental takings of marine mammals. Authority: 16 U.S.C. 1361 et seq., unless otherwise noted. Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted. Subpart A_Introduction Sec. 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. Sec. 216.2 Scope of regulations. This part 216 applies solely to marine mammals and marine mammal products as defined in Sec. 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] Sec. 216.3 Definitions. In addition to definitions contained in the MMPA, and unless the context otherwise requires, in this part 216: Acts means, collectively, the Marine Mammal Protection Act of 1972, as [[Page 7]] amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et seq. Active sportfishing means paying passengers have their terminal fishing gear (lures, hooks, etc.) in the water in an attempt to catch fish or, in the case of fishing involving chumming, fishing is considered to be in progress from the instant fish have been sighted taking bait (boiling) during that chumming process. Administrator, Southwest Region means the Regional Administrator, Southwest Region, National Marine Fisheries Service, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, or his or her designee. Agreement on the International Dolphin Conservation Program (Agreement on the IDCP) means the Agreement establishing the formal binding IDCP that was signed in Washington, DC on May 21, 1998. Alaskan Native means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the United States who is of one-fourth degree or more Alaska Indian (including Tsimishian Indians enrolled or not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood or combination thereof. The term includes any Native, as so defined, either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or group, of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any Native village or Native group. Any such citizen enrolled by the Secretary of the Interior pursuant to section 5 of the Alaska Native Claims Settlement Act shall be conclusively presumed to be an Alaskan Native for purposes of this part. Article of handicraft means items made by an Indian, Aleut or Eskimo from the nonedible byproducts of fur seals taken for personal or family consumption which-- (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 Sec. 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 means the Assistant Administrator for Fisheries, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Silver Spring, MD 20910, or his/her designee. Authentic native articles of handicrafts and clothing means items made by an Indian, Aleut or Eskimo which (a) were commonly produced on or before December 21, 1972, and (b) are composed wholly or in some significant respect of natural materials, and (c) 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 Sec. 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. [[Page 8]] Bona fide scientific research: (1) Means scientific research on marine mammals conducted by qualified personnel, the results of which: (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). Carrying capacity means the Regional Director's determination of the maximum amount of fish that a vessel can carry in short tons based on the greater of the amount indicated by the builder of the vessel, a marine surveyor's report, or the highest amount reported landed from any one trip. Certified charter vessel means a fishing vessel of a non-U.S. flag nation, which is operating under the jurisdiction of the marine mammal laws and regulations of another, harvesting, nation by a formal declaration entered into by mutual agreement of the nations. Co-investigator means the on-site representative of a principal investigator. Commercial fishing operation means the lawful harvesting of fish from the marine environment for profit as part of an ongoing business enterprise. Such terms may include licensed com mercial passenger fishing vessel (as defined) activities, but no other sport fish ing activities, whether or not the fish so caught are subsequently sold. Commercial passenger fishing vessel means any vessel licensed for commercial passenger fishing purposes within the State out of which it is operating and from which, while under charter or hire, persons are legally permitted to conduct sportfishing activities. Custody means holding a live marine mammal pursuant to the conditional authority granted under the MMPA, and the responsibility therein for captive maintenance of the marine mammal. Declaration of Panama means the declaration signed in Panama City, Republic of Panama, on October 4, 1995. Director, Office of Protected Resources means Director, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. Dolphin Mortality Limit (DML) means the maximum allowable number of incidental dolphin mortalities per calendar year assigned to a vessel, unless a shorter time period is specified. Endangered Species means a species or subspecies of marine mammal listed as ``endangered'' pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205 (see part 17 of this title). ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq. ETP means the eastern tropical Pacific Ocean which includes the Pacific Ocean area bounded by 40[deg] N. latitude, 40[deg] S. latitude, 160[deg] W. longitude and the coastlines of North, Central and South America. Facility means, in the context specific to captive marine mammals,: (1) One or more permanent primary enclosures used to hold marine mammals captive (i.e., pools, lagoons) and associated infrastructure (i.e., equipment and supplies necessary for the care and maintenance of marine mammals) where these enclosures are either located within the boundaries of a single contiguous parcel of land and water, or are grouped together within the same general area within which enclosure-to-enclosure transport is expected to be completed in less than one hour; or (2) A traveling display/exhibit, where the enclosure(s) and associated infrastructure is transported together with the marine mammals. Feeding is offering, giving, or attempt ing to give food or non-food items to marine mammals in the wild. It in cludes operating a vessel or providing other platforms from which feeding is conducted or supported. It does not include the routine discard of bycatch during fishing operations or the routine discharge of waste or fish byproducts from fish processing plants or other platforms if the discharge is [[Page 9]] otherwise legal and is incidental to operation of the activity. First exporter means the person or com pany that first exports the fish or fish product, or, in the case of shipments that are subject to the labeling requirements of 50 CFR part 247 and that only contain fish harvested by vessels of the United States, the first seller of the fish or fish product. Fisheries Certificate of Origin, or FCO, means NOAA Form 370, as described in Sec. 216.24(f)(4). Force majeure means forces outside the vessel operator's or vessel owner's control that could not be avoided by the exercise of due care. FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et seq. Fur seal means North Pacific fur seal, scientifically known as Cal lorhi nus ursinus. Hard part means any bone, tooth, baleen, treated pelt, or other part of a marine mammal that is relatively solid or durable. Harvesting nation means the country under whose flag one or more fishing vessels are documented, or which has by formal declaration agreed to assert jurisdiction over one or more certified charter vessels, from which vessel(s) fish are caught that are a part of any cargo or shipment of fish to be imported into the United States, regardless of any intervening transshipments. Humane means the method of taking, import, export, or other activity which involves the least possible degree of pain and suffering practicable to the animal involved. Import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction constitutes an importation within the Customs laws of the United States; except that, for the purpose of any ban issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish products, the definition of ``import'' in Sec. 216.24(f)(1)(ii) shall apply. Incidental catch means the taking of a marine mammal (1) because it is directly interfering with commercial fishing operations, or (2) as a consequence of the steps used to secure the fish in connection with commercial fishing operations: Provided, That a marine mammal so taken must immediately be returned to the sea with a minimum of injury and further, that the taking of a marine mammal, which otherwise meets the requirements of this definition shall not be considered an incidental catch of that mammal if it is used subsequently to assist in commercial fishing operations. Intentional purse seine set means that a tuna purse seine vessel or associated vessels chase marine mammals and subsequently make a purse seine set. International Dolphin Conservation Program (IDCP) means the