50 CFR § 216.1-216.8 - Regulations governing the taking and importing of marine mammals - Introduction

7 National Marine Fisheries Service/NOAA, Commerce § 216.3 216.102 Scope. 216.103 Definitions. 216.104 Submission of requests. 216.105 Specific regulations. 216.106 Letter of Authorization. 216.107 Incidental harassment authorization for Arctic waters. 216.108 Requirements for monitoring and re porting under incidental harassment au thorizations for Arctic waters. Subparts J–X[Reserved] FIGURE 1 TO PART 216—NORTHERN FUR SEAL BREEDING AREAS (ROOKERIES) AND HAUL ING GROUNDS ON ST. GEORGE ISLAND, ALASKA AUTHORITY: 16 U.S.C. 1361 et seq., unless otherwise noted. SOURCE: 39 FR 1852, Jan. 15, 1974, unless otherwise noted. NOTE TO PART 216: See also 50 CFR parts 228 and 229 for regulations governing certain in cidental takings of marine mammals. Subpart A—Introduction § 216.1 Purpose of regulations. The regulations in this part imple ment the Marine Mammal Protection Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361– 1407, Pub. L. 92–522, which, among other things, restricts the taking, possession, transportation, selling, offering for sale, and importing of marine mam mals. § 216.2 Scope of regulations. This part 216 applies solely to marine mammals and marine mammal prod ucts as defined in § 216.3. For regula tions under the MMPA, with respect to other marine mammals and marine mammal products, see 50 CFR part 18. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994] § 216.3 Definitions. In addition to definitions contained in the MMPA, and unless the context otherwise requires, in this part 216: Acts means, collectively, the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 et seq., the En dangered Species Act of 1973, as amend ed, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et seq. Active sportfishing means paying pas sengers have their terminal fishing gear (lures, hooks, etc.) in the water in an attempt to catch fish or, in the case of fishing involving chumming, fishing is considered to be in progress from the instant fish have been sighted taking bait (boiling) during that chumming process. Administrator, Southwest Region means the Regional Administrator, Southwest Region, National Marine Fisheries Service, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802–4213, or his or her designee. Agreement on the International Dolphin Conservation Program (Agreement on the IDCP) means the Agreement estab lishing the formal binding IDCP that was signed in Washington, DC on May 21, 1998. Alaskan Native means a person de fined in the Alaska Native Claims Set tlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the United States who is of one-fourth degree or more Alaska Indian (including Tsimishian Indians enrolled or not enrolled in the Metlaktla Indian Community), Es kimo, or Aleut blood or combination thereof. The term includes any Native, as so defined, either or both of whose adoptive parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen of the United States who is regarded as an Alaska Native by the Native village or group, of which he claims to be a member and whose father or mother is (or, if deceased, was) regarded as Na tive by any Native village or Native group. Any such citizen enrolled by the Secretary of the Interior pursuant to section 5 of the Alaska Native Claims Settlement Act shall be conclusively presumed to be an Alaskan Native for purposes of this part. Albacore tuna means the species Thunnus alalunga. Article of handicraft means items made by an Indian, Aleut or Eskimo from the nonedible byproducts of fur seals taken for personal or family con sumption which— (1) Were commonly produced by Alas kan Natives on or before October 14, 1983; (2) Are composed wholly or in some significant respect of natural mate rials, and; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00017 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 8 50 CFR Ch. II (10–1–22 Edition) § 216.3 (3) Are significantly altered from their natural form and which are pro duced, decorated, or fashioned in the exercise of traditional native handi crafts without the use of pantographs, multiple carvers, or similar mass copy ing devices. Improved methods of pro duction utilizing modern implements such as sewing machines or modern tanning techniques at a tannery reg istered pursuant to § 216.23(c) may be used so long as no large scale mass pro duction industry results. Traditional native handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as a cooperative, is permitted so long as no large scale mass production results. Assistant Administrator means the As sistant Administrator for Fisheries, National Marine Fisheries Service, Na tional Oceanic and Atmospheric Ad ministration, Silver Spring, MD 20910, or his/her designee. Authentic native articles of handicrafts and clothing means items made by an Indian, Aleut or Eskimo which (a) were commonly produced on or before De cember 21, 1972, and (b) are composed wholly or in some significant respect of natural materials, and (c) are signifi