50 CFR § 216.21-216.27 - Regulations governing the taking and importing of marine mammals - General Exceptions

22 50 CFR Ch. II (10–1–22 Edition) § 216.21 86 FR 53841, Sept. 28, 2021] Subpart C—General Exceptions § 216.21 Actions permitted by inter national 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 imple menting the same relating to the tak ing or importation of marine mammals or marine mammal products, which was existing and in force prior to De cember 21, 1972, and to which the United States was a party. Specifi cally, the regulations in subpart B of this part and the provisions of the MMPA shall not apply to activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals signed at Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 1151 through 1187, as in each case, from time to time amended. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994] § 216.22 Taking by State or local gov ernment officials. (a) A State or local government offi cial 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 man ner; (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 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00032 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31 E R 28 S E 21 .0 03 < /G P H > sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 23 National Marine Fisheries Service/NOAA, Commerce ยง 216.22 the course of such taking, to its nat ural habitat. In addition, any such offi cial 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 prac ticable under the circumstances shall be taken by any such employee or offi cial 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 car cass of a marine mammal taken in ac cordance with this subsection whether the animal is dead at the time of tak ing 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, in cluding in cases where the animal has been retained in captivity, a descrip tion of the place and means of confine ment 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 sub sequent transfer. (1) Salvage. In the performance of of ficial duties, a state or local govern ment employee; an employee of the Na tional 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 au thorized 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 dur ing 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 mainte nance in a properly curated, profes sionally accredited scientific collec tion. (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 reg istration must include: (i) The name, address, and any offi cial position of the individual engaged in the taking and salvage; (ii) A description of the marine mam mal 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 Adminis trator. (3) Identification and curation. The Re gional Director will assign a single unique number to each carcass, and the parts thereof, that are salvaged under the provisions of this section. The per son who salvaged the specimen may designate the number to be assigned. After this number is assigned, the per son who salvaged the specimen must permanently mark that number on each separate hard part of that speci men 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 profes sional standards. (4) No sale or commercial trade. No per son may sell or trade for commercial purposes any marine mammal speci men salvaged under this section. (5) Transfer without prior authoriza tion. A person who salvages a marine mammal specimen under this section may transfer that specimen to another person if: (i) The person transferring the ma rine mammal specimen does not re ceive remuneration for the specimen; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00033 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 24 50 CFR Ch. II (10–1–22 Edition) § 216.23 (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 jurisdic tion 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 author ization under paragraph (c)(6) of this section; (iii) The marine mammal specimen is transferred for the purpose of scientific research, for the purpose of mainte nance in a properly curated, profes sionally accredited scientific collec tion, or for educational purposes; (iv) The unique number assigned by the National Marine Fisheries Service is on, marked on, or affixed to the ma rine mammal specimen or container; and (v) Except as provided under para graph (c)(8) of this section, the person transferring the marine mammal speci men notifies the appropriate Regional Office of the National Marine Fisheries Service of the transfer, including noti fication 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 para graphs (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 provi sions 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 authoriza tion for the transfer. The Regional Di rector 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 un less the Assistant Administrator grants prior written authorization for the transfer. The Assistant Adminis trator 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 notifi cation or prior authorization. A person may transfer a marine mammal speci men salvaged under this section with out the notification required in para graph (c)(5)(v) of this section or the prior authorization required in para graph (c)(6) of this section if: (i) The transfer is a temporary trans fer to a laboratory or research facility within the United States so that anal yses can be performed for the person salvaging the specimen; or (ii) The transfer is a loan of not more than 1 year to another professionally accredited scientific collection within the United States. [39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991] § 216.23 Native exceptions. (a) Taking. Notwithstanding the pro hibitions of subpart B of this part 216, but subject to the restrictions con tained in this section, any Indian, Aleut, or Eskimo who resides on the coast of the North Pacific Ocean or the Arctic Ocean may take any marine mammal without a permit, if such tak ing is: (1) By Alaskan Natives who reside in Alaska for subsistence, or (2) For purposes of creating and sell ing authentic native articles of handi craft and clothing, and (3) In each case, not accomplished in a wasteful manner. (b) Restrictions. (1) No marine mam mal taken for subsistence may be sold or otherwise transferred to any person other than an Alaskan Native or deliv ered, carried, transported, or shipped in interstate or foreign commerce, unless: (i) It is being sent by an Alaskan Na tive directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be re turned directly or through a registered agent to the Alaskan Native; or (ii) It is sold or transferred to a reg istered agent in Alaska for resale or transfer to an Alaskan Native; or VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00034 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 25 National Marine Fisheries Service/NOAA, Commerce § 216.23 (iii) It is an edible portion and it is sold in an Alaskan Native village or town. (2) No marine mammal taken for pur poses of creating and selling authentic native articles of handicraft and cloth ing may be sold or otherwise trans ferred to any person other than an In dian, 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 reg istered under paragraph (c) of this sec tion 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 reg istered 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 wish es to act as an agent, within the juris diction of the United States may apply to the Director, National Marine Fish eries Service, U.S. Department of Com merce, Washington, DC 20235, for reg istration as a tannery or an agent which may possess and process marine mammal products for Indians, Aleuts, or Eskimos. The application shall in clude the following information: (i) The name and address of the appli cant; (ii) A description of the applicant’s procedures for receiving, storing, proc essing, and shipping materials; (iii) A proposal for a system of book keeping and/or inventory segregation by which the applicant could maintain accurate records of marine mammals received from Indians, Aleuts, or Eski mos 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 infor mation is complete, true and correct to the best of my knowledge and belief. I under stand that this information is submitted for the purpose of obtaining the benefit of an ex ception under the Marine Mammal Protec tion 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 Protec tion 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 re quirement for information, or require any elaboration or further information deemed necessary. The registration of a tannery or other agent shall be sub ject to such conditions as the Sec retary prescribes, which may include, but are not limited to, provisions re garding records, inventory segregation, reports, and inspection. The Secretary may charge a reasonable fee for proc essing such applications, including an appropriate apportionment of overhead and administrative expenses of the De partment of Commerce. (d) Notwithstanding the preceding provisions of this section, whenever, under the MMPA, the Secretary deter mines any species of stock of marine mammals to be depleted, he may pre scribe regulations pursuant to section 103 of the MMPA upon the taking of such marine animals by any Indian, Aleut, or Eskimo and, after promulga tion 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 addi tion 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 whal ing captain; or the individual operating the boat at the time the whale is har vested or transported to the place of processing. (iii) Cook Inlet means all waters of Cook Inlet north of 59° North latitude, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00035 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 26 50 CFR Ch. II (10–1–22 Edition) § 216.23 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 land ing 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 cap tain or vessel operator and delivered to NMFS at the Anchorage Field Office, 222 West 7th Avenue, Anchorage, Alas ka 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 in vited to report on any other observa tions concerning the animal or cir cumstance of the harvest. (ii) Data collected pursuant to para graph (e) of this section will be re ported on forms obtained from the An chorage Field Office. These data will be maintained in the NMFS Alaska Re gional Office in Juneau, Alaska, where such data will be available for public review. (4) No person may falsify any infor mation required to be set forth on the reporting form as required by para graph (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 manage ment of subsistence harvest. Subject to the provisions of 16 U.S.C. 1371(b) and any further limitations set forth in § 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. Au thentic Native articles of handicraft and clothing made from nonedible by products of beluga whales taken in ac cordance 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 cus tomary 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 prohib ited. (iii) Season. All takings of beluga whales authorized under § 216.23(f) shall occur no earlier than July 1 of each year. (iv) Taking during 2001–2004. The har vest of Cook Inlet beluga whales is re stricted 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-manage ment agreement(s). (B) Strike allocations. Four strikes, not to exceed one per year, are allo cated to the Native Village of Tyonek. The remaining two strikes will be allo cated over the 4–year period through co-management agreement with other Cook Inlet community hunters, with no more than one such strike being al located during every other year. (C) Emergency provisions. Takings of beluga whales authorized under § 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 en tanglements but excluding all legally VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00036 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 27 National Marine Fisheries Service/NOAA, Commerce § 216.23 harvested whales) and all documented mortality resulting from unknown or natural causes that occur above nor mal levels, considered for the purposes of this provision to be twelve beluga whales per year. The level of unusual mortalities shall be calculated by doc umenting mortality for the calendar year and subtracting twelve. The sum of this result and the carry over of un usual mortality from any previous year from which the population has not re covered is the level of unusual mortali ties for the current year. If in any year the number of unusual mortalities ex ceeds six whales, no strikes will be al lowed in that year or in subsequent years until the population has recov ered from those mortalities through foregone future harvests and natural recruitment. (v) Taking during 2008 and subsequent years. (A) Co-management agreements pursuant to paragraph (f)(1) of this sec tion may be established for 5–year in tervals beginning in 2008. Agreements must include specific provisions re garding the number and allocation of strikes, hunting practices to promote consistency with limitations in para graph (f)(2)(ii) of this section, and to improve efficiency of the harvest, miti gating measures, and enforcement. Agreements may include provisions re garding the sex composition of the beluga harvest. (B) Strike/harvest levels for each 5– year planning interval beginning in 2008 will be determined by the recovery of this stock as measured by the aver age abundance in the prior 5–year in terval and the best estimate of the pop ulation growth rate using information obtained in the 10 years prior to each 5–year interval. Criteria for catego rizing growth rates are presented below as an algorithm using the estimated abundance, the distribution statistics for growth rates, and the date. Harvest levels are subject to the Expected Mor tality Limit. The established strike levels are presented in the Harvest Table and the following algorithm will be used to determine harvest levels for each 5–year period beginning in 2008. (1) NMFS will calculate the average stock abundance over the previous 5– year period. (2) NMFS will calculate a population growth rates from abundance estimates for the most recent 10–year period prior to the next 5–year period. (3) Using the abundance and growth information obtained in accordance with paragraphs (f)(2)(v)(B)(1) and (f)(2)(v)(B)(2), NMFS will calculate the probabilities that the growth rate within the population would be less than 1 percent, less than 2 percent, or greater than 3 percent. NMFS will then use paragraphs (f)(2)(v)(B)(3(i)) and (f)(2)(v)(B)(3)(vi) of this section to se lect the proper cell from the Harvest Table to determine the harvest levels for the next 5–year interval. (i) Is the average stock abundance over the previous 5–year period less than 350 beluga whales? If yes, the Har vest Table provides that the harvest is zero during the next 5–year period. If no, go to (f)(2)(v)(B)(3)(ii) of this sec tion. (ii) Is the current year 2035 or later and is there more than a 20 percent probability the growth rate is less than 1 percent? If yes, the harvest is zero during the next 5–year period. If no, go to paragraph (f)(2)(v)(B)(3)(iii) of this section. (iii) Is the current year between 2020 and 2034 and there is more than a 20 percent probability the growth rate is less than 1 percent? If yes, the harvest is three whales during the next 5–year period. If no, go to paragraph (f)(2)(v)(B)(3)(iv) of this section. (iv) Is the current year 2015 or later and is there more than a 25 percent probability the growth rate is less than 2 percent? If yes, go to the harvest table using the ‘‘Low’’ growth rate col umn. If no, go to paragraph (f)(2)(v)(B)(3)(vi)) of this section. (v) Is the current year prior to 2015 and is there more than a 75 percent probability the growth rate is less than 2 percent? If yes, go to the harvest table using the ‘‘Low’’ growth rate col umn. If no, go to paragraph (f)(2)(v)(B)(3)(vi) of this section. (vi) Is there more than a 25–percent probability the growth rate is more than 3 percent? If yes, go to the harvest table using the ‘‘High’’ growth rate col umn. If no, go to the harvest table using the ‘‘Intermediate’’ growth rate column. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00037 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 28 50 CFR Ch. II (10–1–22 Edition) § 216.24 HARVEST TABLE 5–year population aver ages ‘‘High’’ growth rate ‘‘Intermediate’’ growth rate ‘‘Low’’ growth rate Expected Mortality Limit Less than 350 ................. 0 0 0 350–399 .......................... 8 strikes in 5 years 5 strikes in 5 years 5 strikes in 5 years 21 400–449 .......................... 9 strikes in 5 years 8 strikes in 5 years 5 strikes in 5 years 24 450–499 .......................... 10 strikes in 5 years 8 strikes in 5 years 5 strikes in 5 years 27 500–524 .......................... 14 strikes in 5 years 9 strikes in 5 years 5 strikes in 5 years 30 525–549 .......................... 16 strikes in 5 years 10 strikes in 5 years 5 strikes in 5 years 32 550–574 .......................... 20 strikes in 5 years 15 strikes in 5 years 5 strikes in 5 years 33 575–599 .......................... 22 strikes in 5 years 16 strikes in 5 years 5 strikes in 5 years 35 600–624 .......................... 24 strikes in 5 years 17 strikes in 5 years 6 strikes in 5 years 36 625–649 .......................... 26 strikes in 5 years 18 strikes in 5 years 6 strikes in 5 years 38 650–699 .......................... 