international program established by the agreement signed in La Jolla, California, in June 1992, as formalized, modified, and enhanced in accordance with the Declaration of Panama and the Agreement on the IDCP. International Dolphin Conservation Program Act (IDCPA) means Public Law 105-42, enacted into law on August 15, 1997. International Review Panel (IRP) means the International Review Panel established by the Agreement on the IDCP. Intrusive research means a procedure conducted for bona fide scientific research involving: A break in or cutting of the skin or equivalent, insertion of an instrument or material into an orifice, introduction of a substance or object into the animal's immediate environment that is likely either to be ingested or to contact and directly affect animal tissues (i.e., chemical substances), or a stimulus directed at animals that may involve a risk to health or welfare or that may have an impact on normal function or behavior (i.e., audio broadcasts directed at animals that may affect behavior). For captive animals, this definition does not include: (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 [[Page 10]] (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 means a display of written, printed, or graphic matter on or affixed to the immediate container of any article. Land or landing means to begin offloading any fish, to arrive in port with the intention of offloading fish, or to cause any fish to be offloaded. Large-scale driftnet means a gillnet that is composed of a panel or panels of webbing, or a series of such gillnets, with a total length of 2.5 kilometers or more that is used on the high seas and allowed to drift with the currents and winds for the purpose of harvesting fish by entangling the fish in the webbing of the net. Level A Harassment means any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild. Level B Harassment means any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering but which does not have the potential to injure a marine mammal or marine mammal stock in the wild. Marine environment means the oceans and the seas, including estuarine and brackish waters. Marine mammal means those specimens of the following orders, which are morphologically adapted to the marine environment, and whether alive or dead, and any part thereof, including but not limited to, any raw, dressed or dyed fur or skin: Cetacea (whales, dolphins, and porpoises) and Pinnipedia, other than walrus (seals and sea lions). MMPA means the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 et seq. Native village or town means any community, association, tribe, band, clan or group. Optimum sustainable population is a population size which falls within a range from the population level of a given species or stock which is the largest supportable within the ecosystem to the population level that results in maximum net productivity. Maximum net productivity is the greatest net annual increment in population numbers or biomass resulting from additions to the population due to reproduction and/or growth less losses due to natural mortality. Per-stock per-year dolphin mortality limit means the maximum allowable number of incidental dolphin mortalities and serious injuries from a specified stock per calendar year, as established under the IDCP. Pregnant means pregnant near term. Pribilovians means Indians, Aleuts, and Eskimos who live on the Pribilof Islands. Principal investigator means the individual primarily responsible for the taking, importation, export, and any related activities conducted under a permit issued for scientific research or enhancement purposes. Public display means an activity that provides opportunities for the public to view living marine mammals at a facility holding marine mammals captive. Regional Director means the Regional Administrator, Northeast Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930; or Regional Administrator, Northwest Regional Office, NMFS, 7600 Sandpoint Way, N.E., Building 1, Seattle, WA 98115; or Regional Administrator, Southeast Regional Office, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702; or Regional Administrator, Southwest Regional Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802; or Regional Administrator, Pacific Islands Regional Office, NMFS, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814; or Regional Administrator, Alaska Regional Office, NMFS, PO Box 21668, Juneau, AK 99802. Rehabilitation means treatment of beached and stranded marine mammals taken under section 109(h)(1) of the MMPA or imported under section 109(h)(2) of the MMPA, with the intent of restoring the marine mammal's [[Page 11]] health and, if necessary, behavioral patterns. Secretary shall mean the Secretary of Commerce or his authorized representative. Serious injury means any injury that will likely result in mortality. Sexual harassment means any unwelcome sexual advance, request for sexual favors, or other verbal and physical conduct of a sexual nature which has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Soft part means any marine mammal part that is not a hard part. Soft parts do not include urine or fecal material. South Pacific Ocean means any waters of the Pacific Ocean that lie south of the equator. South Pacific Tuna Treaty means the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (50 CFR part 300, subpart D). Stranded or stranded marine mammal means a marine mammal specimen under the jurisdiction of the Secretary: (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 un able to return to its natural habitat under its own power. Subsistence means the use of marine mammals taken by Alaskan Natives for food, clothing, shelter, heating, transportation, and other uses necessary to maintain the life of the taker or those who depend upon the taker to provide them with such subsistence. Subsistence uses means the customary and traditional uses of fur seals taken by Pribilovians for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation; for the making and selling of handicraft articles out of nonedible byproducts of fur seals taken for personal or family consumption; and for barter, or sharing for personal or family consumption. As used in this definition-- (1) Family means all persons related by blood, marriage, or adoption, or any person living within a household on a permanent basis. (2) Barter means the exchange of fur seals or their parts, taken for subsistence uses-- (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 means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal. This includes, without limitation, any of the following: The collection of dead animals, or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild. Threatened species means a species of marine mammal listed as ``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205. Trip means a voyage starting when a vessel leaves port with all fish wells empty of fish and ending when a vessel unloads all of its fish. Tuna product means any food product processed for retail sale and intended for human or animal consumption that contains an item listed in Sec. 216.24(f)(2)(i) or (ii), but does not include perishable items with a shelf life of less than 3 days. Wasteful manner means any taking or method of taking which is likely to result in the killing of marine mammals beyond those needed for subsistence, subsistence uses, or for the making of authentic native articles of handicrafts and clothing, or which results in the waste of a substantial portion of the marine mammal and includes, without limitation, the employment of a method of taking which is not likely to assure the capture or killing of a marine mammal, or which is not immediately [[Page 12]] followed by a reasonable effort to retrieve the marine mammal. [39 FR 1852, Jan. 15, 1974] Editorial Note: For Federal Register citations affecting Sec. 216.3, see the List of Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access. Sec. 216.4 Other laws and regulations. (a) Federal. Nothing in this part, nor any permit issued under authority of this part, shall be construed to relieve a person from any other requirements imposed by a statute or regulation of the United States, including any applicable statutes or regulations relating to wildlife and fisheries, health, quarantine, agriculture, or customs. (b) State laws or regulations. See part 403 of this chapter. [39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, 1993] Sec. 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] Sec. 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 Sec. 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, That if no such civil penalty proceedings have been commenced by the Secretary within 30 days following the final disposition of the criminal case, any property seized pursuant to section 107 of the MMPA shall be returned to the respondent. (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, [[Page 13]] 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, That if it is the final decision of the Secretary under these regulations that the respondent has committed the alleged violation, all charges which have accrued for the storage, care, or handling of the seized property shall be for the account of the respondent. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994] Sec. 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 Sec. 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] Sec. 216.8 Enforcement officers. Enforcement Agents of the National Marine Fisheries Service shall en force the provisions of the MMPA and may take any actions authorized by the MMPA with respect to enforcement. In ad dition, 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 provi sions 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 Sec. 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] Sec. 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 Sec. Sec. 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. [[Page 14]] (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] Sec. 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] Sec. 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. [[Page 15]] (d) This section has no application to any marine mammal or marine mammal product intended to be imported pursuant to Sec. Sec. 216.21, 216.31 or Sec. 216.32. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994] Sec. 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 mystic e tus). (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island population. (d) Bottlenose dolphin (Tursiops trunca tus), coastal-migratory stock along the U.S. mid-Atlantic coast. (e) Eastern spinner dolphin (Stenella longirostris orientalis). (f) Northeastern offshore spotted dolphin (Stenella attenuata). (g) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus leucas). The stock includes all beluga whales occurring in waters of the Gulf of Alaska north of 58[deg] North latitude including, but not limited to, Cook Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince William Sound, Yakutat Bay, Shelikof Strait, and off Kodiak Island and freshwater tributaries to these waters. (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). The stock includes all killer whales belonging to the AT1 group of transient killer whales occurring primarily in waters of Prince William Sound, Resurrection Bay, and the Kenai Fjords region of Alaska. [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] Sec. 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 Sec. 216.45(b); (b) Violate any term or condition imposed pursuant to Sec. 216.45(d). [59 FR 50376, Oct. 3, 1994] Sec. 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] Subpart C_General Exceptions Sec. 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 [[Page 16]] 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] Sec. 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. In the performance of official duties, a state or local government employee; 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; or a person authorized under 16 U.S.C. 1382(c) may take and salvage a marine mammal specimen if it is stranded and dead or it was stranded or rescued and died during treatment, transport, captivity or other rehabilitation subsequent to that stranding or distress if salvage is for the purpose of utilization in scientific research or for the purpose of maintenance in a properly curated, professionally accredited scientific collection. (2) Registration. A person salvaging a dead marine mammal specimen under this section must register the salvage of the specimen with the appropriate Regional Office of the National Marine Fisheries Service within 30 days after the taking or death occurs. The registration must include: (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. The Regional Director will assign a single unique number to each carcass, and the parts thereof, that are salvaged under [[Page 17]] the provisions of this section. The person who salvaged the specimen may designate the number to be assigned. After this number is assigned, the person who salvaged the specimen must permanently mark that number on each separate hard part of that specimen and must affix that number with tags or labels to each soft part of that specimen or the containers in which that soft part is kept. Each specimen salvaged under this section must be curated in accordance with professional standards. (4) No sale or commercial trade. No person may sell or trade for commercial purposes any marine mammal specimen salvaged under this section. (5) Transfer without prior authorization. A person who salvages a marine mammal specimen under this section may transfer that specimen to another person if: (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. Except as provided under paragraphs (c)(5) and (c)(8) of this section, a person who salvages a marine mammal specimen, or who has received a marine mammal specimen under the provisions of this section, may not transfer that specimen to another person within the United States unless the Regional Director of the appropriate Regional Office of the National Marine Fisheries Service grants prior written authorization for the transfer. The Regional Director may grant authorization for the transfer if there is evidence that the conditions listed under paragraphs (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this section are met. (7) Tranfers outside of the United States. A person who salvages a marine mammal specimen, or a person who has received a marine mammal specimen under the provisions of this section, may not transfer that specimen to a person outside of the United States unless the Assistant Administrator grants prior written authorization for the transfer. The Assistant Administrator may grant authorization for the transfer if there is evidence that the conditions listed under paragraphs (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this section are met. (8) Exceptions to requirements for notification or prior authorization. A person may transfer a marine mammal specimen salvaged under this section without the notification required in paragraph (c)(5)(v) of this section or the prior authorization required in paragraph (c)(6) of this section if: (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] Sec. 216.23 Native exceptions. (a) Taking. Notwithstanding the prohibitions of subpart B of this part 216, but subject to the restrictions contained in this section, any Indian, Aleut, or Eskimo who resides on the [[Page 18]] coast of the North Pacific Ocean or the Arctic Ocean may take any marine mammal without a permit, if such taking is: (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. (1) No marine mammal taken for subsistence may be sold or otherwise transferred to any person other than an Alaskan Native or delivered, carried, transported, or shipped in interstate or foreign commerce, unless: (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 [[Page 19]] 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. (1) Definitions. In addition to definitions contained in the MMPA and the regulations in this part: (i) Reporting means the collection and delivery of biological data, harvest data, and other information regarding the effect of taking a beluga whale (Delphinapterus leucas) from Cook Inlet, as required by NMFS. (ii) Whaling captain or vessel operator means the individual who is identified by Alaskan Natives as the leader of each hunting team (usually the other crew on the boat) and who is the whaling captain; or the individual operating the boat at the time the whale is harvested or transported to the place of processing. (iii) Cook Inlet means all waters of Cook Inlet north of 59[deg] North latitude, including, but not limited to, waters of Kachemak Bay, Kamishak Bay, Chinitna Bay, and Tuxedni Bay. (2) Marking. Each whaling captain or vessel operator, upon killing and landing a beluga whale (Delphinapterus leucas) from Cook Inlet, Alaska, must remove the lower left jawbone, leaving the teeth intact and in place. When multiple whales are harvested during one hunting trip, the jawbones will be marked for identification in the field to ensure correct reporting of harvest information by placing a label marked with the date, time, and location of harvest within the container in which the jawbone is placed. The jawbone(s) must be retained by the whaling captain or vessel operator and delivered to NMFS at the Anchorage Field Office, 222 West 7th Avenue, Anchorage, Alaska 99513 within 72 hours of returning from the hunt. (3) Reporting. Upon delivery to NMFS of a jawbone, the whaling captain or vessel operator must complete and mail a reporting form, available from NMFS, to the NMFS Anchorage Field Office within 30 days. A separate form is required for each whale