28 strikes in 5 years 19 strikes in 5 years 7 strikes in 5 years 39 700–779 .......................... 32 strikes in 5 years 20 strikes in 5 years 7 strikes in 5 years 42 780 + ............................... Consult with co-managers to expand harvest levels while allowing for the population to grow (C) At the beginning of each 5–year period, an Expected Mortality Limit is determined from the Harvest Table using the 5–year average abundance. During the course of each calendar year, the number of beach casts car casses and carcasses found floating ei ther reported to NMFS or observed by NMFS personnel will be the number of mortalities for that year. If at the end of each calendar year this number ex ceeds the Expected Mortality Limit, then an unusual mortality event has occurred. The Estimated Excess Mor talities will be calculated as twice the number of reported dead whales above the Expected Mortality Limit. The har vest will then be adjusted as follows: (1) The harvest level for the remain ing years of the current 5–year period will be recalculated by reducing the 5– year average abundance from the pre vious 5–year period by the Estimated Excess Mortalities. The revised abun dance estimate would then be used in the harvest table for the remaining years and the harvest adjusted accord ingly. (2) For the subsequent 5–year period, for the purpose of calculating the 5– year average, the Estimated Excess Mortalities would be subtracted from the abundance estimates of the year of the excess mortality event so that the average would reflect the loss to the population. This average would then be used in the table to set the harvest level. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, 1999; 69 FR 17980, Apr. 6, 2004; 73 FR 60985, Oct. 15, 2008] § 216.24 Taking and related acts in commercial fishing operations in cluding tuna purse seine vessels in the eastern tropical Pacific Ocean. (a)(1) No marine mammal may be taken in the course of a commercial fishing operation by a U.S. purse seine fishing vessel in the ETP unless the taking constitutes an incidental catch as defined in § 216.3, and vessel and op erator 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 in tentionally deploy a net on or to encir cle 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) car rying capacity that does not have a valid permit obtained under these regu lations 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 sub ject to the jurisdiction of the United States to receive, purchase, or possess VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00038 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 29 National Marine Fisheries Service/NOAA, Commerce § 216.24 tuna caught, possessed, or landed in violation of paragraph (a)(2)(ii) of this section. (iv) It is unlawful for any person sub ject 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 sub ject 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 Agree ment on the IDCP and/or these regula tions identified by the International Review Panel will be considered for po tential enforcement action by NMFS. (3) Upon written request made in ad vance of entering the ETP, the limita tions in paragraphs (a)(2)(ii) and (e)(1) of this section may be waived by the Administrator, West Coast Region, for the purpose of allowing transit through the ETP. The waiver will provide, in writing, the terms and conditions under which the vessel must operate, including a requirement to report to the Administrator, West Coast Region, the vessel’s date of exit from or subse quent 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 para graph (b) of this section. This permit is not transferable and must be renewed annually. If a vessel permit holder sur renders his/her permit to the Adminis trator, West Coast 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 fish ing operations (hereinafter referred to as the operator) on a U.S. purse seine fishing vessel engaged in commercial fishing operations under a vessel per mit must possess a valid operator per mit issued under paragraph (b) of this section. Such permits are not transfer able and must be renewed annually. To receive a permit, the operator must have satisfactorily completed all re quired 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 ves sel permit issued pursuant to para graph (b)(1) of this section must be on board the vessel while engaged in fish ing operations, and a valid operator permit issued pursuant to paragraph (b)(2) of this section must be in the pos session of the operator to whom it was issued. Permits must be shown upon re quest to NMFS enforcement agents, U.S. Coast Guard officers, or des ignated 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 ex pires 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 dis play it on board the vessel until the vessel returns to port. (4) Application for vessel permit. ETP tuna purse seine vessel permit applica tion forms and instructions for their completion are available from NMFS. To apply for an ETP vessel permit, a vessel owner or managing owner must complete, sign, and submit the appro priate form via fax to (562) 980–4047, by email to wcr.hms@noaa.gov, or through an online permit system, allowing at least 15 days for processing. To submit an ETP vessel permit application on line, a request must first be made to wcr.hms@noaa.gov, and NMFS will give instructions about whether and how an online application can be made. To re quest that a vessel in excess of 400 st (362.8 mt) carrying capacity be cat egorized as active on the Vessel Reg ister under § 300.22(b)(4)(ii) of this title in the following calendar year, the owner or managing owner must submit the vessel permit application, payment of the vessel permit application fee, and payment of the vessel assessment VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00039 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 30 50 CFR Ch. II (10–1–22 Edition) § 216.24 fee no later than September 15 for ves sels for which a DML is requested for the following year, and no later than November 30 for vessels for which a DML is not requested for the following year. (5) Application for operator permit. An applicant for an operator permit must complete, sign, and submit the appro priate form obtained from NMFS and submit payment of the permit applica tion fee to the Administrator, West Coast Region, allowing at least 45 days for processing. Application forms and instructions for their completion are available from NMFS. (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 deter mined in accordance with the NOAA Finance Handbook. The amount of the fee will be printed on the vessel permit application form provided by the Ad ministrator, West Coast Region. (ii) Operator permit fee. The Assistant Administrator may require a fee to be submitted with an application for an operator permit. The level of such a fee shall be determined in accordance with the NOAA Finance Handbook and spec ified by the Administrator, West Coast Region, on the application form. (iii) Vessel assessment fee. The vessel assessment fee supports the placement of observers on individual tuna purse seine vessels, and maintenance of the observer program, as established by the IATTC or other approved observer pro gram. (A) The owner or managing owner of a purse seine vessel for which a DML has been requested must submit the vessel assessment fee to the IATTC, no later than September 15 of the year prior to the calendar year for which the DML is requested. Payment of the vessel assessment fee must be con sistent with the fee for active status on the Vessel Register under § 300.22(b)(4) of this title. (B) The owner or managing owner of a purse seine vessel for which active or inactive status on the Vessel Register, as defined in § 300.21 of this title, has been requested, but for which a DML has not been requested, must submit payment of the vessel assessment fee to the IATTC, no later than November 30 of the year prior to the calendar year in which the vessel will be listed on the Vessel Register. Payment of the vessel assessment fee is required only if the vessel is listed as active and is re quired to carry an observer, or if the vessel is listed as inactive and exceeds 400 st (362.8 mt) in carrying capacity. Payment of the vessel assessment fee must be consistent with the vessel’s status, either active or inactive, on the Vessel Register in § 300.22(b)(4) of this title. (C) The owner or managing owner of a purse seine vessel that is permitted and authorized under an alternative international tuna purse seine fisheries management regime in the Pacific Ocean must submit the vessel assess ment fee to the IATTC, prior to obtain ing an observer and entering the ETP to fish. Consistent with § 300.22(b)(1) of this title, this class of purse seine ves sels is not required to be listed on the Vessel Register under § 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 vessel assessment fee must be consistent with the fee for active status on the Vessel Register under § 300.22(b)(4)(ii) of this title. (D) The owner or managing owner of a purse seine vessel listed as inactive on the Vessel Register at the beginning of the calendar year and who requests active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the vessel assess ment fee associated with active status, less the vessel assessment fee associ ated with inactive status that was al ready paid, before NMFS will request the IATTC Director change the status of the vessel from inactive to active. Payment of the vessel assessment fee is required only if the vessel is required to carry an observer. (E) The owner or managing owner of a purse seine vessel not listed on the Vessel Register at the beginning of the calendar year and who requests to re place a vessel removed from active sta tus on the Vessel Register under § 300.22(b)(4) of this title during the year, must pay the vessel assessment fee associated with active status only VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00040 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 31 National Marine Fisheries Service/NOAA, Commerce § 216.24 if the vessel is required to carry an ob server, before NMFS will request the IATTC Director change the status of the vessel to active. (F) Payments will be subject to a 10 percent surcharge if received under paragraph (b)(6)(iii)(E) of this section for vessels that were listed as active on the Vessel Register in the calendar year prior to the year for which active status was requested; or if received after the dates specified in paragraph (b)(6)(iii)(A) or (B) of this section for vessels for which active status is re quested if the vessel was listed as ac tive during the year the request was made. Payments will not be subject to a 10 percent surcharge if received under paragraph (b)(6)(iii)(C) or (D) of this section, or if received under paragraph (b)(6)(iii)(E) of this section for vessels that were not listed as active on the Vessel Register in the calendar year prior to the year for which active sta tus was requested. Payments will also not be subject to a 10 percent surcharge if received after the date specified in paragraph (b)(6)(iii)(B) of this section for vessels for which inactive status is requested, or for vessels for which ac tive status is requested if the vessel was not listed as active during the year the request was made. Payment of all vessel assessment fees described in this section must be made to the IATTC. (7) Application approval. The Adminis trator, West Coast Region, will deter mine 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, ex cept for applicants having unpaid or overdue civil penalties, criminal fines, or other liabilities incurred in a legal proceeding. (8) Conditions applicable to all per mits—(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 hold er, vessel, vessel owner, operator, or master may be subject, jointly or sev erally, to the penalties provided for under the MMPA. Procedures gov erning 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 oper ations in the ETP and agrees to pay ment of the fees for observer place ment. No observer will be assigned to a vessel unless that vessel owner has sub mitted payment of observer fees to the Administrator, West Coast Region. The observers may be placed under an ob server program of NMFS, IATTC, or another observer program approved by the Administrator, West Coast Region. (iii) Explosives. The use of explosive devices is prohibited during all tuna purse seine operations that involve ma rine mammals. (iv) Reporting requirements. (A) The vessel permit holder of each permitted vessel must notify the Administrator, West Coast Region, or the IATTC con tact designated by the Administrator, West Coast Region, at least 5 days in advance of the vessel’s departure on a fishing trip to allow for observer place ment on every trip. If the vessel permit holder would like to use an IATTC and Western and Central Pacific Fisheries Commission (WCPFC) cross-endorsed observer when fishing in the IATTC Convention Area, the notification must also include a request for the place ment of a cross-endorsed observer pur suant to the Memorandum of Coopera tion between the IATTC and WCPFC. (B) The vessel permit holder must no tify the Administrator, West Coast Re gion, or the IATTC contact designated by the Administrator, West Coast Re gion, 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, noti fication must be made within 72 hours of the change. (v) Data release. By using a permit, the permit holder authorizes the re lease 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 pro gram approved by the Administrator, West Coast Region. The permit holder must furnish the international ob server program with all release forms required to authorize the observer data to be provided to NMFS and the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00041 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 32 50 CFR Ch. II (10–1–22 Edition) § 216.24 IATTC. Data obtained under such re leases will be used for the same pur poses 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, West Coast Region, will provide to the public periodic sta tus reports summarizing the estimated incidental dolphin mortality and seri ous injury by U.S. vessels of individual species and stocks. (c) Purse seining by vessels with Dol phin Mortality Limits (DMLs). In addi tion to the terms and conditions set forth in paragraph (b) of this section, any permit for a vessel to which a DML 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 con ditions: (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 mam mals. Except as otherwise authorized by a specific permit, live marine mam mals incidentally taken must be imme diately returned to the ocean without further injury. The operator of a purse seine vessel must take every pre caution to refrain from causing or per mitting incidental mortality or serious injury of marine mammals. Live ma rine 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 ves sel permit for purse seining involving the intentional taking of marine mam mals may not engage in fishing oper ations involving the intentional de ployment 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 equip ment, and uses the required proce dures. (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 be gins 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 web bing not to exceed 11⁄4 inches (3.18 cen timeters (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 41⁄4 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 dol phin apron, if present, must be identi fied 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 13⁄8 inch (3.50 cm) diameter cylindrical shaped object. (iv) Dolphin safety panel corkline hangings. Throughout the length of the corkline under which the dolphin safe ty panel and dolphin apron if present, are located, corkline hangings must be inspected by the vessel operator fol lowing each trip. Hangings found to have loosened to the extent that a cy lindrical-shaped object with a 13⁄8 inch (3.50 cm) diameter can be inserted be tween the cork and corkline hangings, must be tightened so as not to allow the insertion of a cylindrical-shaped object with a 13⁄8 inch (3.50 cm) diame ter. (v) Speedboats. A minimum of three speedboats in operating condition must be carried. All speedboats carried aboard purse seine vessels and in oper ating 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 plat form must be carried. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00042 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 33 National Marine Fisheries Service/NOAA, Commerce § 216.24 (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 long-range, high-inten sity floodlights with a sodium lamp of at least 1000 watts, or a multivapour lamp of at least 1500 watts, for use in darkness to ensure sufficient light to observe that procedures for dolphin re lease are carried out and to monitor in cidental dolphin mortality. (4) Vessel inspection—(i) Twice per year. At least twice during each cal endar year, purse seine nets and other gear and equipment required under § 216.24(c)(3) must be made available for inspection and for a trial set/net align ment by an authorized NMFS inspector or IATTC staff as specified by the Ad ministrator, West Coast Region, in order to obtain a vessel permit. The first such inspection shall be carried out before the vessel’s request for a DML is submitted to the IATTC. The second such inspection shall be carried out before notification of any realloca tion of DMLs for vessels with full-year DMLs or during the last quarter of the year for vessels with second-semester DMLs. (ii) Reinspection. Purse seine nets and other gear and equipment required by these regulations must be made avail able for reinspection by an authorized NMFS inspector or IATTC staff as specified by the Administrator, West Coast Region. The vessel permit holder must notify the Administrator, West Coast 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 rein spection, 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 re quirements. 