harvested. (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. (1) Cooperative management of subsistence harvest. Subject to the provisions of 16 U.S.C. 1371(b) and any further limitations set forth in Sec. 216.23, any taking of a Cook Inlet beluga whale by an Alaska Native must be authorized under an agreement for the co-management of subsistence uses (hereinafter in this paragraph ``co-management agreement'') between the National Marine Fisheries Service and an Alaska Native organization(s). (2) Limitations. (i) Sale of Cook Inlet beluga whale parts and products. Authentic Native articles of handicraft and clothing made from nonedible by-products of beluga whales taken in accordance with the provisions of this paragraph may be sold in interstate commerce. The sale of any other part or product, including food stuffs, from Cook Inlet beluga whales is prohibited, provided that nothing herein shall be interpreted to prohibit or restrict customary and traditional subsistence practices of barter and sharing of Cook Inlet beluga parts and products. (ii) Beluga whale calves or adults with calves. The taking of a calf or an adult whale accompanied by a calf is prohibited. (iii) Season. All takings of beluga whales authorized under Sec. 216.23(f) shall occur no earlier than July 1 of each year. [[Page 20]] (iv) Taking during 2001-2004. The harvest of Cook Inlet beluga whales is restricted during the four-year period of 2001-2004 as follows: (A) Strike limitations. Subject to the suspension provision of subparagraph (C), a total of six (6) strikes, which could result in up to six landings, are to be allocated through co-management agreement(s). (B) Strike allocations. Four strikes, not to exceed one per year, are allocated to the Native Village of Tyonek. The remaining two strikes will be allocated over the 4-year period through co-management agreement with other Cook Inlet community hunters, with no more than one such strike being allocated during every other year. (C) Emergency provisions. Takings of beluga whales authorized under Sec. 216.23 will be suspended whenever unusual mortalities exceed six (6) whales in any year. ``Unusual mortalities'' include all documented human-caused mortality (including illegal takings and net entanglements but excluding all legally harvested whales) and all documented mortality resulting from unknown or natural causes that occur above normal levels, considered for the purposes of this provision to be twelve beluga whales per year. The level of unusual mortalities shall be calculated by documenting mortality for the calendar year and subtracting twelve. The sum of this result and the carry over of unusual mortality from any previous year from which the population has not recovered is the level of unusual mortalities for the current year. If in any year the number of unusual mortalities exceeds six whales, no strikes will be allowed in that year or in subsequent years until the population has recovered from those mortalities through foregone future harvests and natural recruitment. (v) Taking during 2005 and subsequent years. [Reserved] [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] Sec. 216.24 Taking and related acts incidental to commercial fishing operations by 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 Sec. 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. [[Page 21]] (3) Upon written request made in advance of entering the ETP, the limitations in paragraphs (a)(2)(i) and (a)(2)(ii) of this section may be waived by the Administrator, Southwest 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, Southwest Region, the vessel's date of exit from or subsequent entry into the permit area. (b) Permits--(1) Vessel permit. The owner or managing owner of a U.S. purse seine fishing vessel of greater than 400 st (362.8 mt) carrying capacity that participates in commercial fishing operations in the ETP must possess a valid vessel permit issued under paragraph (b) of this section. This permit is not transferable and must be renewed annually. If a vessel permit holder surrenders his/her permit to the Administrator, Southwest Region, the permit will not be returned and a new permit will not be issued before the end of the calendar year. Vessel permits will be valid through December 31 of each year. (2) Operator permit. The person in charge of and actually controlling fishing operations (hereinafter referred to as the operator) on a U.S. purse seine fishing vessel engaged in commercial fishing operations under a vessel permit must possess a valid operator permit issued under paragraph (b) of this section. Such permits are not transferable and must be renewed annually. To receive a permit, the operator must have satisfactorily completed all required training under paragraph (c)(5) of this section. The operator's permit is valid only when the permit holder is on a vessel with a valid vessel permit. Operator permits will be valid through December 31 of each year. (3) Possession and display. A valid vessel permit issued pursuant to paragraph (b)(1) of this section must be on board the vessel while engaged in fishing operations, and a valid operator permit issued pursuant to paragraph (b)(2) of this section must be in the possession of the operator to whom it was issued. Permits must be shown upon request to NMFS enforcement agents, U.S. Coast Guard officers, or designated agents of NMFS or the Inter-American Tropical Tuna Commission (IATTC) (including observers). A vessel owner or operator who is at sea on a fishing trip when his or her permit expires and to whom a permit for the next year has been issued, may take marine mammals under the terms of the new permit without having to display it on board the vessel until the vessel returns to port. (4) Application for vessel permit. The owner or managing owner of a purse seine vessel may apply for a permit from the Administrator, Southwest Region, allowing at least 15 days for processing. All vessel permit applications must be faxed to (562) 980-4027. An owner or managing owner requesting to have a vessel in excess of 400 st (362.8 mt) carrying capacity for which a DML was requested categorized as active on the Vessel Register under Sec. 300.22(b)(4)(i) of this title must submit to the Administrator, Southwest Region, the vessel permit application, payment of the observer placement fee under paragraph (b)(6)(iii) of this section and payment of the vessel permit application processing fee no later than September 15 of the year prior to the year for which the DML was requested. The owner or managing owner of a vessel in excess of 400 st (362.8 mt) carrying capacity not requesting a DML must submit the vessel permit application, payment of the observer placement fee, and payment of the vessel permit application processing fee no later than November 30 of the year prior to the year for which the vessel permit was requested. An application must contain: (i) The name, official number, tonnage, carrying capacity in short or metric tons, maximum speed in knots, processing equipment, and type and quantity of gear, including an inventory of equipment required under paragraph (c)(3) of this section if the application is for purse seining involving the intentional taking of marine mammals, of the vessel that is to be covered under the permit; (ii) A statement of whether the vessel will make sets involving the intentional taking of marine mammals; [[Page 22]] (iii) The type and identification number(s) of Federal, state, and local commercial fishing licenses under which vessel operations are conducted, and the dates of expiration; (iv) The name(s) of the operator(s) anticipated to be used; and (v) The name and signature of the applicant, whether he/she is the owner or the managing owner, his/her address, telephone and fax numbers, and, if applicable, the name, address, telephone and fax numbers of the agent or organization acting on behalf of the vessel. (5) Application for operator permit. An applicant for an operator permit must provide the following information to the Administrator, Southwest Region, allowing at least 45 days for processing: (i) The name, address, telephone and fax numbers of the applicant; (ii) The type and identification number(s) of any Federal, state, and local fishing licenses held by the applicant; (iii) The name of the vessel(s) on which the applicant anticipates serving as an operator; (iv) The date, location, and provider of training required under paragraph (c)(5) of this section for the operator permit; and (v) The applicant's signature or the signature of the applicant's representative. (6) Fees--(i) Vessel permit application fees. Payment of the permit application fee is required before NMFS will issue a permit. The Assistant Administrator may change the amount of this fee at any time if a different fee is determined in accordance with the NOAA Finance Handbook. The amount of the fee will be printed on the vessel permit application form provided by the Administrator, Southwest Region. (ii) Operator permit fee. There is no fee for the operator permit. The Assistant Administrator may require a fee at any time if a fee is determined in accordance with the NOAA Finance Handbook and specified by the Administrator, Southwest Region, on the application form. (iii) Observer placement fee. The observer placement fee supports the placement of observers on individual vessels, and maintenance of the observer program, as established by the IATTC or other approved observer program. (A) The owner or managing owner of a vessel for which a DML has been requested must submit the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, no later than September 15 of the year prior to the calendar year for which the DML was requested. Payment of the observer placement fee must be consistent with the fee for active status on the Vessel Register under Sec. 300.22(b)(4) of this title. (B) The owner or managing owner of a vessel for which a DML has not been requested, but that is listed on the Vessel Register, as defined in Sec. 300.21 of this title, must submit payment of the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, 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 observer placement fee must be consistent with the vessel's status, either active or inactive, on the Vessel Register in Sec. 300.22(b)(4) of this title. (C) The owner or managing owner of a purse seine vessel that is licensed under the South Pacific Tuna Treaty must submit the observer placement fee, as established by the IATTC or other approved observer program, to the Administrator, Southwest Region, prior to obtaining an observer and entering the ETP to fish. Consistent with Sec. 300.22(b)(1)(i) of this title, this class of purse seine vessels is not required to be listed on the Vessel Register under Sec. 300.22(b)(4) 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 observer placement fee must be consistent with the fee for active status on the Vessel Register under Sec. 300.22(b)(4) 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 to replace a vessel removed from active status on the Vessel Register under Sec. 300.22(b)(4) of this title during the year, must pay the observer placement [[Page 23]] fee associated with active status less the observer placement fee associated with inactive status that was already paid before NMFS will request the IATTC Secretariat change the status of the vessel from inactive to active. (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 Sec. 300.22(b)(4) of this title during the year, must pay the observer placement fee associated with active status before NMFS will request the IATTC Secretariat change the status of the vessel to active. (F) Payments received after the dates specified in paragraphs (b) (6) (iii)(A) or (B) of this section will be subject to a 10 percent surcharge. The Administrator, Southwest Region, will forward all observer placement fees described in this section to the IATTC or to the applicable organization approved by the Administrator, Southwest Region. (7) Application approval. The Administrator, Southwest Region, will determine the adequacy and completeness of an application and, upon determining that an application is adequate and complete, will approve that application and issue the appropriate permit, except for applicants having unpaid or overdue civil penalties, criminal fines, or other liabilities incurred in a legal proceeding. (8) Conditions applicable to all permits--(i) General conditions. Failure to comply with the provisions of a permit or with these regulations may lead to suspension, revocation, modification, or denial of a permit. The permit holder, vessel, vessel owner, operator, or master may be subject, jointly or severally, to the penalties provided for under the MMPA. Procedures governing permit sanctions and denials are found at subpart D of 15 CFR part 904. (ii) Observer placement. By obtaining a permit, the permit holder consents to the placement of an observer on the vessel during every trip involving operations in the ETP and agrees to payment of the fees for observer placement. No observer will be assigned to a vessel unless that vessel owner has submitted payment of observer fees to the Administrator, Southwest Region. The observers may be placed under an observer program of NMFS, IATTC, or another observer program approved by the Administrator, Southwest Region. (iii) Explosives. The use of explosive devices is prohibited during all tuna purse seine operations that involve marine mammals. (iv) Reporting requirements. (A) The vessel permit holder of each permitted vessel must notify the Administrator, Southwest Region or the IATTC contact designated by the Administrator, Southwest Region, at least 5 days in advance of the vessel's departure on a fishing trip to allow for observer placement on every trip. (B) The vessel permit holder must notify the Administrator, Southwest Region, or the IATTC contact designated by the Administrator, Southwest 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. By using a permit, the permit holder authorizes the release to NMFS and the IATTC of all data collected by observers aboard purse seine vessels during fishing trips under the IATTC observer program or another international observer program approved by the Administrator, Southwest Region. The permit holder must furnish the international observer program with all release forms required to authorize the observer data to be provided to NMFS and the IATTC. Data obtained under such releases will be used for the same purposes as would data collected directly by observers placed by NMFS and will be subject to the same standards of confidentiality. (9) Mortality and serious injury reports. The Administrator, Southwest Region, will provide to the public periodic status reports summarizing the estimated incidental dolphin mortality and serious injury by U.S. vessels of individual species and stocks. (c) Purse seining by vessels with Dolphin Mortality Limits (DMLs). In addition to the terms and conditions set forth in paragraph (b) of this section, any permit for a vessel to which a DML [[Page 24]] has been assigned under paragraph (c)(9) of this section and any operator permit when used on such a vessel are subject to the following terms and conditions: (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. Except as otherwise authorized by a specific permit, live marine mammals incidentally taken must be immediately returned to the ocean without further injury. The operator of a purse seine vessel must take every precaution to refrain from causing or permitting incidental mortality or serious injury of marine mammals. Live marine mammals may not be brailed, sacked up, or hoisted onto the deck during ortza retrieval. (3) Gear and equipment required for valid permit. A vessel possessing a vessel permit for purse seining involving the intentional taking of marine mammals may not engage in fishing operations involving the intentional deployment of the net on or encirclement of dolphins unless it is equipped with a dolphin safety panel in its purse seine, has the other required gear and equipment, and uses the required procedures. (i) Dolphin safety panel. The dolphin safety panel must be a minimum of 180 fathoms in length (as measured before installation), except that the minimum length of the panel in nets deeper than 18 strips must be determined in a ratio of 10 fathoms in length for each strip of net depth. It must be installed so as to protect the perimeter of the backdown area. The perimeter of the backdown area is the length of corkline that begins at the outboard end of the last bowbunch pulled and continues to at least two-thirds the distance from the backdown channel apex to the stern tiedown point. The dolphin safety panel must consist of small mesh webbing not to exceed 1 1/4 inches (3.18 centimeters (cm)) stretch mesh extending downward from the corkline and, if present, the base of the dolphin apron to a minimum depth equivalent to two strips of 100 meshes of 4 1/4 inches (10.80 cm) stretch mesh webbing. In addition, at least a 20-fathom length of corkline must be free from bunchlines at the apex of the backdown channel. (ii) Dolphin safety panel markers. Each end of the dolphin safety panel and dolphin apron, if present, must be identified with an easily distinguishable marker. (iii) Dolphin safety panel hand holds. Throughout the length of the corkline under which the dolphin safety panel and dolphin apron are located, hand hold openings must be secured so that they will not allow the insertion of a 1 3/8 inch (3.50 cm) diameter cylindrical-shaped object. (iv) Dolphin safety panel corkline hangings. Throughout the length of the corkline under which the dolphin safety panel and dolphin apron if present, are located, corkline hangings must be inspected