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, West Coast Region, in order to obtain his or her permit. At the training session, an attendee will be instructed on the relevant provi sions and regulatory requirements of the MMPA and the IDCP, and the fish ing gear and techniques that are re quired 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 cal endar 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, West Coast Region, to lack proficiency in the required fishing procedures or fa miliarity with the relevant provisions or regulations of the MMPA or the IDCP. (6) Marine mammal release require ments. All operators fishing pursuant to paragraph (c) of this section must use the following procedures during all sets involving the incidental taking of ma rine 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 cap tured 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 de ployed during backdown to aid in the release of dolphins. Thereafter, other release procedures required will be con tinued so that all live dolphins are re leased prior to the initiation of the sack-up procedure. (ii) Prohibited use of sharp or pointed instrument. The use of a sharp or point ed 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, ex cept 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 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00043 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 34 50 CFR Ch. II (10–1–22 Edition) § 216.24 local time of sunset calculated from ta bles developed by the U.S. Naval Ob servatory or other authoritative source approved by the Administrator, West Coast 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 ex tend beyond one-half hour after sun down, the operator must use the re quired marine mammal release proce dures including the use of the high in tensity lighting system. In the event a sundown set occurs where the seine skiff was let go 90 or more minutes be fore sundown, and an earnest effort to rescue dolphins is made, the Inter national 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 con sidered by the United States in evalu ating the appropriateness of prosecu tion in a particular circumstance. (iv) Dolphin safety panel. During backdown, the dolphin safety panel 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, West Coast Region, may authorize experimental fishing op erations, consistent with the provi sions of the IDCP, for the purpose of testing proposed improvements in fish ing techniques and equipment that may reduce or eliminate dolphin mor tality or serious injury, or do not re quire the encirclement of dolphins in the course of fishing operations. The Administrator, West Coast Region, may waive, as appropriate, any re quirements 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 in formation to the Administrator, West Coast Region, no less than 90 days be fore the date the proposed operation is intended to begin: (A) The name(s) of the vessel(s) and the vessel permit holder(s) to partici pate; (B) A statement of the specific vessel gear and equipment or procedural re quirement to be exempted and why such an exemption is necessary to con duct the experiment; (C) A description of how the proposed modification to the gear and equip ment or procedures is expected to re duce incidental mortality or serious in jury of marine mammals; (D) A description of the applicability of this modification to other purse seine vessels; (E) The planned design, time, dura tion, and general area of the experi mental operation; (F) The name(s) of the permitted op erator(s) of the vessel(s) during the ex periment; (G) A statement of the qualifications of the individual or company doing the analysis of the research; and (H) Signature of the permitted oper ator or of the operator’s representa tive. (ii) The Administrator, West Coast Region, will acknowledge receipt of the application and, upon determining that it is complete, will publish a notice in the FEDERAL REGISTER summarizing the application, making the full appli cation available for inspection and in viting comments for a minimum period of 30 days from the date of publication. (iii) The Administrator, West Coast Region, after considering the informa tion submitted in the application iden tified in paragraph (c)(7)(i) of this sec tion and the comments received, will either issue a waiver to conduct the ex periment that includes restrictions or conditions deemed appropriate, or deny the application, giving the reasons for denial. (iv) A waiver for an experimental fishing operation will be valid only for the vessels and operators named in the permit, for the time period and areas specified, for trips carrying an observer designated by the Administrator, West Coast Region, and when all the terms and conditions of the permit are met. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00044 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 35 National Marine Fisheries Service/NOAA, Commerce § 216.24 (v) The Administrator, West Coast Region, may suspend or revoke an ex perimental fishing waiver in accord ance with 15 CFR part 904 if the terms and conditions of the waiver or the pro visions of the regulations are not fol lowed. (8) Operator permit holder performance requirements. [Reserved] (9) Vessel permit holder dolphin mor tality limits. For purposes of this para graph, 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 Ad ministrator, West Coast Region, the name of the U.S. purse seine fishing vessel(s) of carrying capacity greater than 400 st (362.8 mt) that the owner in tends to use to intentionally deploy purse seine fishing nets in the ETP to encircle dolphins in an effort to cap ture 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 as signment of a DML for the following year under the provisions of Annex IV of the Agreement on the IDCP. (ii) Each vessel permit holder that desires a DML only for the period be tween July 1 to December 31 must pro vide the Administrator, West Coast Re gion, by September 1 of the prior year, the name of the U.S. purse seine fish ing 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 cap ture tuna during the period. NMFS will forward the list of purse seine vessels to the Director of the IATTC on or be fore October 1, or as otherwise required under the IDCP, for possible assign ment 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 de scribed in Annex IV of the Agreement on the IDCP and will not exceed one half of an unadjusted full-year DML as calculated by the IDCP. (iii)(A) The Administrator, West Coast Region, will notify vessel owners of the DML assigned for each vessel for the following year, or the second half of the year, as applicable. (B) The Administrator, West Coast Region, may adjust the DMLs in ac cordance with Annex IV of the Agree ment on the IDCP. All adjustments of full-year DMLs will be made before January 1, and the Administrator, West Coast Region, will notify the Di rector of the IATTC of any adjust ments prior to a vessel departing on a trip using its adjusted DML. The noti fication 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 require ments of Annex IV of the Agreement on the IDCP, the Administrator, West Coast Region, may adjust a vessel’s DML if it will further scientific or technological advancement in the pro tection of marine mammals in the fish ery or if the past performance of the vessel indicates that the protection or use of the yellowfin tuna stocks or ma rine mammals is best served by the ad justment, within the mandates of the MMPA. Experimental fishing operation waivers or scientific research permits will be considered a basis for adjust ments. (iv)(A) A vessel assigned a full-year DML that does not make a set on dol phins by April 1 or that leaves the fish ery 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 Re view Panel. (B) A vessel assigned a DML for the second half of the year will be consid ered 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 deter mined 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. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00045 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 36 50 CFR Ch. II (10–1–22 Edition) § 216.24 (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 ef forts 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 determina tion and given the opportunity to pro vide 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 as signed DML after any applicable ad justment 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 adjust ment is determined by the Inter national Review Panel, as mandated by the Agreement on the IDCP. (vi) A vessel that is covered by a valid vessel permit and that does not normally fish for tuna in the ETP but desires to participate in the fishery on a limited basis may apply for a per-trip DML from the Administrator, West Coast Region, at any time, allowing at least 60 days for processing. The re quest 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 proc essing 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 ex traordinary circumstances as deter mined by the International Review Panel. After two consecutive losses of a DML, a vessel will not be eligible to re ceive 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) re maining for use. (viii) Vessel and operator permit holders must not deploy a purse seine net on or encircle any school of dol phins containing individuals of a par ticular stock of dolphins for the re mainder of the calendar year: (A) after the applicable per-stock per-year dolphin mortality limit for that stock of dolphins (or for that ves sel, 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 Adminis trator, West Coast 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 ac tion provided that all procedures re quired by the applicable regulations have been followed. (x) Vessel and operator permit hold ers 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, fac simile, radio, or electronic mail, or no tice in the FEDERAL REGISTER by the Administrator, West Coast Region, based upon the best available evidence, that intentional sets on dolphins must cease because the total of the DMLs as signed to the U.S. fleet has been reached or exceeded, or is expected to be exceeded in the near future. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00046 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 37 National Marine Fisheries Service/NOAA, Commerce § 216.24 (d) Purse seining by vessels without as signed DMLs. In addition to the re quirements of paragraph (b) of this sec tion, a vessel permit used for a trip not involving an assigned DML and the op erator’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 oc currence in the course of normal com mercial fishing operations and the ves sel 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 environ ment 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 ves sel permit must allow an observer duly authorized by the Administrator, West Coast Region, to accompany the vessel on all fishing trips in the ETP for the purpose of conducting research and ob serving operations, including col lecting information that may be used in civil or criminal penalty pro ceedings, forfeiture actions, or permit sanctions. A vessel that fails to carry an observer in accordance with these requirements may not engage in fish ing operations. (i) Exemption from observer require ment. The Administrator, West Coast Region (or designee), may issue a tem porary written exemption from the ob server requirement in this paragraph (e)(1) if the Parties to the AIDCP and/ or Members of the IATTC have adopted emergency observer exemption proce dures to address relevant global or re gional health, safety, and security con cerns, as well as other international emergencies and crises. Such exemp tions will be issued on a case-by-case basis for a single fishing trip, in ac cordance with the AIDCP/IATTC ex emption procedures in effect at the time of the request. Exemptions from the requirement in this paragraph (e)(1) will only be issued when AIDCP/ IATTC exemption procedures are in ef fect and are only valid for as long as the AIDCP/IATTC exemption proce dures remain in effect. NMFS will no tify the affected fleet via email when existing AIDCP/IATTC exemption pro cedures expire. NMFS will also notify the affected fleet via email and the public by publication of a document in the FEDERAL REGISTER if new exemp tion procedures are adopted by the Par ties to the AIDCP and/or the Members of the IATTC. Requests for exemption must be made to the Administrator, West Coast Region, via email at WCR.HMS@noaa.gov, or in a manner acceptable to the Administrator, West Coast Region. (ii) [Reserved] (2) Research and observation duties will be carried out in such a manner as to minimize interference with commer cial fishing operations. Observers must be provided access to vessel personnel and to dolphin safety gear and equip ment, electronic navigation equip ment, radar displays, high powered bin oculars, 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 ade quate space on the bridge or pilothouse for clerical work, as well as space on deck adequate for carrying out ob server duties. No vessel owner, master, operator, or crew member of a per mitted vessel may impair, or in any way interfere with, the research or ob servations being carried out. Masters must allow observers to use vessel communication equipment necessary to report information concerning the take of marine mammals and other ob server collected data upon request of the observer. (3) Any marine mammals killed dur ing fishing operations that are acces sible to crewmen and requested from the permit holder or master by the ob server must be brought aboard the ves sel and retained for biological proc essing, 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 re trieved by authorized personnel of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00047 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 38 50 CFR Ch. II (10–1–22 Edition) § 216.24 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 at tempt to influence an observer, or to harass (including sexual harassment) an observer by conduct that has the purpose or effect of unreasonably inter fering with the observer’s work per formance, or that creates an intimi dating, hostile, or offensive environ ment. In determining whether conduct constitutes harassment, the totality of the circumstances, including the na ture of the conduct and the context in which it occurred, will be considered. The determination of the legality of a particular action will be made from the facts on a case-by-case basis. (i) Requirements for owners and oper ators of U.S. purse seine vessels for re porting and actions in response to ob server safety are at § 300.29 of this title. (ii) [Reserved] (5)(i) All observers must be provided sleeping, toilet and eating accommoda tions at least equal to that provided to a full crew member. A mattress or futon on the floor or a cot is not ac ceptable 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 accommo dated either in a single-person cabin or, if reasonable privacy can be ensured by installing a curtain or other tem porary 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 pro vided for the exclusive use of the ob server, then a schedule for time-shar ing common facilities must be estab lished before the placement meeting and approved by NMFS or other ap proved 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 pre pared, if the fish have been caught with commercial fishing technology that re sults in the incidental kill or inci dental serious injury of marine mam mals in excess of that allowed under this part for U.S. fishermen, or as spec ified 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 oc curs when the fish or fish product is re leased from a nation’s Customs’ cus tody and enters into the commerce of the nation. For other purposes, ‘‘im port’’ is defined in § 216.3. (2) Imports requiring a Fisheries Certifi cate of Origin and an International Fish eries Trade Permit. Shipments of tuna, tuna products, and certain other fish products identified in paragraphs (f)(2)(i) through (iii) of this section may not be imported into the United States unless: a scanned copy of a prop erly completed Fisheries Certificate of Origin (FCO), NOAA Form 370, associ ated certifications and statements de scribed in § 216.91(a), and required data set are filed electronically with U.S. Customs and Border Protection (CBP) at the time of, or in advance of, impor tation as required under § 300.323; and the importer of record designated on the entry summary (Customs Form 7501) holds a valid International Fish eries Trade Permit as specified at § 300.322 of this title. ‘‘Required data set’’ has the same meaning as § 300.321 of this title (see definition of ‘‘Docu mentation and data sets required’’). (i) Imports requiring a Fisheries Certifi cate of Origin, subject to yellowfin tuna embargo. All shipments containing yel lowfin tuna or yellowfin tuna products (other than fresh tuna) imported into the United States must be accom panied by an FCO, including, but not limited to, those imported under the following Harmonized Tariff Schedule of the United States (HTS) numbers. Updated HTS numbers can be identified by referencing the most current HTS in effect at the time of importation, available at www.usitc.gov. The scope of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00048 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 39 National Marine Fisheries Service/NOAA, Commerce ยง 216.24 yellowfin tuna embargoes and proce dures for attaining an affirmative find ing are described under paragraphs (f)(6) and (f)(8) of this section, respec tively. (A) Frozen: (products containing Yel lowfin). 