by the vessel operator following each trip. Hangings found to have loosened to the extent that a cylindrical-shaped object with a 1 3/8 inch (3.50 cm) diameter can be inserted between the cork and corkline hangings, must be tightened so as not to allow the insertion of a cylindrical-shaped object with a 1 3/8 inch (3.50 cm) diameter. (v) Speedboats. A minimum of three speedboats in operating condition must be carried. All speedboats carried aboard purse seine vessels and in operating condition must be rigged with tow lines and towing bridles or towing posts. Speedboat hoisting bridles may not be substituted for towing bridles. (vi) Raft. A raft suitable to be used as a dolphin observation-and- rescue platform must be carried. (vii) Facemask and snorkel, or viewbox. At least two facemasks and snorkels or viewboxes must be carried. (viii) Lights. The vessel must be equipped with lights capable of producing a minimum of 140,000 lumens of output for use in darkness to ensure sufficient light to observe that procedures for dolphin release are carried out and to monitor incidental dolphin mortality. (4) Vessel inspection--(i) Annual. At least once during each calendar year, purse seine nets and other gear and equipment required under Sec. 216.24(c)(3) must be made available for inspection and for a trial set/net alignment by an authorized NMFS inspector or IATTC [[Page 25]] staff as specified by the Administrator, Southwest Region, in order to obtain a vessel permit. (ii) Reinspection. Purse seine nets and other gear and equipment required by these regulations must be made available for reinspection by an authorized NMFS inspector or IATTC staff as specified by the Administrator, Southwest Region. The vessel permit holder must notify the Administrator, Southwest Region, of any net modification at least 5 days prior to departure of the vessel in order to determine whether a reinspection or trial set/net alignment is required. (iii) Failure to pass inspection. Upon failure to pass an inspection or reinspection, a vessel may not engage in purse seining involving the intentional taking of marine mammals until the deficiencies in gear or equipment are corrected as required by NMFS. (5) Operator permit holder training requirements. An operator must maintain proficiency sufficient to perform the procedures required herein, and must attend and satisfactorily complete a formal training session approved by the Administrator, Southwest Region, in order to obtain his or her permit. At the training session, an attendee will be instructed on the relevant provisions and regulatory requirements of the MMPA and the IDCP, and the fishing gear and techniques that are required for reducing serious injury and mortality of dolphin incidental to purse seining for tuna. Operators who have received a written certificate of satisfactory completion of training and who possess a current or previous calendar year permit will not be required to attend additional formal training sessions unless there are substantial changes in the relevant provisions or implementing regulations of the MMPA or the IDCP, or in fishing gear and techniques. Additional training may be required for any operator who is found by the Administrator, Southwest Region, to lack proficiency in the required fishing procedures or familiarity with the relevant provisions or regulations of the MMPA or the IDCP. (6) Marine mammal release requirements. All operators fishing pursuant to paragraph (c) of this section must use the following procedures during all sets involving the incidental taking of marine mammals in association with the capture and landing of tuna. (i) Backdown procedure. Backdown must be performed following a purse seine set in which dolphins are captured in the course of catching tuna, and must be continued until it is no longer possible to remove live dolphins from the net by this procedure. At least one crewmember must be deployed during backdown to aid in the release of dolphins. Thereafter, other release procedures required will be continued so that all live dolphins are released prior to the initiation of the sack-up procedure. (ii) Prohibited use of sharp or pointed instrument. The use of a sharp or pointed instrument to remove any marine mammal from the net is prohibited. (iii) Sundown sets prohibited. On every set encircling dolphin, the backdown procedure must be completed no later than one-half hour after sundown, except as provided here. For the purpose of this section, sundown is defined as the time at which the upper edge of the sun disappears below the horizon or, if the view of the sun is obscured, the local time of sunset calculated from tables developed by the U.S. Naval Observatory or other authoritative source approved by the Administrator, Southwest Region. A sundown set is a set in which the backdown procedure has not been completed and rolling the net to sack-up has not begun within one-half hour after sundown. Should a set extend beyond one-half hour after sundown, the operator must use the required marine mammal release procedures including the use of the high intensity lighting system. In the event a sundown set occurs where the seine skiff was let go 90 or more minutes before sundown, and an earnest effort to rescue dolphins is made, the International Review Panel of the IDCP may recommend to the United States that in the view of the International Review Panel, prosecution by the United States is not recommended. Any such recommendation will be considered by the United States in evaluating the appropriateness of prosecution in a particular circumstance. (iv) Dolphin safety panel. During backdown, the dolphin safety panel [[Page 26]] must be positioned so that it protects the perimeter of the backdown area. The perimeter of the backdown area is the length of corkline that begins at the outboard end of the last bow bunch pulled and continues to at least two-thirds the distance from the backdown channel apex to the stern tiedown point. (7) Experimental fishing operations. The Administrator, Southwest Region, may authorize experimental fishing operations, consistent with the provisions of the IDCP, for the purpose of testing proposed improvements in fishing techniques and equipment that may reduce or eliminate dolphin mortality or serious injury, or do not require the encirclement of dolphins in the course of fishing operations. The Administrator, Southwest Region, may waive, as appropriate, any requirements of this section except DMLs and the obligation to carry an observer. (i) A vessel permit holder may apply for an experimental fishing operation waiver by submitting the following information to the Administrator, Southwest 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, Southwest Region, will acknowledge receipt of the application and, upon determining that it is complete, will publish a notice in the Federal Register summarizing the application, making the full application available for inspection and inviting comments for a minimum period of 30 days from the date of publication. (iii) The Administrator, Southwest 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, Southwest Region, and when all the terms and conditions of the permit are met. (v) The Administrator, Southwest 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. [Reserved] (9) Vessel permit holder dolphin mortality limits. For purposes of this paragraph, the term ``vessel permit holder'' includes both the holder of a current vessel permit and also the holder of a vessel permit for the following year. (i) By September 1 each year, a vessel permit holder desiring a DML for the following year must provide to the Administrator, Southwest 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 [[Page 27]] 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, Southwest 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, Southwest 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, Southwest 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, Southwest 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, Southwest 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) A vessel lost at sea, undergoing extensive repairs, operating in an ocean area other than the ETP, or for which other information indicates that vessel will no longer be conducting purse seine operations in the ETP for the remainder of the period covered by the DML will be determined to have left the fishery. (2) NMFS will make all reasonable efforts to determine the intentions of the vessel owner. The owner of any vessel that has been preliminarily determined to have left the fishery will be provided notice of such preliminary determination and given the opportunity to provide information on whether the vessel has left the fishery prior to NMFS making a final determination under 15 CFR part 904 and notifying the IATTC. (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. [[Page 