0303.42.0020 Yellowfin tunas, whole, frozen 0303.42.0040 Yellowfin tunas, head-on, fro zen, except whole 0303.42.0060 Yellowfin tunas, other, frozen, except whole, head-on, fillets, livers and roes 0304.87.0000 Tuna fish fillets, frozen, not elsewhere specified or indicated (NESOI) 0304.99.1190 Tuna, frozen, in bulk or in im mediate containers weighing with their contents over 6.8 kg each (B) Airtight Containers: (products containing Yellowfin). 1604.14.1010 ......... Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers weighing with their con tents not more than 6.8 kg each 1604.14.1099 ......... Tunas and skipjack, in oil, in airtight containers, NESOI 1604.14.2291 ......... Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg, 4.8% of U.S. con sumption of canned tuna during preceding year 1604.14.2299 ......... Tunas, NESOI and skipjack, not in oil, in other airtight containers not over 7 kg, 4.8% of U.S. consump tion of canned tuna during pre ceding year 1604.14.3091 ......... Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers, weighing with their contents not more than 6.8 kg each 1604.14.3099 ......... Other tunas and skipjack, not in oil, in airtight containers, NESOI (C) Loins: (products containing Yellowfin). 1604.14.4000 ......... Tunas and skipjacks, prepared or preserved, not in airtight con tainers, not in oil, in bulk or imme diate containers with their contents over 6.8 kg each 1604.14.5000 ......... Tunas and skipjack, prepared or pre served, not in airtight containers, NESOI (D) Other: (products containing Yel lowfin). 0511.91.0090 Fish, shellfish products unfit for human consumption 1604.20.1000 Fish pastes 1604.20.1500 Fish balls, cakes and puddings, in oil 1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI 1604.20.4000 Fish sticks, not cooked, nor in oil 1604.20.5010 Fish sticks, cooked and frozen 1604.20.5090 Fish sticks, NESOI 2309.10.0010 Dog or cat food, in airtight con tainers (ii) Imports requiring a Fisheries Cer tificate of Origin, not subject to yellowfin tuna embargo. All shipments containing tuna or tuna products (other than fresh tuna or yellowfin tuna identified in paragraph (f)(2)(i) of this section) im ported into the United States must be accompanied by an FCO, including, but not limited to, those imported under the following HTS numbers. Updated HTS numbers can be identified by ref erencing the most current HTS in ef fect at the time of importation, avail able at www.usitc.gov. (A) Frozen: (other than Yellowfin). 0303.41.0000 Albacore or longfinned tunas, frozen, except fillets, livers and roes 0303.43.0000 Skipjack tunas or stripe-bellied bonito, frozen, except fillets, livers and roes 0303.44.0000 Bigeye tunas, frozen, except fil lets, livers and roes 0303.45.0110 Atlantic Bluefin, frozen, except fillets, livers and roes 0303.45.0150 Pacific Bluefin, frozen, except fillets, livers and roes 0303.46.0000 Southern bluefin tunas, frozen, except fillets, livers and roes 0303.49.0200 Tunas, frozen, except fillets, liv ers and roes, NESOI 0304.87.0000 Tuna fish fillets, frozen, NESOI 0304.99.1190 Tuna, frozen, in bulk or in im mediate containers weighing with their contents over 6.8 kg each, NESOI (B) Airtight Containers: (other than Yellowfin). 1604.14.1010 ......... Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers weighing with their con tents not more than 6.8 kg each 1604.14.1091 ......... Tunas, albacore, in oil, in airtight containers, NESOI 1604.14.1099 ......... Tunas and skipjack, in oil, in airtight containers, NESOI 1604.14.2251 ......... Albacore tuna, not in oil, in foil/flexi ble airtight containers, weighing not over 6.8 kg, 4.8% of U.S. con sumption of canned tuna during preceding year 1604.14.2259 ......... Albacore tuna, not in oil, in airtight containers weighing not over 7 kg, NESOI, 4.8% of U.S. consumption of canned tuna during preceding year 1604.14.2291 ......... Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg, 4.8% of U.S. con sumption of canned tuna during preceding year VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00049 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 40 50 CFR Ch. II (10–1–22 Edition) § 216.24 1604.14.2299 ......... Tunas, NESOI and skipjack, not in oil, in other airtight containers, not over 7 kg, 4.8% of U.S. consump tion of canned tuna during pre ceding year 1604.14.3051 ......... Tuna, albacore not in oil, in foil or other flexible airtight containers, weighing with contents not more than 6.8 kg each, NESOI 1604.14.3059 ......... Tuna, albacore not in oil, in airtight containers, NESOI 1604.14.3091 ......... Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers, weighing with their contents not more than 6.8 kg each 1604.14.3099 ......... Other tunas and skipjack, not in oil, in airtight containers, NESOI (C) Loins: (other than Yellowfin). 1604.14.4000 ......... Tunas and skipjacks, prepared or preserved, not in airtight con tainers, not in oil, in bulk or imme diate containers with their contents over 6.8 kg each 1604.14.5000 ......... Tunas and skipjack, prepared or pre served, not in airtight containers, NESOI (D) Other: (only if the product con tains tuna). 0511.91.0090 Fish, shellfish products unfit for human consumption 1604.20.1000 Fish pastes 1604.20.1500 Fish balls, cakes and puddings, in oil 1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers 1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate containers weighing with their contents not over 6.8 kg each 1604.20.3000 Fish balls, cakes and puddings, NESOI 1604.20.4000 Fish sticks, not cooked, nor in oil 1604.20.5010 Fish sticks, cooked and frozen 1604.20.5090 Fish sticks, NESOI 2309.10.0010 Dog or cat food, in airtight con tainers (iii) Exports from driftnet nations only, 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 identi fied under paragraph (f)(7) of this sec tion, and imported into the United States, including but not limited to those 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 offi cial statement described in paragraph (f)(4)(xiii) of this section. (A) Frozen: 0303.11.0000 Sockeye (red) salmon (Oncorhynchus nerka), frozen, except fil lets, livers and roes 0303.12.0012 Chinook (King) salmon (Oncorhynchus tschawytscha), frozen, ex cept fillets, livers and roes 0303.12.0022 Chum (dog) salmon (Oncorhynchus keta), frozen, except fil lets, livers and roes 0303.12.0032 Pink (humpie) salmon (Oncorhynchus gorbuscha), frozen, except fillets, livers and roes 0303.12.0052 Coho (silver) salmon (Oncorhynchus kisutch), frozen, except fil lets, livers and roes 0303.12.0062 Pacific salmon (Oncorhynchus masou, Oncorhynchus rhodurus), frozen, except fillets, livers and roes, NESOI 0303.13.0000 Atlantic salmon (Salmo salar) and Danube salmon (Hucho hucho), fro zen, except fillets, livers and roes 0303.14.0000 Trout (Salmo trutta; Oncorhynchus mykiss, clarki, aguabonita, gilae, apache, and chrysogaster), frozen, except fillets, livers and roes 0303.19.0100 Salmonidae, frozen, except fil lets, livers and roes, NESOI 0303.57.0010 Swordfish steaks, frozen, except fillets 0303.57.0090 Swordfish, frozen, except steaks, fillets, livers and roes 0303.81.0010 Dogfish (Squalus spp.), frozen, except fillets, livers and roes 0303.81.0090 Sharks, frozen, except dogfish, fillets, livers and roes 0303.89.0079 Fish, other, frozen, except fil lets, livers and roes, NESOI 0304.81.5010 Atlantic Salmonidae (Salmo salar) fillets, frozen, NESOI 0304.81.5090 Salmonidae fillets, frozen, ex cept Atlantic salmon, NESOI 0304.89.1090 Fish fillets, skinned, frozen blocks weighing over 4.5 kg each, to be minced, ground or cut into pieces of uni form weights and dimensions, NESOI 0304.91.1000 Swordfish, frozen, in bulk or in immediate containers weighing over 6.8 kg each 0304.91.9000 Swordfish, frozen, NESOI 0304.99.9191 Fish fillets, ocean, frozen, NESOI 0307.49.0010 Squid fillets, frozen 0307.49.0022 Squid, Loligo opalescens, NESOI 0307.49.0024 Squid, Loligo pealei, NESOI 0307.49.0029 Squid, Loligo, other, NESOI 0307.49.0050 Squid, other, NESOI (B) Canned: 1604.11.2020 Pink (humpie) salmon, whole or in pieces, but not minced, in oil, in air tight containers VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00050 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 41 National Marine Fisheries Service/NOAA, Commerce § 216.24 1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced, in oil, in air tight containers 1604.11.2090 Salmon NESOI, whole or in pieces, but not minced, in oil, in airtight containers 1604.11.4010 Chum (dog) salmon, not in oil, canned 1604.11.4020 Pink (humpie) salmon, not in oil, canned 1604.11.4030 Sockeye (red) salmon, not in oil, canned 1604.11.4040 Salmon, NESOI, not in oil, canned 1604.11.4050 Salmon, whole or in pieces, but not minced, NESOI 1604.19.2100 Fish, NESOI, not in oil, in air tight containers 1604.19.3100 Fish, NESOI, in oil, in airtight containers 1605.54.6020 Squid, Loligo, prepared or pre served 1605.54.6030 Squid, except Loligo, prepared or preserved (C) Other: 0305.39.6080 Fish fillets, dried, salted or in brine, but not smoked, NESOI 0305.41.0000 Pacific salmon (Oncorhynchus spp.), Atlantic salmon (Salmo salar), and Danube salmon (Hucho hucho), including fillets, smoked 0305.49.4041 Fish including fillets, smoked, NESOI 0305.59.0000 Fish, dried, whether or not salt ed but not smoked, NESOI 0305.69.4000 Salmon, salted but not dried or smoked; in brine 0305.69.5001 Fish in immediate containers weighing with their contents 6.8 kg or less each, salted but not dried or smoked; in brine, NESOI 0305.69.6001 Fish, salted but not dried or smoked; in brine, NESOI 0305.71.0000 Shark fins, dried, whether or not salted but not smoked 0305.49.0010 Squid, frozen, fillets 0307.49.0022 Squid, Loligo opalescens, frozen (except fillets), dried, salted or in brine 0307.49.0024 Squid, Loligo pealei, frozen (ex cept fillets), dried, salted or in brine 0307.49.0029 Squid, Loligo, frozen (except fil lets), dried, salted or in brine, NESOI 0307.49.0050 Squid, other, frozen (except fil lets), dried, salted or in brine, except Lo ligo squid 0307.49.0060 Cuttle fish (Sepia officinalis, Rossia macrosoma, Sepiola spp.), frozen, dried, salted or in brine (3) Disposition of Fisheries Certificates of Origin. The FCO described in para graph (f)(4) of this section may be ob tained from the Administrator, West Coast Region, or downloaded from the internet at https://www.fisheries .noaa.gov/national/marine-mammal-pro tection/noaa-form-370-fisheries-certificate origin. (i) A properly completed FCO, and its attached certifications and statements as described in § 216.91(a), must accom pany the required CBP entry docu ments that are filed at the time of, or in advance of, importation. (ii) FCOs and associated certifi cations and statements as described in § 216.91(a) must be provided electroni cally to CBP as indicated in paragraph (f)(2) of this section. (iii) FCOs that accompany imported shipments of tuna destined for further processing in the United States must be endorsed at each change in owner ship and submitted to the Adminis trator, West Coast Region, by the last endorser when all required endorse ments are completed. Such FCOs must be submitted as specified in § 216.93(d)(2). (iv) Importers and exporters are re quired to retain their records, includ ing FCOs, import or export documents, invoices, and bills of lading for 2 years, and such records must be made avail able within 30 days of a request by the Secretary or the Administrator, West Coast 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) CBP entry identification; (ii) Date of entry; (iii) Exporter’s full name and com plete address; (iv) Importer’s or consignee’s full name and complete address; (v) Species description, product form, and HTS number; (vi) Total net weight of the shipment in kilograms; (vii) Ocean area where the fish were harvested (ETP, western Pacific Ocean, south Pacific Ocean, north Pacific Ocean, eastern Atlantic Ocean, western Atlantic Ocean, Caribbean Sea, Indian Ocean, or other); (viii) Type of fishing gear used to harvest the fish (purse seine, longline, baitboat, large-scale driftnet, gillnet, pole and line/hook and line, or other); (ix) Country under whose laws the harvesting vessel operated based upon VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00051 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 42 50 CFR Ch. II (10–1–22 Edition) § 216.24 the flag of the vessel or, if a certified charter vessel, the country that ac cepted responsibility for the vessel’s fishing operations; (x) Dates on which the fishing trip began and ended; (xi) The name of the harvesting ves sel; (xii) Dolphin-safe condition of the shipment, described by checking the appropriate statement on the form and attaching additional certifications as described in § 216.91(a) if required; (xiii) For shipments containing fish or fish products exported from, or har vested on the high seas by vessels of a nation known to use large-scale driftnets, as determined by the Sec retary pursuant to paragraph (f)(7) of this section, the High Seas Driftnet Certification contained on the FCO must be dated and signed by a respon sible government official of the large scale driftnet nation, certifying that the fish or fish products were harvested by a method other than large-scale driftnet; and (xiv) Each importer, exporter, or processor who takes custody of the shipment must sign and date the form to certify that the form and attached documentation accurately describes the shipment of fish that they accom pany. (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 (§ 216.90 et seq.). (6) Scope of embargoes—(i) ETP yel lowfin tuna embargo. Yellowfin tuna or products of yellowfin tuna harvested using a purse seine in the ETP identi fied by an HTS number listed in para graph (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 ex ported from, a nation that the Assist ant 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 con taining fish or fish products identified by an HTS number listed in paragraph (f)(2) of this section may not be im ported into the United States if it is harvested by a large-scale driftnet, or 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 Sec retary will certify that nation under section 8(a) of the Fishermen’s Protec tive Act (22 U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will terminate the certification under Sec tion 8(d) of that Act (22 U.S.C. 1978(d)). (iv) Coordination. The Assistant Ad ministrator will promptly advise the Department of State and the Depart ment of Homeland Security of embargo decisions, actions, and finding deter minations. (7) Large-scale driftnet nation: deter mination. Based upon the best informa tion available, the Assistant Adminis trator 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 respon sible government official of any such nation may certify to the Assistant VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00052 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 43 National Marine Fisheries Service/NOAA, Commerce § 216.24 Administrator that none of the na tion’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 af firmative finding based upon documen tary evidence provided by the govern ment of the harvesting nation or by the IDCP and the IATTC, and will pub lish the finding in the FEDERAL REG ISTER. A finding will remain valid for 1 year or for such other period as the As sistant Administrator may determine. An affirmative finding will be termi nated if the Assistant Administrator determines that the requirements of this paragraph are no longer being met. Every 5 years, the government of the harvesting nation must submit such documentary evidence directly to the Assistant Administrator and request an affirmative finding. Documentary evidence must be submitted by the har vesting nation for the first affirmative finding application. The Assistant Ad ministrator may require the submis sion of supporting documentation or other verification of statements made in connection with requests to allow importations. An affirmative finding applies to yellowfin tuna and yellowfin tuna products that were harvested by vessels of the nation after March 3, 1999. To make an affirmative finding, the Assistant Administrator must find that: (A) The harvesting nation partici pates in the IDCP and is either a mem ber of the IATTC or has initiated (and within 6 months thereafter completed) all steps required of applicant nations, in accordance with article V, para graph 3, of the Convention establishing the IATTC, to become a member of that organization; (B) The nation is meeting its obliga