28]] (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, Southwest 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 by the Administrator, Southwest Region, based upon the best available evidence, stating when any applicable per-stock per-year dolphin mortality limit has been reached or exceeded, or is expected to be reached in the near future. (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 by the Administrator, Southwest Region, based upon the best available evidence, that intentional sets on dolphins must cease because the total of the DMLs assigned to the U.S. fleet has been reached or exceeded, or is expected to be exceeded in the near future. (d) Purse seining by vessels without assigned DMLs. In addition to the requirements of paragraph (b) of this section, a vessel permit used for a trip not involving an assigned DML and the operator's permit when used on such a vessel are subject to the following terms and conditions: a permit holder may take marine mammals provided that such taking is an accidental occurrence in the course of normal commercial fishing operations and the vessel does not intentionally deploy its net on, or to encircle, dolphins; marine mammals taken incidental to such commercial fishing operations must be immediately returned to the environment where captured without further injury, using release procedures such as hand rescue, or aborting the set at the earliest effective opportunity; and the use of one or more rafts and facemasks or viewboxes to aid in the rescue of dolphins is recommended. (e) Observers--(1) The holder of a vessel permit must allow an observer duly authorized by the Administrator, Southwest Region, to accompany the vessel on all fishing trips in the ETP for the purpose of conducting research and observing operations, including collecting information that may be used in civil or criminal penalty proceedings, forfeiture actions, or permit sanctions. A vessel that fails to carry [[Page 29]] an observer in accordance with these requirements may not engage in fishing operations. (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. (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. (1)(i) It is illegal to import into the United States any fish, whether fresh, frozen, or otherwise prepared, if the fish have been caught with commercial fishing technology that results in the incidental kill or incidental serious injury of marine mammals in excess of that allowed under this part for U.S. fishermen, or as specified at paragraph (f)(6) of this section. (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 Sec. 216.3. (2) Imports requiring a Fisheries Certificate of Origin. Shipments of tuna, tuna [[Page 30]] products, and certain other fish products identified by the U.S. Harmonized Tariff Schedule (HTS) numbers listed in paragraphs (f)(2)(i), (f)(2)(ii) and (f)(2)(iii) of this section may not be imported into the United States unless a properly completed Fisheries Certificate of Origin (FCO), NOAA Form 370, is filed with the U.S. Customs Service at the time of importation. (i) HTS numbers requiring a Fisheries Certificate of Origin, subject to yellowfin tuna embargo. The following HTS numbers identify yellowfin tuna or yellowfin tuna products (other than fresh tuna) known to be imported into the United States. All shipments imported into the United States under these HTS numbers must be accompanied by an FCO. The scope of yellowfin tuna embargoes and procedures for attaining an affirmative finding are described under paragraphs (f)(6) and (f)(8) of this section, respectively. (A) Frozen:............................... 0303.42.0020.............................. Yellowfin tuna, whole, frozen 0303.42.0040.............................. Yellowfin tuna, eviscerated, head on, frozen 0303.42.0060.............................. Yellowfin tuna, other, frozen (B) Airtight Containers: (products containing Yellowfin). 1604.14.1010.............................. Tuna, non-specific, in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each 1604.14.1090.............................. Tuna, non-specific, in oil, in airtight containers, other 1604.14.2291.............................. Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, under quota 1604.14.2299.............................. Tuna, other than albacore, not in oil, in airtight containers, under quota 1604.14.3091.............................. Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, over quota 1604.14.3099.............................. Tuna, other than albacore, not in oil, in airtight containers, over quota (C) Loins: (Yellowfin).................... 1604.14.4000.............................. Tuna, not in airtight containers, not in oil, weighing with their contents over 6.8 kg 1604.14.5000.............................. Tuna, not in airtight containers, other (D) Other: (products containing Yellowfin) 0304.20.2066.............................. Other fish, fillets, skinned, in blocks weighing over 4.5 kg, frozen 0304.20.6096.............................. Other fish, fillets, frozen 1604.20.2500.............................. Balls and cakes, not in oil, in airtight containers, other 1604.20.3000.............................. Balls and cakes, other ------------------------------------------------------------------------ (ii) HTS numbers requiring a Fisheries Certificate of Origin, not subject to yellowfin tuna embargo. The following HTS numbers identify tuna or tuna products, (other than fresh tuna or yellowfin tuna identified in paragraph (f)(2)(i)) of this section, known to be imported into the United States. All shipments imported into the United States under these HTS numbers must be accompanied by an FCO. (A) Frozen:............................... 0303.41.0000.............................. Albacore or longfinned tunas, frozen 0303.43.0000.............................. Skipjack, frozen 0303.44.0000.............................. Bigeye, frozen 0303.45.0000.............................. Bluefin, frozen 0303.46.0000.............................. Bluefin Southern, frozen 0303.49.0100.............................. Other tuna, frozen (B) Airtight Containers: (Other than Yellowfin). 1604.14.1010.............................. Tuna, non-specific, in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each 1604.14.1090.............................. Tuna, non-specific, in oil, in airtight containers, other 1604.14.2251.............................. Tuna, albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, under quota 1604.14.2259.............................. Tuna, albacore, not in oil, in airtight containers, other, under quota 1604.14.2291.............................. Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, under quota 1604.14.2299.............................. Tuna, other than albacore, not in oil, in airtight containers, other, under quota 1604.14.3051.............................. Tuna, albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, over quota 1604.14.3059.............................. Tuna, albacore, not in oil, in airtight containers, other, over quota 1604.14.3091.............................. Tuna, other than albacore, not in oil, in foil or other flexible airtight containers weighing with their contents not more than 6.8 kg each, over quota 1604.14.3099.............................. Tuna, other than albacore, not in oil, in airtight containers, other, over quota (C) Loins: (Other than Yellowfin)......... 1604.14.4000.............................. Tuna, not in airtight containers, in bulk or in immediate containers weighing with their contents over 6.8 kg, in oil 1604.14.5000.............................. Tuna, not in airtight containers, other (D) Other: (only if the product contains tuna). 0304.20.2066.............................. Other fish, fillets, skinned, in blocks weighing over 4.5 kg, frozen 0304.20.6096.............................. Other fish, fillets, frozen 1604.20.2500.............................. Balls and cakes, not in oil, in airtight containers, other 1604.20.3000.............................. Balls and cakes, other ------------------------------------------------------------------------ [[Page 31]] (iii) Exports from driftnet nations only: HTS numbers requiring a Fisheries Certificate of Origin and official certification. The following HTS numbers identify categories of fish and shellfish, in addition to those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, known to have been harvested using a large-scale driftnet and imported into the United States. Shipments exported from a large- scale driftnet nation, as identified under paragraph (f)(7) of this section, and imported into the United States under any of the HTS numbers listed in paragraph (f)(2) of this section must be accompanied by an FCO and the official statement described in paragraph (f)(4)(xiii) of this section. (A) Frozen:............................... 