tions under the IDCP and its obliga tions of membership in the IATTC, in cluding all financial obligations; (C)(1) The annual total dolphin mor tality of the nation’s purse seine fleet (including certified charter vessels op erating under its jurisdiction) did not exceed the aggregated total of the mor tality limits assigned by the IDCP for that nation’s purse seine vessels for the year preceding the year in which the finding would start; or (2)(i) Because of extraordinary cir cumstances beyond the control of the nation and the vessel captains, the total dolphin mortality of the nation’s purse seine fleet (including certified charter vessels operating under its ju risdiction) exceeded the aggregated total of the mortality limits assigned by the IDCP for that nation’s purse seine vessels; and (ii) Immediately after the national authorities discovered the aggregate mortality of its fleet had been exceed ed, the nation required all its vessels to cease fishing for tuna in association with dolphins for the remainder of the calendar year; and (D)(1) In any years in which the par ties agree to a global allocation system for per-stock per-year individual stock quotas, the nation responded to the no tification from the IATTC that an indi vidual stock quota had been reached by prohibiting any additional sets on the stock for which the quota had been reached; (2) If a per-stock per-year quota is al located to each nation, the annual per stock per-year dolphin mortality of the nation’s purse seine fleet (including certified charter vessels operating under its jurisdiction) did not exceed the aggregated total of the per-stock per-year limits assigned by the IDCP for that nation’s purse seine vessels (if any) for the year preceding the year in which the finding would start; or (3)(i) Because of extraordinary cir cumstances beyond the control of the nation and the vessel captains, the per stock per-year dolphin mortality of the nation’s purse seine fleet (including certified charter vessels operating under its jurisdiction) exceeded the ag gregated total of the per-stock per-year limits assigned by the IDCP for that nation’s purse seine vessels; and (ii) Immediately after the national authorities discovered the aggregate per-stock mortality limits of its fleet had been exceeded, the nation required all its vessels to cease fishing for tuna VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00053 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 44 50 CFR Ch. II (10–1–22 Edition) § 216.24 in association with the stocks whose limits had been exceeded, for the re mainder of the calendar year. (ii) Documentary Evidence and Compli ance with the IDCP—(A) Documentary Evidence. The Assistant Administrator will make an affirmative finding under paragraph (f)(8)(i) of this section only if the government of the harvesting na tion provides directly to the Assistant Administrator, or authorizes the IATTC to release to the Assistant Ad ministrator, complete, accurate, and timely information that enables the Assistant Administrator to determine whether the harvesting nation is meet ing the obligations of the IDCP, and whether ETP-harvested tuna imported from such nation comports with the tracking and verification regulations of subpart H of this part. (B) Revocation. After considering the information provided under paragraph (f)(8)(ii)(A) of this section, each party’s financial obligations to the IATTC, and any other relevant information, includ ing information that a nation is con sistently failing to take enforcement actions on violations that diminish the effectiveness of the IDCP, the Assist ant Administrator, in consultation with the Secretary of State, will re voke an affirmative finding issued to a nation that is not meeting the obliga tions of the IDCP. (iii) A harvesting nation may apply for an affirmative finding at any time by providing to the Assistant Adminis trator the information and authoriza tions required in paragraphs (f)(8)(i) and (f)(8)(ii) of this section, allowing at least 60 days from the submission of complete information to NMFS for processing. (iv) The Assistant Administrator will make or renew an affirmative finding for the period from April 1 through March 31 of the following year, or por tion thereof, if the harvesting nation has provided all the information and authorizations required by paragraphs (f)(8)(i) and (f)(8)(ii) of this section, and has met the requirements of para graphs (f)(8)(i) and (f)(8)(ii) of this sec tion. (v) Reconsideration of finding. The As sistant Administrator may reconsider a finding upon a request from, and the submission of additional information by, the harvesting nation, if the infor mation indicates that the nation has met the requirements under para graphs (f)(8)(i) and (f)(8)(ii) of this sec tion. (9) Intermediary nation. Except as au thorized under this paragraph, no yel lowfin tuna or yellowfin tuna products harvested by purse seine in the ETP classified under one of the HTS num bers listed in paragraph (f)(2)(i) of this section may be imported into the United States from any intermediary nation. (i) An ‘‘intermediary nation’’ is a na tion that exports yellowfin tuna or yel lowfin tuna products to the United States and that imports yellowfin tuna or yellowfin tuna products that are subject to a direct ban on importation into the United States pursuant to Sec tion 101(a)(2)(B) of the MMPA. (ii) Shipments of yellowfin tuna that pass through any nation (e.g. on a ’through Bill of Lading’) and are not entered for consumption in that nation are not considered to be imports to that nation and thus, would not cause that nation to be considered an inter mediary nation under the MMPA. (iii) The Assistant Administrator will publish in the FEDERAL REGISTER a no tice announcing when NMFS has deter mined, based on the best information available, that a nation is an ‘‘inter mediary nation.’’ After the effective date of that notice, the import restric tions of this paragraph shall apply. (iv) Changing the status of inter mediary nation determinations. Imports from an intermediary nation of yel lowfin tuna and yellowfin tuna prod ucts classified under any of the HTS numbers in paragraph (f)(2)(i) of this section may be imported into the United States only if the Assistant Ad ministrator determines, and publishes a notice of such determination in the FEDERAL REGISTER, that the inter mediary nation has provided certifi cation and reasonable proof that it has not imported in the preceding 6 months yellowfin tuna or yellowfin tuna prod ucts that are subject to a ban on direct importation into the United States under Section 101(a)(2)(B) of the MMPA. At that time, the nation shall VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00054 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 45 National Marine Fisheries Service/NOAA, Commerce § 216.24 no longer be considered an ‘‘inter mediary nation’’ and these import re strictions shall no longer apply. (v) The Assistant Administrator will review decisions under this paragraph upon the request of an intermediary nation. Such requests must be accom panied by specific and detailed sup porting information or documentation indicating that a review or reconsider ation is warranted. For purposes of this paragraph, the term ‘‘certification and reasonable proof’’ means the submis sion to the Assistant Administrator by a responsible government official from the nation of a document reflecting the nation’s customs records for the pre ceding 6 months, together with a cer tification attesting that the document is accurate. (10) Fish refused entry. If fish is denied entry under paragraph (f)(2) of this sec tion, the Port Director of CBP shall refuse to release the fish for entry into the United States. (11) Disposition of fish refused entry into the United States. Fish that is de nied entry under paragraph (f)(2) of this section and that is not exported under CBP supervision within 90 days shall be disposed of under CBP laws and regulations at the importer’s ex pense. Provided, however, that any dis position shall not result in an intro duction into the United States of fish caught in violation of the MMPA. (12) Market Prohibitions. (i) It is un lawful for any person to sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna prod ucts unless the tuna products are ei ther: (A) Dolphin-safe under subpart H of this part; or (B) Harvested in compliance with the IDCP by vessels under the jurisdiction of a nation that is a member of the IATTC or has initiated, and within 6 months thereafter completes, all steps required by an applicant nation to be come a member of the IATTC. (ii) It is unlawful for any exporter, transshipper, importer, processor, or wholesaler/distributor to possess, sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna products bearing a label or mark that refers to dolphins, porpoises, or marine mammals unless the label or mark complies with the requirements of 16 U.S.C. 1385(d). (g) Penalties. Any person or vessel subject to the jurisdiction of the United States will be subject to the penalties provided for under the MMPA for the conduct of fishing operations in violation of these regulations. Pen alties for violating these regulations may include, but are not limited to, civil monetary fines, permit suspension or revocation, and reductions in cur rent and future DMLs. Recommended sanctions are identified in the IDCPA/ DPCIA Tuna/Dolphin Civil Administra tive Penalty Schedule. Procedures for the imposition of penalties under the MMPA are found at 15 CFR part 904. (h) Taking and related acts of marine mammals in foreign commercial fishing operations not governed by the provisions related to tuna purse seine vessels in the eastern tropical Pacific Ocean—(1) Prohi bitions. (i) As provided in section 101(a)(2) and 102(c)(3)of the MMPA, the importation of commercial fish or fish products which have been caught with commercial fishing technology which results in the incidental kill or inci dental serious injury of ocean mam mals in excess of U.S. standards or caught in a manner which the Sec retary has proscribed for persons sub ject to the jurisdiction of the United States are prohibited. For purposes of paragraph (h) of this section, a fish or fish product caught with commercial fishing technology which results in the incidental mortality or incidental seri ous injury of marine mammals in ex cess of U.S. standards is any fish or fish product harvested in an exempt or ex port fishery for which a valid com parability finding is not in effect. (ii) Accordingly, it is unlawful for any person to import, or attempt to import, into the United States for com mercial purposes any fish or fish prod uct if such fish or fish product: (A) Was caught or harvested in a fish ery that does not have a valid com parability finding in effect at the time of import; or (B) Is not accompanied by a Certifi cation of Admissibility where such Cer tification is required pursuant to para graph (h)(9)(iv) of this section or by such other documentation as the As sistant Administrator may identify VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 46 50 CFR Ch. II (10–1–22 Edition) § 216.24 and announce in the FEDERAL REGISTER that indicates the fish or fish product was not caught or harvested in a fish ery subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this section. (iii) It is unlawful for any person, in cluding exporters, transshippers, im porters, processors, or wholesalers/dis tributors to possess, sell, purchase, offer for sale, re-export, transport, or ship in interstate or foreign commerce in the United States, any fish or fish product imported in violation of para graph (h) of this section. (2) Exemptions. (i) Exempt fisheries are exempt from requirements of para graphs (h)(6)(iii)(B) through (E) of this section. (A) For the purposes of paragraph (h) of this section, harvesting nation means the country under whose flag or juris diction one or more fishing vessels or other entity engaged in commercial fishing operations are documented, or which has by formal declaration or agreement asserted jurisdiction over one or more authorized or certified charter vessels, and from such vessel(s) or entity(ies) fish are caught or har vested that are a part of any cargo or shipment of fish or fish products to be imported into the United States, re gardless of any intervening trans shipments, exports or re-exports. (B) [Reserved] (ii) The prohibitions of paragraph (h)(1) of this section shall not apply during the exemption period. (iii) Paragraph (h) of this section shall not apply to a commercial fishing operation subject to section 101(a)(2)(B) of the MMPA and its implementing regulations set out in the relevant pro visions of paragraph (f) of this section which govern the incidental take of delphinids in course of commercial purse seine fishing operations for yel lowfin tuna in the eastern tropical Pa cific Ocean and restrictions on impor tation and sale of fish and fish products caught or harvested in that commer cial fishing operation. Paragraph (h) of this section shall not apply with re spect to large-scale driftnet fishing, which is governed by paragraph (f)(7) of this section and the restrictions it sets out on importation and sale of fish and fish products harvested by using a large-scale driftnet. (3) Procedures to identify foreign com mercial fishing operations with incidental mortality and serious injury of marine mammals as exempt or export fisheries. In developing the List of Foreign Fish eries in paragraph (h)(4) of this section, the Assistant Administrator: (i) Shall periodically analyze imports of fish and fish products and identify commercial fishing operations that are the source of exports of such fish and fish products to the United States that have or may have incidental mortality or serious injury of marine mammals in the course of their commercial fish ing operations. (A) For the purposes of paragraph (h) of this section, a commercial fishing op eration means vessels or entities that catch, take, or harvest fish (as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)) from the marine environment (or other areas where ma rine mammals occur) that results in the sale or barter of all or part of the fish caught, taken or harvested. The term includes aquaculture activities that interact with or occur in marine mammal habitat. (B) [Reserved] (ii) Shall notify, in consultation with the Secretary of State, each harvesting nation that has commercial fishing op erations identified pursuant to para graph (h)(3)(i) of this section and re quest that within 90 days of notifica tion the harvesting nation submit reli able information about the commercial fishing operations identified, including as relevant the number of participants, number of vessels, gear type, target species, area of operation, fishing sea son, any information regarding the fre quency of marine mammal incidental mortality and serious injury and any programs (including any relevant laws, decrees, regulations or measures) to as sess marine mammal populations and to reduce incidental mortality and se rious injury of marine mammals in those fisheries or prohibit the inten tional killing or injury of marine mam mals. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 47 National Marine Fisheries Service/NOAA, Commerce § 216.24 (iii) Shall review each harvesting na tion’s submission, evaluate any infor mation it contains (including descrip tions of its regulatory programs) and, if necessary, request additional infor mation. (iv) May consider other readily avail able and relevant information about such commercial fishing operations and the frequency of incidental mor tality and serious injury of marine mammals, including: fishing vessel records; reports of on-board fishery ob servers; information from off-loading facilities, port-side officials, enforce ment agents and officers, trans shipment vessel workers and fish im porters; government vessel registries; regional fisheries management organi zations documents and statistical doc ument programs; and appropriate cer tification programs. Other sources may include published literature and re ports on fishing vessels with incidental mortality and serious injury of marine mammals from government agencies; foreign, state, and local governments; regional fishery management organiza tions; nongovernmental organizations; industry organizations; academic insti tutions; and citizens and citizen groups. (4) List of Foreign Fisheries. (i) Within one year of January 1, 2017, and the year prior to the expiration of the ex emption period and every four years thereafter, the Assistant Adminis trator, based on the information ob tained in paragraph (h)(3) of this sec tion, will publish in the FEDERAL REG ISTER: (A) A proposed List of Foreign Fish eries by harvesting nation for notice and comment; and (B) A final List of Foreign Fisheries, effective upon publication in the FED ERAL REGISTER. (ii) To the extent that information is available, the List of Foreign Fisheries shall: (A) Classify each commercial fishing operation that is the source of exports of fish and fish products to the United States based on the definitions for ex port fishery and exempt fishery set forth in § 216.3 and identified in the List of Foreign Fisheries by harvesting na tion and other defining factors includ ing geographic location of harvest, gear-type, target species or a combina tion thereof; (B) Include fishing gear type, target species, and number of vessels or other entities engaged in each commercial fishing operation; (C) List the marine mammals that interact with each commercial fishing operation and indicate the level of inci dental mortality and serious injury of marine mammals in each commercial fishing operation; (D) Provide a description of the har vesting nation’s programs to assess marine mammal stocks and estimate and reduce marine mammal incidental mortality and serious injury in its ex port fisheries; and (E) List the harvesting nations that prohibit, in the course of commercial fishing operations that are the source of exports to the United States, the in tentional mortality or serious injury of marine mammals unless the inten tional mortality or serious injury of a marine mammal is imminently nec essary in self-defense or to save the life of a person in immediate danger. (5) Consultations with Harvesting Na tions with Commercial Fishing Operations on the List of Foreign Fisheries. (i) With in 90 days of publication of the final List of Foreign Fisheries in the FED ERAL REGISTER, the Assistant Adminis trator, in consultation with the Sec retary of State, shall consult with har vesting nations with commercial fish ing operations identified as export or exempt fisheries as defined in § 216.3 for purposes of notifying the harvesting nation of the requirements of the Ma rine Mammal Protection Act and this subpart. (ii) The Assistant Administrator, in consultation with the Secretary of State, may consult with harvesting na tions for the purposes of providing no tifications of deadlines under this sec tion, ascertaining or reviewing the progress of the harvesting nation’s de velopment, adoption, implementation, or enforcement of its regulatory pro gram governing the incidental mor tality and serious injury of marine mammals in the course of commercial fishing operations for an export fish ery, supplementing or clarifying infor mation needed in conjunction with the List of Foreign Fisheries in paragraphs VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 48 50 CFR Ch. II (10–1–22 Edition) § 216.24 (h)(3) and (4) of this section, the progress report in paragraph (h)(10) of this section or an application for or re consideration of a comparability find ing in paragraphs (h)(6) and (8) of this section. (iii) The Assistant Administrator shall, in consultation with the Sec retary of State and the United States Trade Representative, consult with any harvesting nations that failed to re ceive a comparability finding for one or more of commercial fishing oper ations or for which a comparability finding is terminated and encourage the harvesting nation to take correc tive action and reapply for a com parability finding in accordance with paragraph (h)(9)(iii) of this section. (6) Procedure and conditions for a com parability finding—(i) Procedures to apply for a comparability finding. On No vember 30 of the year prior to when the exemption period or comparability finding is to expire, a harvesting na tion, shall submit to the Assistant Ad ministrator an application for each of its export and exempt fisheries, along with documentary evidence dem onstrating that the harvesting nation has met the conditions specified in paragraph (h)(6)(iii) of this section for each of such fisheries, including rea sonable proof as to the effects on ma rine mammals of the commercial fish ing technology in use in the fishery for fish or fish products exported from such nation to the United States. The Assistant Administrator may require the submission of additional sup porting documentation or other verification of statements made in an application for a comparability find ing. (ii) Procedures to issue a comparability finding. No later than November 30th of the year when the exemption period or comparability finding is to expire, the Assistant Administrator, in response to an application from a harvesting na tion for an export or exempt fishery, shall determine whether to issue to the harvesting nation, in accordance with the procedures set forth in paragraph (h)(8) of this section, a comparability finding for the fishery. In making this determination, the Assistant Adminis trator shall consider documentary evi dence provided by the harvesting na tion and relevant information readily available from other sources. If a har vesting nation provides insufficient documentary evidence in support of its application, the Assistant Adminis trator shall draw reasonable conclu sions regarding the fishery based on readily available and relevant informa tion from other sources, including where appropriate information con cerning analogous fisheries that use the same or similar gear-type under similar conditions as the fishery, in de termining whether to issue the har vesting nation a comparability finding for the fishery. (iii) Conditions for a comparability finding. The following are conditions for the Assistant Administrator to issue a comparability finding for the fishery, subject to the additional con siderations set out in paragraph (h)(7) of this section: (A) For an exempt or export fishery, the harvesting nation: (1) Prohibits the intentional mor tality or serious injury of marine mam mals in the course of commercial fish ing operations in the fishery unless the intentional mortality or serious injury of a marine mammal is imminently necessary in self-defense or to save the life of a person in immediate danger; or (2) Demonstrates that it has proce dures to reliably certify that exports of fish and fish products to the United States are not the product of an inten tional killing or serious injury of a ma rine mammal unless the intentional mortality or serious injury of a marine mammal is imminently necessary in self-defense or to save the life of a per son in immediate danger; and (B) For an export fishery, the har vesting nation maintains a regulatory program with respect to the fishery that is comparable in effectiveness to the U.S. regulatory program with re spect to incidental mortality and seri ous injury of marine mammals in the course of commercial fishing oper ations, in particular by maintaining a regulatory program that includes, or effectively achieves comparable results as, the conditions in paragraph (h)(6)(iii)(C), (D), or (E) of this section as applicable (including for trans boundary stocks). VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 49 National Marine Fisheries Service/NOAA, Commerce § 216.24 (C) Conditions for an export fishery op erating under the jurisdiction of a har vesting nation within its EEZ (or the equivalent) or territorial sea. In making the finding in paragraph (h)(6)(ii) of this section, with respect to an export fishery operating under the jurisdic tion of a harvesting nation within its EEZ (or the equivalent) or territorial sea, the Assistant Administrator shall determine whether the harvesting na tion maintains a regulatory program that provides for, or effectively achieves comparable results as, the fol lowing: (1) Marine mammal assessments that estimate population abundance for ma rine mammal stocks in waters under the harvesting nation’s jurisdiction that are incidentally killed or seri ously injured in the export fishery. (2) An export fishery register con taining a list of all fishing vessels par ticipating in the export fishery, includ ing information on the number of ves sels participating, the time or season and area of operation, gear type and target species. (3) Regulatory requirements that in clude: (i) A requirement for the owner or op erator of a vessel participating in the export fishery to report all intentional and incidental mortality and injury of marine mammals in the course of com mercial fishing operations; and (ii) A requirement to implement measures in the export fishery designed to reduce the total incidental mor tality and serious injury of a marine mammal stock below the bycatch limit; and (iii) with respect to any transbound ary stock or any other marine mammal stocks interacting with the export fish ery, measures to reduce the incidental mortality and serious injury of that stock that the United States requires its domestic fisheries to take with re spect to that transboundary stock or marine mammal stock. (4) Implementation of monitoring procedures in the export fishery de signed to estimate incidental mor tality or serious injury in the export fishery, and to estimate the cumu lative incidental mortality and serious injury of marine mammal stocks in waters under its jurisdiction resulting from the export fishery and other ex port fisheries interacting with the same marine mammal stocks, includ ing an indication of the statistical reli ability of those estimates. (5) Calculation of bycatch limits for marine mammal stocks in waters under its jurisdiction that are inciden tally killed or seriously injured in the export fishery. (6) Comparison of the incidental mor tality and serious injury of each ma rine mammal stock or stocks that interact with the export fishery in re lation to the bycatch limit for each stock; and comparison of the cumu lative incidental mortality and serious injury of each marine mammal stock or stocks that interact with the export fishery and any other export fisheries of the harvesting nation showing that these export fisheries: (i) Do not exceed the bycatch limit for that stock or stocks; or (ii) Exceed the bycatch limit for that stock or stocks, but the portion of inci dental marine mammal mortality or serious injury for which the export fishery is responsible is at a level that, if the other export fisheries interacting with the same marine mammal stock or stocks were at the same level, would not result in cumulative incidental mortality and serious injury in excess of the bycatch limit for that stock or stocks. (D) Conditions for a harvesting nation’s export fishery operating within the juris diction of another state. In making the finding in paragraph (h)(6)(ii) of this section, with respect to a harvesting nation’s export fishery operating with in the jurisdiction of another state, the Assistant Administrator shall deter mine whether the harvesting nation maintains a regulatory program that provides for, or effectively achieves comparable results as, the following: (1) Implementation in the export fishery of: (i) With respect to any transboundary stock interacting with the export fish ery, any measures to reduce the inci dental mortality and serious injury of that stock that the United States re quires its domestic fisheries to take with respect that transboundary stock; and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 50 50 CFR Ch. II (10–1–22 Edition) § 216.24 (ii) With respect to any other marine mammal stocks interacting with the export fishery while operating within the jurisdiction of the state, any meas ures to reduce incidental mortality and serious injury that the United States requires its domestic fisheries to take with respect to that marine mammal stock; and (2) For an export fishery not subject to management by a regional fishery management organization: (i) An assessment of marine mammal abundance of stocks interacting with the export fishery, the calculation of a bycatch limit for each such stock, an estimation of incidental mortality and serious injury for each stock and re duction in or maintenance of the inci dental mortality and serious injury of each stock below the bycatch limit. This data included in the application may be provided by the state or an other source; and (ii) Comparison of the incidental mortality and serious injury of each marine mammal stock or stocks that interact with the export fishery in re lation to the bycatch limit for each stock; and comparison of the cumu lative incidental mortality and serious injury of each marine mammal stock or stocks that interact with the export fishery and any other export fisheries of the harvesting nation showing that these export fisheries do not exceed the bycatch limit for that stock or stocks; or exceed the bycatch limit for that stock or stocks, but the portion of inci dental marine mammal mortality or serious injury for which the export fishery is responsible is at a level that, if the other export fisheries interacting with the same marine mammal stock or stocks were at the same level, would not result in cumulative incidental mortality and serious injury in excess of the bycatch limit for that stock or stocks; or (3) For an export fishery that is sub ject to management by a regional fish ery management organization, imple mentation of marine mammal data col lection and conservation and manage ment measures applicable to that fish ery required under any applicable intergovernmental agreement or re gional fisheries management organiza tion to which the United States is a party. (E) Conditions for a harvesting nation’s export fishery operating on the high seas under the jurisdiction of the harvesting nation or another state. In making the finding in paragraph (h)(6)(ii) of this section, with respect to a harvesting nation’s export fishery operating on the high seas under the jurisdiction of the harvesting nation or another state, the Assistant Administrator shall de termine whether the harvesting nation maintains a regulatory program that provides for, or effectively achieves comparable results as, the U.S. regu latory program with respect to the fol lowing: (1) Implementation in the fishery of marine mammal data collection and conservation and management meas ures applicable to that fishery required under any applicable intergovern mental agreement or regional fisheries management organization to which the United States is a party; and (2) Implementation in the export fishery of: (i) With respect to any transboundary stock interacting with the export fish ery, any measures to reduce the inci dental mortality and serious injury of that stock that the United States re quires its domestic fisheries to take with respect that transboundary stock; and (ii) With respect to any other marine mammal stocks interacting with the export fishery while operating on the high seas, any measures to reduce inci dental mortality and serious injury that the United States requires its do mestic fisheries to take with respect to that marine mammal stock when they are operating on the high seas. (7) Additional considerations for com parability finding determinations. When determining whether to issue any com parability finding for a harvesting na tion’s export fishery the Assistant Ad ministrator shall also consider: (i) U.S. implementation of its regu latory program for similar marine mammal stocks and similar fisheries (e.g., considering gear or target spe cies), including transboundary stocks governed by regulations implementing a take reduction plan (§ 229.2 of this VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 51 National Marine Fisheries Service/NOAA, Commerce § 216.24 chapter), and any other relevant infor mation received during consultations; (ii) The extent to which the har vesting nation has successfully imple mented measures in the export fishery to reduce the incidental mortality and serious injury of marine mammals caused by the harvesting nation’s ex port fisheries to levels below the by catch limit; (iii) Whether the measures adopted by the harvesting nation for its export fishery have reduced or will likely re duce the cumulative incidental mor tality and serious injury of each ma rine mammal stock below the bycatch limit, and the progress of the regu latory program toward achieving its objectives; (iv) Other relevant facts and cir cumstances, which may include the history and nature of interactions with marine mammals in this export fish ery, whether the level of incidental mortality and serious injury resulting from the fishery or fisheries exceeds the bycatch limit for a marine mam mal stock, the population size and trend of the marine mammal stock, and the population level impacts of the incidental mortality or serious injury of marine mammals in a harvesting na tion’s export fisheries and the con servation status of those marine mam mal stocks where available; (v) The record of consultations under paragraph (h)(5) of this section with the harvesting nation, results of these consultations, and actions taken by the harvesting nation and under any applicable intergovernmental agree ment or regional fishery management organization to reduce the incidental mortality and serious injury of marine mammals in its export fisheries; (vi) Information gathered during on site inspection by U.S. government of ficials of a fishery’s operations; (vii) For export fisheries operating on the high seas under an applicable inter governmental agreement or regional fishery management organization to which the United States is a party, the harvesting nation’s record of imple mentation of or compliance with meas ures adopted by that regional fishery management organization or intergov ernmental agreement for data collec tion, incidental mortality and serious injury mitigation or the conservation and management of marine mammals; whether the harvesting nation is a party or cooperating non-party to such intergovernmental agreement or re gional fishery management organiza tion; the record of United States imple mentation of such measures; and whether the United States has imposed additional measures on its fleet not re quired by an intergovernmental agree ment or regional fishery management organization; or (viii) For export fisheries operating on the high seas under an applicable intergovernmental