0303.19.0012.............................. Salmon, chinook, frozen 0303.19.0022.............................. Salmon, chum, frozen 0303.19.0032.............................. Salmon, pink, frozen 0303.19.0052.............................. Salmon, coho, frozen 0303.19.0062.............................. Salmon, Pacific, non- specific, frozen 0303.21.0000.............................. Trout, frozen 0303.22.0000.............................. Salmon, Atlantic and Danube, frozen 0303.29.0000.............................. Salmonidae, other, frozen 0303.75.0010.............................. Dogfish, frozen 0303.75.0090.............................. Other sharks, frozen 0303.79.2041.............................. Swordfish steaks, frozen 0303.79.2049.............................. Swordfish, other, frozen 0303.79.4097.............................. Fish, other, frozen 0304.20.2066.............................. Fish, fillet, skinned, in blocks, frozen over 4.5 kg 0304.20.6008.............................. Salmonidae, salmon fillet, frozen 0304.20.6092.............................. Swordfish fillets, frozen 0304.20.6096.............................. Fish, fillet, other, frozen 0307.49.0010.............................. Squid, other, fillet, frozen (B) Canned:............................... 1604.11.2020.............................. Salmon, pink, canned in oil, in airtight containers 1604.11.2030.............................. Salmon, sockeye, canned in oil, in airtight containers 1604.11.2090.............................. Salmon, other, canned in oil, in airtight containers 1604.11.4010.............................. Salmon, chum, canned, not in oil 1604.11.4020.............................. Salmon, pink, canned, not in oil 1604.11.4030.............................. Salmon, sockeye, canned, not in oil 1604.11.4040.............................. Salmon, other, canned, not in oil 1604.11.4050.............................. Salmon, other, canned, not in oil 1604.19.2000.............................. Fish, other, in airtight containers, not in oil 1604.19.3000.............................. Fish, other, in airtight containers, in oil 1605.90.6050.............................. Squid, loligo, prepared/ preserved 1605.90.6055.............................. Squid, other, prepared/ preserved (C) Other:................................ 0305.30.6080.............................. Fish, other, fillet, dried/ salted/brine 0305.49.4040.............................. Fish, other, smoked 0305.59.2000.............................. Shark fins, dried 0305.59.4000.............................. Fish, other, dried 0305.69.4000.............................. Salmon, other, salted (or in brine) 0305.69.5000.............................. Fish, other, salted (or in brine), in immediate containers, not over 6.8 kg 0305.69.6000.............................. Fish, other, salted (or in brine) 0307.49.0050.............................. Squid, other, frozen/dried/ salted/brine 0307.49.0060.............................. Squid, other, & cuttle fish frozen/dried/salted/brine ------------------------------------------------------------------------ (3) Disposition of Fisheries Certificates of Origin. The FCO described in paragraph (f)(4) of this section may be obtained from the Administrator, Southwest Region, or downloaded from the Internet at http://swr.nmfs.noaa.gov/noaa370.htm. (i) A properly completed FCO and its attached certificates, if applicable, must accompany the required U.S. Customs entry documents that are filed at the time of import. (ii) FCOs and associated certifications, if any, that accompany imported shipments of tuna must be submitted by the importer of record to the Tuna Tracking and Verification Program, Southwest Region, within 30 days of the shipment's entry into the commerce of the United States. FCOs submitted via mail should be sent to Tuna Tracking and Verification Program, Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469. Copies of the documents may be submitted electronically using a secure file transfer protocol (FTP) site. Importers of record interested in submitting FCOs and associated certifications via FTP may contact a representative of the Tuna Tracking and Verification Program at the following email address: SWRTuna.Track@noaa.gov. The Tuna Tracking and Verification Program will facilitate secure transfer and protection of certifications by assigning a separate electronic folder for each importer. Access to the electronic folder will require a user identification and password. The Tuna Tracking and Verification Program will assign each importer a unique user identification and password. Safeguarding the confidentiality of the user identification and password is the responsibility of the importer to whom they are assigned. Copies of the documents may also be submitted via mail either on compact disc or as hard copies. All electronic submissions, whether via FTP or on compact disc, must be in either Adobe Portable Document Format (PDF) or as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or Corel WordPerfect file. (iii) FCOs that accompany imported shipments of tuna destined for further processing in the United States must [[Page 32]] be endorsed at each change in ownership and submitted to the Administrator, Southwest Region, by the last endorser when all required endorsements are completed. (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, Southwest Region. (4) Contents of Fisheries Certificate of Origin. An FCO, certified to be accurate by the exporter(s) of the accompanying shipment, must include the following information: (i) Customs 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, 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, trawl, pole 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 if required; (xiii) For shipments harvested 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 harvesting nation, certifying that the fish or fish products were harvested by a method other than large-scale driftnet; and (xiv) Each additional 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. Tuna or tuna products sold in or exported from the United States that include on the label the term ``dolphin- safe'' or any other term or symbol that claims or suggests the tuna were harvested in a manner not injurious to dolphins are subject to the requirements of subpart H of this part (Sec. 216.90 et seq.). (6) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin tuna or products of yellowfin tuna harvested using a purse seine in the ETP identified by an HTS number listed in paragraph (f)(2)(i) of this section may not be imported into the United States if such tuna or tuna products were: (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. A shipment containing fish or fish products identified by an HTS number listed in paragraph (f)(2) of this section may not be imported into the United States if it is harvested by a large-scale driftnet, or [[Page 33]] if it is exported from or harvested on the high seas by any nation determined by the Assistant Administrator to be engaged in large-scale driftnet fishing, unless a government official of the large-scale driftnet nation completes, signs and dates the High Seas Driftnet section of the FCO certifying that the fish or fish products were harvested by a method other than large-scale driftnet. (iii) Pelly certification. After 6 months of an embargo being in place against a nation under this section, the Secretary will certify that nation under section 8(a) of the Fishermen's Protective Act (22 U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will terminate the certification under Section 8(d) of that Act (22 U.S.C. 1978(d)). (iv) Coordination. The Assistant Administrator will promptly advise the Department of State and the Department of Homeland Security of embargo decisions, actions, and finding determinations. (7) Large-scale driftnet nation: determination. Based upon the best information available, the Assistant Administrator will determine which nations have registered vessels that engage in fishing using large-scale driftnets. Such determinations will be published in the Federal Register. A responsible government official of any such nation may certify to the Assistant Administrator that none of the nation's vessels use large-scale driftnets. Upon receipt of the certification, the Assistant Administrator may find, and publish such finding in the Federal Register, that none of that nation's vessels engage in fishing with large-scale driftnets. (8) Affirmative finding procedure for nations harvesting yellowfin tuna using a purse seine in the ETP. (i) The Assistant Administrator will determine, on an annual basis, whether to make an affirmative finding based upon documentary evidence provided by the government of the harvesting nation or by the IDCP and the IATTC, and will publish the finding in the Federal Register. A finding will remain vali