agreement or re gional fisheries management organiza tion to which the United States is not a party, the harvesting nation’s imple mentation of and compliance with measures, adopted by that regional fisheries management organization or intergovernmental agreement, and any additional measures implemented by the harvesting nation for data collec tion, incidental mortality and serious injury mitigation or the conservation and management of marine mammals and the extent to which such measures are comparable in effectiveness to the U.S. regulatory program for similar fisheries. (8) Comparability finding determina tions—(i) Publication. No later than No vember 30th of the year when the ex emption period or comparability find ing is to expire, the Assistant Adminis trator shall publish in the FEDERAL REGISTER, by harvesting nation, a no tice of the harvesting nations and fish eries for which it has issued or denied a comparability finding and the spe cific fish and fish products that as a re sult are subject to import prohibitions under paragraphs (h)(1) and (9) of this section. (ii) Notification. Prior to publication in the FEDERAL REGISTER, the Assist ant Administrator, in consultation with the Secretary of State and, in the event of a denial of a comparability finding, with the Office of the U.S. Trade Representative, shall notify each harvesting nation in writing of the fisheries of the harvesting nation for which the Assistant Administrator is: (A) Issuing a comparability finding; (B) Denying a comparability finding with an explanation for the reasons for VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 52 50 CFR Ch. II (10–1–22 Edition) § 216.24 the denial of such comparability find ing; and (C) Specify the fish and fish products that will be subject to import prohibi tions under paragraphs (h)(1) and (9) of this section on account of a denial of a comparability finding and the effective date of such import prohibitions. (iii) Preliminary comparability finding consultations. (A) Prior to denying a comparability finding under paragraph (h)(8)(ii) of this section or terminating a comparability finding under para graph (h)(8)(vii) of this section, the As sistant Administrator shall: (1) Notify the harvesting nation that it is preliminarily denying or termi nating its comparability finding and explain the reasons for that prelimi nary denial or termination; (2) Provide the harvesting nation a reasonable opportunity to submit reli able information to refute the prelimi nary denial or termination of the com parability finding and communicate any corrective actions it is taking to meet the applicable conditions for a comparability finding set out in para graph (h)(6)(iii) of this section subject to the additional considerations set out in paragraph (h)(7) of this section. (B) The Assistant Administrator shall take into account any informa tion it receives from the harvesting na tion and issue a final comparability finding determination, notifying the harvesting nation pursuant to para graph (h)(8)(ii) of this section of its de termination and, if a denial or termi nation, an explanation of the reasons for the denial or termination of the comparability finding. (C) A preliminary denial or termi nation of a comparability finding shall not result in import prohibitions pur suant to paragraphs (h)(1) and (9) of this section. (iv) Duration of a comparability find ing. Unless terminated in accordance with paragraph (h)(8)(vii) of this sec tion or issued for a specific period pur suant to a re-application under para graph (h)(9)(iii) of this section, a com parability finding shall remain valid for 4 years from publication or for such other period as the Assistant Adminis trator may specify. (v) Renewal of comparability finding. To seek renewal of a comparability finding, every 4 years or prior to the expiration of a comparability finding, the harvesting nation must submit to the Assistant Administrator the appli cation and the documentary evidence required pursuant to paragraph (h)(6)(i) of this section, including, where appli cable, reasonable proof as to the effects on marine mammals of the commercial fishing technology in use in the fishery for fish or fish products exported to the United States, by November 30 of the year prior to the expiration date of its current comparability finding. (vi) Procedures for a comparability finding for new foreign commercial fishing operations wishing to export to the United States. (A) For foreign commercial fish ing operations not on the List of For eign Fisheries that are the source of new exports to the United States, the harvesting nation must notify the As sistant Administrator that the com mercial fishing operation wishes to ex port fish and fish products to the United States. (B) Upon notification the Assistant Administrator shall issue a provisional comparability finding allowing such imports for a period not to exceed 12 months. (C) At least 120 days prior to the ex piration of the provisional com parability finding the harvesting na tion must submit to the Assistant Ad ministrator the reliable information specified in paragraph (h)(3)(ii) of this section and the application and the ap plicable documentary evidence re quired pursuant to paragraph (h)(6)(i) of this section. (D) Prior to expiration of the provi sional comparability finding, the As sistant Administrator shall review the application and information provided and classify the commercial fishing op eration as either an exempt or export fishery in accordance with paragraphs (h)(3)(iii) through (iv) and (h)(4)(ii) of this section and determine whether to issue the harvesting nation a com parability finding for the fishery in ac cordance with paragraph (h)(6)(ii) through (iii) of this section. (E) If the harvesting nation submits the reliable information specified in paragraph (h)(3)(ii) of this section at least 180 days prior to expiration of the provisional comparability finding, the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00062 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 53 National Marine Fisheries Service/NOAA, Commerce § 216.24 Assistant Administrator will review that information and classify the fish ery as either an exempt or export fish ery. (vii) Discretionary review of com parability findings. (A) The Assistant Administrator may reconsider a com parability finding that it has issued at any time based upon information ob tained by the Assistant Administrator including any progress report received from a harvesting nation; or upon re quest with the submission of informa tion from the harvesting nation, any nation, regional fishery management organizations, nongovernmental orga nizations, industry organizations, aca demic institutions, citizens or citizen groups that the harvesting nation’s ex empt or export fishery no longer meets the applicable conditions in paragraph (h)(6)(iii) of this section. Upon receiv ing a request, the Assistant Adminis trator has the discretion to determine whether to proceed with a review or re consideration. (B) After such review or reconsider ation and consultation with the har vesting nation, the Assistant Adminis trator shall, if the Assistant Adminis trator determines that the basis for the comparability finding no longer ap plies, terminate a comparability find ing. (C) The Assistant Administrator shall notify in writing the harvesting nation and publish in the FEDERAL REGISTER a notice of the termination and the specific fish and fish products that as a result are subject to import prohibitions under paragraphs (h)(1) and (9) of this section. (9) Imposition of import prohibitions. (i) With respect to a harvesting nation for which the Assistant Administrator has denied or terminated a comparability finding for a fishery, the Assistant Ad ministrator, in cooperation with the Secretaries of the Treasury and Home land Security, shall identify and pro hibit the importation of fish and fish products into the United States from the harvesting nation caught or har vested in that fishery. Any such import prohibition shall become effective 30 days after the of publication of the FEDERAL REGISTER notice referenced in paragraph (h)(8)(i) of this section and shall only apply to fish and fish prod ucts caught or harvested in that fish ery. (ii) Duration of import restrictions and removal of import restrictions. (A) Any import prohibition imposed pursuant to paragraphs (h)(1) and (9) of this sec tion with respect to a fishery shall re main in effect until the Assistant Ad ministrator issues a comparability finding for the fishery. (B) A harvesting nation with an ex port fishery with a comparability find ing that expired, was denied or termi nated may re-apply for a comparability finding at any time by submitting an application to the Assistant Adminis trator, along with documentary evi dence demonstrating that the har vesting nation has met the conditions specified in paragraph (h)(6)(iii) of this section, including, as applicable, rea sonable proof as to the effects on ma rine mammals of the commercial fish ing technology in use in the fishery for the fish or fish products exported from such nation to the United States. (C) The Assistant Administrator shall make a determination whether to issue the harvesting nation that has re applied for a comparability finding for the fishery within 90 days from the submission of complete information to the Assistant Administrator. The As sistant Administrator shall issue a comparability finding for the fishery for a specified period where the Assist ant Administrator finds that the har vesting nation meets the applicable conditions in paragraph (h)(6)(iii) of this section, subject to the additional consideration for a comparability find ing in paragraph (h)(7) of this section. (D) Upon issuance of a comparability finding to the harvesting nation with respect to the fishery and notification in writing to the harvesting nation, the Assistant Administrator, in coopera tion with the Secretaries of Treasury and Homeland Security, shall publish in the FEDERAL REGISTER a notice of the comparability finding and the re moval of the corresponding import pro hibition effective on the date of publi cation in the FEDERAL REGISTER. (iii) Certification of admissibility. (A) If fish or fish products are subject to an import prohibition under paragraphs VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 54 50 CFR Ch. II (10–1–22 Edition) § 216.24 (h)(1) and (9) of this section, the Assist ant Administrator, to avoid circumven tion of the import prohibition, may re quire that the same or similar fish and fish products caught or harvested in another fishery of the harvesting na tion and not subject to the prohibition be accompanied by a certification of admissibility by paper or electronic equivalent filed through the National Marine Fisheries Service message set required in the International Trade Data System. No certification of ad missibility shall be required for a fish product for which it is infeasible to substantiate the attestation that the fish or fish products do not contain fish or fish products caught or harvested in a fishery subject to an import prohibi tion. The certification of admissibility may be in addition to any other appli cable import documentation require ments. (B) The Assistant Administrator shall notify the harvesting nation of the fisheries and the fish and fish prod ucts to be accompanied by a certifi cation of admissibility and provide the necessary documents and instruction. (C) The Assistant Administrator, in cooperation with the Secretaries of Treasury and Homeland Security, shall as part of the FEDERAL REGISTER notice referenced in paragraph (h)(8)(i) of this section, publish a list of fish and fish products, organized by harvesting na tion, required to be accompanied by a certification of admissibility. Any re quirement for a certification of admis sibility shall be effective 30 days after the publication of such notice in the FEDERAL REGISTER. (D) For each shipment, the certifi cation of admissibility must be prop erly completed and signed by a duly authorized official or agent of the har vesting nation and subject to valida tion by a responsible official(s) des ignated by the Assistant Adminis trator. The certification must also be signed by the importer of record and submitted in a format (electronic fac simile [fax], the Internet, etc.) speci fied by the Assistant Administrator. (iv) Intermediary nation. (A) For pur poses of this paragraph (h)(9), and in applying the definition of an ‘‘inter mediary nation,’’ an import into the intermediary nation occurs when the fish or fish product is released from a harvesting nation’s customs jurisdic tion and enters the customs jurisdic tion of the intermediary nation or when the fish and fish products are en tered into a foreign trade zone of the intermediary nation for processing or transshipment. For other purposes, ‘‘import’’ is defined in § 216.3. (B) No fish or fish products caught or harvested in a fishery subject to an im port prohibition under paragraphs (h)(1) and (9) of this section, may be imported into the United States from any intermediary nation. (C) Within 30 days of publication of the FEDERAL REGISTER notice described in paragraph (h)(8)(i) of this section specifying fish and fish products sub ject to import prohibitions under para graphs (h)(1) and (9) of this section, the Assistant Administrator shall, based on readily available information, iden tify intermediary nations that may im port, and re-export to the United States, fish and fish products from a fishery subject to an import prohibi tion under paragraphs (h)(1) and (h)(9)(i) of this section and notify such nations in writing that they are sub ject to action under paragraph (h)(9)(iv)(D) of this section with respect to the fish and fish products for which the Assistant Administer identified them. (D) Within 60 days from the date of notification, an intermediary nation notified pursuant to paragraph (h)(9)(iv)(C) of this section must certify to the Assistant Administrator that it: (1) Does not import, or does not offer for import into the United States, fish or fish products subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this section; or (2) Has procedures to reliably certify that exports of fish and fish products from the intermediary nation to the United States do not contain fish or fish products caught or harvested in a fishery subject to an import prohibi tion under paragraphs (h)(1) and (h)(9)(i) of this section. (E) The intermediary nation must provide documentary evidence to sup port its certification including infor mation demonstrating that: VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00064 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 55 National Marine Fisheries Service/NOAA, Commerce ยง 216.24 (1) It has not imported in the pre ceding 6 months the fish and fish prod ucts for which it was notified under paragraph (h)(9)(iv)(C) of this section; or (2) It maintains a tracking, verification, or other scheme to reli ably certify on either a global, indi vidual shipment or other appropriate basis that fish and fish products from the intermediary nation offered for im port to the United States do not con tain fish or fish products caught or harvested in a fishery subject to an im port prohibition under paragraphs (h)(1) and (h)(9)(i) of this section and for which it was notified under para graph (h)(9)(iv)(C) of this section. (F) No later than 120 days after a no tification pursuant to paragraph (h)(9)(iv)(C) of this section, the Assist ant Administrator will review the doc umentary evidence provided by the intermediary nation under paragraphs (h)(9)(iv)(D) and (E) of this section and determine based on that information or other readily available information whether the intermediary nation im ports, or offers to import into the United States, fish and fish products subject import prohibitions and, if so, whether the intermediary nation has procedures to reliably certify that ex ports of fish and fish products from the intermediary nation to the United States do not contain fish or fish prod ucts subject to import prohibitions under paragraphs (h)(1) and (9) of this section, and notify the intermediary nation of its determination. (G) If the Assistant Administrator determines that the intermediary na tion does not have procedures to reli ably certify that exports of fish and fish products from the intermediary nation to the United States do not con tain fish or fish products caught or harvested in a fishery subject to an im port prohibition under paragraphs (h)(1) and (h)(9)(i) of this section, the Assistant Administrator, in coopera tion with the Secretaries of the Treas ury and Homeland Security, will file with the Office of the Federal Register a notice announcing the fish and fish products exported from the inter mediary nation to the United States that are of the same species as, or simi lar to, fish or fish products subject to an import prohibition under para graphs (h)(1) and (h)(9)(i) of this section that may not be imported into the United States as a result of the deter mination. A prohibition under this paragraph shall not apply to any fish or fish product for which the inter mediary nation was not identified under paragraph (h)(9)(iv)(C) of this section. (H) The Assistant Administrator will review determinations under this para graph upon the request of an inter mediary nation. Such requests must be accompanied by specific and detailed supporting information or documenta tion indicating that a review or recon sideration is warranted. Based upon such information and other relevant information, the Assistant Adminis trator may determine that the inter mediary nation should no longer be subject to an import prohibition under paragraph (h)(9)(iv)(G) of this section. If the Assistant Administrator makes such a determination, the Assistant Administrator, in cooperation with the Secretaries of the Treasury and Home land Security, shall lift the import pro hibition under this paragraph and pub lish notification of such action in the FEDERAL REGISTER. (10) Progress report for harvesting na tions with export fisheries. (i) A har vesting nation shall submit, with re spect to an exempt or export fishery, a progress report to the Assistant Ad ministrator documenting actions taken to: (A) Develop, adopt and implement its regulatory program; and (B) Meet the conditions in paragraph (h)(6)(iii) of this section, including with respect to reducing or maintaining in cidental mortality and serious injury of marine mammals below the bycatch limit for its fisheries. (ii) The progress report should in clude the methods the harvesting na tion is using to obtain information in support of a comparability finding and a certification by the harvesting na tion of the accuracy and authenticity of the information contained in the progress report. (iii) The first progress report will be due two years prior to the end of ex emption period and every four years thereafter on or before July 31. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00065 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 56 50 CFR Ch. II (10–1–22 Edition) § 216.25 1 In the context of captive maintenance of marine mammals, the only marine mammals exempted under this section are those that were actually captured or otherwise in cap tivity before December 21, 1972. (iv) The Assistant Administrator may review the progress report to mon itor progress made by a harvesting na tion in developing its regulatory pro gram or to reconsider a comparability finding in accordance with paragraph (h)(8)(vi) of this section. (11) International cooperation and as sistance. Consistent with the authority granted under Marine Mammal Protec tion Act at 16 U.S.C. 1378 and the avail ability of funds, the Assistant Adminis trator may: (i) Provide appropriate assistance to harvesting nations identified by the Assistant Administrator under para graph (h)(5) of this section with respect to the financial or technical means to develop and implement the require ments of this section; (ii) Undertake, where appropriate, co operative research on marine mammal assessments for abundance, methods to estimate incidental mortality and seri ous injury and technologies and tech niques to reduce marine mammal inci dental mortality and serious injury in export fisheries; (iii) Encourage and facilitate, as ap propriate, the voluntary transfer of ap propriate technology on mutually agreed terms to assist harvesting na tions in qualifying for a comparability finding under paragraph (h)(6) of this section; and (iv) Initiate, through the Secretary of State, negotiations for the develop ment of bilateral or multinational agreements with harvesting nations to conserve marine mammals and reduce the incidental mortality and serious injury of marine mammals in the course of commercial fishing oper ations. (12) Consistency with international obli gations. The Assistant Administrator shall ensure, in consultation with the Department of State and the Office of the United States Trade Representa tive that any action taken under this section, including any action to deny a comparability finding or to prohibit imports, is consistent with the inter national obligations of the United States, including under the World Trade Organization Agreement. [69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005; 74 FR 1613, Jan. 13, 2009; 81 FR 36184, June 6, 2016; 81 FR 51132, Aug. 3, 2016; 81 FR 54413, Aug. 15, 2016; 83 FR 3625, Jan. 26, 2018; 84 FR 70043, Dec. 20, 2019; 85 FR 29669, May 18, 2020; 85 FR 49975, Aug. 17, 2020; 85 FR 58297, Sept. 18, 2020; 85 FR 69517, Nov. 3, 2020; 87 FR 17023, Mar. 25, 2022] § 216.25 Exempted marine mammals and marine mammal products. (a) The provisions of the MMPA and these regulations shall not apply: (1) To any marine mammal taken be fore December 21, 1972 1, or (2) To any marine mammal product if the marine mammal portion of such product consists solely of a marine mammal taken before such date. (b) The prohibitions contained in § 216.12(c) (3) and (4) shall not apply to marine mammals or marine mammal products imported into the United States before the date on which a no tice is published in the FEDERAL REG ISTER with respect to the designation of the species or stock concerned as de pleted or endangered. (c) Section 216.12(b) shall not apply to articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of such marine mammals or marine mammal products unlawful. [39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, 1994] § 216.26 Collection of certain marine mammal parts without prior au thorization. Notwithstanding any other provision of this subpart: (a) Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from land within1⁄4 of a mile of the ocean. The term ocean in cludes bays and estuaries. (b) Notwithstanding the provisions of subpart D, soft parts that are sloughed, excreted, or discharged naturally by a VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00066 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 57 National Marine Fisheries Service/NOAA, Commerce ยง 216.27 living marine mammal in the wild may be collected or imported for bona fide scientific research and enhancement, provided that collection does not in volve the taking of a living marine mammal in the wild. (c) Any marine mammal part col lected under paragraph (a) of this sec tion or any marine mammal part col lected and imported under paragraph (b) of this section must be registered and identified, and may be transferred or otherwise possessed, in accordance with ยง 216.22(c). In registering a marine mammal part collected or imported under paragraph (b) of this section, the person who collected or imported the part must also state the scientific re search or enhancement purpose for which the part was collected or im ported. (d) No person may purchase, sell or trade for commercial purposes any ma rine mammal part collected or im ported under this section. (e) The export of parts collected without prior authorization under paragraph (b) of this section may occur if consistent with the provisions at ยง 216.37(d) under subpart D. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996] ยง 216.27 Release, non-releasability, and disposition under special exception permits for rehabilitated marine mammals. (a) Release requirements. (1) Any ma rine mammal held for rehabilitation must be released within six months of capture or import unless the attending veterinarian determines that: (i) The marine mammal might ad versely affect marine mammals in the wild; (ii) Release of the marine mammal to the wild will not likely be successful given the physical condition and be havior of the marine mammal; or (iii) More time is needed to deter mine whether the release of the marine mammal to the wild will likely be suc cessful. Releasability must be reevalu ated at intervals of no less than six months until 24 months from capture or import, at which time there will be a rebuttable presumption that release into the wild is not feasible. (2) The custodian of the rehabilitated marine mammal shall provide written notification prior to any release into the wild. (i) Notification shall be provided to: (A) The NMFS Regional Director at least 15 days in advance of releasing any beached or stranded marine mam mal, unless advance notice is waived in writing by the Regional Director; or (B) The Office Director at least 30 days in advance of releasing any im ported marine mammal. (ii) Notification shall include the fol lowing: (A) A description of the marine mam mal, including its physical condition and estimated age; (B) The date and location of release; and (C) The method and duration of transport prior to release. (3) The Regional Director, or the Of fice Director as appropriate, may: (i) Require additional information prior to any release; (ii) Change the date or location of re lease, or the method or duration of transport prior to release; (iii) Impose additional conditions to improve the likelihood of success or to monitor the success of the release; or (iv) Require other disposition of the marine mammal. (4) All marine mammals must be re leased near wild populations of the same species, and stock if known, un less a waiver is granted by the Re gional Director or the Office Director. (5) All marine mammals released must be tagged or marked in a manner acceptable to the Regional Director or the Office Director. The tag number or description of the marking must be re ported to the Regional Director or Of fice Director following release. (b) Non-releasability and postponed de terminations. (1) The attending veteri narian shall provide the Regional Di rector or Office Director with a written report setting forth the basis of any de termination under paragraphs (a)(1)(i) through (iii) of this section. (2) Upon receipt of a report under paragraph (b)(1) of this section, the Re gional Director or Office Director, in their sole discretion, may: (i) Order the release of the marine mammal; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00067 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 58 50 CFR Ch. II (10–1–22 Edition) § 216.27 (ii) Order continued rehabilitation for an additional 6 months; or (iii) Order other disposition as au thorized. (3) No later than 30 days after a ma rine mammal is determined unreleasable in accordance with para graphs (a)(1)(i) through (iii) of this sec tion, the person with authorized cus tody must: (i) Request authorization to retain or transfer custody of the marine mam mal in accordance with paragraph (c) of this section, or; (ii) Humanely euthanize the marine mammal or arrange any other disposi tion of the marine mammal authorized by the Regional Director or Office Di rector. (4) Notwithstanding any of the provi sions of this section, the Office Direc tor may require use of a rehabilitated marine mammal for any activity au thorized under subpart D in lieu of ani mals taken from the wild. (5) Any rehabilitated beached or stranded marine mammal placed on public display following a non-releas ability determination under paragraph (a)(1) of this section and pending dis position under paragraph (c) of this section, or any marine mammal im ported for medical treatment otherwise unavailable and placed on public dis play pending disposition after such medical treatment is concluded, must be held in captive maintenance con sistent with all requirements for public display. (c) Disposition for a special exception purpose. (1) Upon receipt of an author ization request made under paragraph (b)(3)(i) of this section, or release noti fication under (a)(2), the Office Direc tor may authorize the retention or transfer of custody of the marine mam mal for a special exception purpose au thorized under subpart D. (2) The Office Director will first con sider requests from a person authorized to hold the marine mammal for reha bilitation. The Office Director may au thorize such person to retain or trans fer custody of the marine mammal for scientific research, enhancement, or public display purposes. (3) The Office Director may authorize retention or transfer of custody of the marine mammal only if: (i) Documentation has been sub mitted to the Office Director that the person retaining the subject animal or the person receiving custody of the subject animal by transfer, hereinafter referred to as the recipient, complies with public display requirements of 16 U.S.C. 1374(c)(2)(A) or, for purposes of scientific research and enhancement, holds an applicable permit, or an appli cation for such a special exception per mit under § 216.33 or a request for a major amendment under § 216.39 has been submitted to the Office Director and has been found complete; (ii) The recipient agrees to hold the marine mammal in conformance with all applicable requirements and stand ards; and (iii) The recipient acknowledges that the marine mammal is subject to sei zure by the Office Director: (A) If, at any time pending issuance of the major amendment or permit, the Office Director determines that seizure is necessary in the interest of the health or welfare of the marine mam mal; (B) If the major amendment or per mit is denied; or (C) If the recipient is issued a notice of violation and assessment, or is sub ject to permit sanctions, in accordance with 15 CFR part 904. (4) There shall be no remuneration associated with any transfer, provided that, the transferee may reimburse the transferor for any and all costs associ ated with the rehabilitation and trans port of the marine mammal. (5) Marine mammals undergoing re habilitation or pending disposition under this section shall not be subject to public display, unless such activities are specifically authorized by the Re gional Director or the Office Director, and conducted consistent with the re quirements applicable to public dis play. Such marine mammals shall not be trained for performance or be in cluded in any aspect of a program in volving interaction with the public; and (6) Marine mammals undergoing re habilitation shall not be subject to in trusive research, unless such activities are specifically authorized by the Of fice Director in consultation with the Marine Mammal Commission and its VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00068 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 59 National Marine Fisheries Service/NOAA, Commerce § 216.33 Committee of Scientific Advisors on Marine Mammals, and are conducted pursuant to a scientific research per mit. (d) Reporting. In addition to the re port required under § 216.22(b), the per son authorized to hold marine mam mals for rehabilitation must submit re ports to the Regional Director or Office Director regarding release or other dis position. These reports must be pro vided in the form and frequency speci fied by the Regional Director or Office Director. [61 FR 21933, May 10, 1996] Subpart D—Special Exceptions § 216.30 [Reserved] § 216.31 Definitions. For the purpose of this subpart, the definitions set forth in 50 CFR part 217 shall apply to all threatened and en dangered marine mammals, unless a more restrictive definition exists under the MMPA or part 216. [61 FR 21935, May 10, 1996] § 216.32 Scope. The regulations of this subpart apply to: (a) All marine mammals and marine mammal parts taken or born in cap tivity after December 20, 1972; and (b) All marine mammals and marine mammal parts that are listed as threatened or endangered under the ESA. [61 FR 21935, May 10, 1996] § 216.33 Permit application submis sion, review, and decision proce dures. (a) Application submission. Persons seeking a special exemption permit under this subpart must submit an ap plication to the Office Director. The application must be signed by the ap plicant, and provide in a properly for matted manner all information nec essary to process the application. Writ ten instructions addressing informa tion requirements and formatting may be obtained from the Office Director upon request. (b) Applications to export living marine mammals. For applicants seeking a spe cial exception permit to export living marine mammals, the application must: (1) Be submitted through the Conven tion on International Trade in Endan gered Fauna and Flora management authority of the foreign government or, if different, the appropriate agency or agencies of the foreign government that exercises oversight over marine mammals. (2) Include a certification from the foreign government that: (i) The information set forth in the application is accurate; (ii) The laws and regulations of the foreign governmentinvolved allow en forcement of the terms and conditions of the permit, and that the foreign gov ernment will enforce all terms and con ditions; and (iii) The foreign government involved will afford comity to any permit amendment, modification, suspension or revocation decision. (c) Initial review. (1) NMFS will notify the applicant of receipt of the applica tion. (2) During the initial review, the Of fice Director will determine: (i) Whether the application is com plete. (ii) Whether the proposed activity is for purposes authorized under this sub part. (iii) If the proposed activity is for en hancement purposes, whether the spe cies or stock identified in the applica tion is in need of enhancement for its survival or recovery and whether the proposed activity will likely succeed in its objectives. (iv) Whether the activities proposed are to be conducted consistent with the permit restrictions and permit specific conditions as described in § 216.35 and § 216.36(a). (v) Whether sufficient information is included regarding the environmental impact of the proposed activity to en able the Office Director: (A) To make an initial determination under the National Environmental Pol icy Act (NEPA) as to whether the pro posed activity is categorically excluded from preparation of further environ mental documentation, or whether the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R