cantly altered from their natural form and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or simi lar mass copying devices. Improved methods of production utilizing mod ern implements such as sewing ma chines or modern tanning techniques at a tannery registered pursuant to § 216.23(c) may be used so long as no large scale mass production industry results. Traditional native handicrafts include, but are not limited to, weav ing, carving, stitching, sewing, lacing, beading, drawing, and painting. The formation of traditional native groups, such as a cooperative, is permitted so long as no large scale mass production results. Bigeye tuna means the species Thunnus obesus. Bluefin tuna means the species Thunnus thynnus or Thunnus orientalis. Bona fide scientific research: (1) Means scientific research on marine mammals conducted by qualified personnel, the results of which: (i) Likely would be accepted for pub lication in a refereed scientific journal; (ii) Are likely to contribute to the basic knowledge of marine mammal bi ology or ecology. (Note: This includes, for example, marine mammal parts in a properly curated, professionally ac credited scientific collection); or (iii) Are likely to identify, evaluate, or resolve conservation problems. (2) Research that is not on marine mammals, but that may incidentally take marine mammals, is not included in this definition (see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA, and sections 7(b)(4) and 10(a)(1)(B) of the ESA). Bycatch limit means the calculation of a potential biological removal level for a particular marine mammal stock, as defined in § 229.2 of this chapter, or comparable scientific metric estab lished by the harvesting nation or ap plicable regional fishery management organization or intergovernmental agreement. Carrying capacity means the Regional Director’s determination of the max imum amount of fish that a vessel can carry in short tons based on the great er of the amount indicated by the builder of the vessel, a marine sur veyor’s report, or the highest amount reported landed from any one trip. Certified charter vessel means a fishing vessel of a non-U.S. flag nation, which is operating under the jurisdiction of the marine mammal laws and regula tions of another, harvesting, nation by a formal declaration entered into by mutual agreement of the nations. Co-investigator means the on-site rep resentative of a principal investigator. Commercial fishing operation means the lawful harvesting of fish from the marine environment for profit as part of an ongoing business enterprise. Such terms may include licensed commer cial passenger fishing vessel (as de fined) activities, but no other sportfishing activities, whether or not the fish so caught are subsequently sold. Commercial passenger fishing vessel means any vessel licensed for commer cial passenger fishing purposes within the State out of which it is operating VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00018 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 9 National Marine Fisheries Service/NOAA, Commerce § 216.3 and from which, while under charter or hire, persons are legally permitted to conduct sportfishing activities. Comparability finding means a finding by the Assistant Administrator that the harvesting nation for an export or exempt fishery has met the applicable conditions specified in § 216.24(h)(6)(iii) subject to the additional consider ations for comparability determina tions set out in § 216.24(h)(7). Custody means holding a live marine mammal pursuant to the conditional authority granted under the MMPA, and the responsibility therein for cap tive maintenance of the marine mam mal. Declaration of Panama means the dec laration signed in Panama City, Repub lic of Panama, on October 4, 1995. Director, Office of Protected Resources means Director, Office of Protected Re sources, National Marine Fisheries Service, 1315 East-West Highway, Sil ver Spring, MD 20910. Dolphin Mortality Limit (DML) means the maximum allowable number of in cidental dolphin mortalities per cal endar year assigned to a vessel, unless a shorter time period is specified. Endangered Species means a species or subspecies of marine mammal listed as ‘‘endangered’’ pursuant to the Endan gered Species Act of 1973, 87 Stat. 884, Pub. L. 93–205 (see part 17 of this title). ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq. ETP means the eastern tropical Pa cific Ocean which includes the Pacific Ocean area bounded by 40° N. latitude, 40° S. latitude, 160° W. longitude and the coastlines of North, Central and South America. Exempt fishery means a foreign com mercial fishing operation determined by the Assistant Administrator to be the source of exports of commercial fish and fish products to the United States and to have a remote likelihood of, or no known, incidental mortality and serious injury of marine mammals in the course of commercial fishing op erations. A commercial fishing oper ation that has a remote likelihood of causing incidental mortality and seri ous injury of marine mammals is one that collectively with other foreign fisheries exporting fish and fish prod ucts to the United States causes the annual removal of: (1) Ten percent or less of any marine mammal stock’s bycatch limit; or (2) More than 10 percent of any ma rine mammal stock’s bycatch limit, yet that fishery by itself removes 1 per cent or less of that stock’s bycatch limit annually; or (3) Where reliable information has not been provided by the harvesting nation on the frequency of incidental mortality and serious injury of marine mammals caused by the commercial fishing operation, the Assistant Ad ministrator may determine whether the likelihood of incidental mortality and serious injury is ‘‘remote’’ by eval uating information concerning factors such as fishing techniques, gear used, methods used to deter marine mam mals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, the species and distribution of marine mammals in the area, or other factors at the discretion of the Assistant Ad ministrator. A foreign fishery will not be classified as an exempt fishery un less the Assistant Administrator has reliable information from the har vesting nation, or other information to support such a finding. Exemption period means the one-time, six-year period that commences Janu ary 1, 2017 and ends December 31, 2022, during which commercial fishing oper ations that are the source of exports of commercial fish and fish products to the United States will be exempt from the prohibitions of § 216.24(h)(1). Export fishery means a foreign com mercial fishing operation determined by the Assistant Administrator to be the source of exports of commercial fish and fish products to the United States and to have more than a remote likelihood of incidental mortality and serious injury of marine mammals (as defined in the definition of an ‘‘exempt fishery’’) in the course of its commer cial fishing operations. Where reliable information has not been provided by the harvesting nation on the frequency of incidental mortality and serious in jury of marine mammals caused by the commercial fishing operation, the As sistant Administrator may determine whether the likelihood of incidental VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00019 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 10 50 CFR Ch. II (10–1–22 Edition) § 216.3 mortality and serious injury is more than ‘‘remote’’ by evaluating informa tion concerning factors such as fishing techniques, gear used, methods used to deter marine mammals, target species, seasons and areas fished, qualitative data from logbooks or fisher reports, stranding data, and the species and dis tribution of marine mammals in the area, or other factors at the discretion of the Assistant Administrator that may inform whether the likelihood of incidental mortality and serious injury of marine mammals caused by the commercial fishing operation is more than ‘‘remote.’’ Commercial fishing op erations not specifically identified in the current List of Foreign Fisheries as either exempt or export fisheries are deemed to be export fisheries until the next List of Foreign Fisheries is pub lished unless the Assistant Adminis trator has reliable information from the harvesting nation to properly clas sify the foreign commercial fishing op eration. Additionally, the Assistant Administrator, may request additional information from the harvesting na tion and may consider other relevant information as set forth in § 216.24(h)(3) about such commercial fishing oper ations and the frequency of incidental mortality and serious injury of marine mammals, to properly classify the for eign commercial fishing operation. Facility means, in the context specific to captive marine mammals,: (1) One or more permanent primary enclosures used to hold marine mammals captive (i.e., pools, lagoons) and associated in frastructure (i.e., equipment and sup plies necessary for the care and main tenance of marine mammals) where these enclosures are either located within the boundaries of a single con tiguous parcel of land and water, or are grouped together within the same gen eral area within which enclosure-to-en closure transport is expected to be completed in less than one hour; or (2) A traveling display/exhibit, where the enclosure(s) and associated infra structure is transported together with the marine mammals. Feeding is offering, giving, or at tempting to give food or non-food items to marine mammals in the wild. It includes operating a vessel or pro viding other platforms from which feeding is conducted or supported. It does not include the routine discard of bycatch during fishing operations or the routine discharge of waste or fish byproducts from fish processing plants or other platforms if the discharge is otherwise legal and is incidental to op eration of the activity. First exporter means the person or company that first exports the fish or fish product, or, in the case of ship ments that are subject to the labeling requirements of 50 CFR part 247 and that only contain fish harvested by vessels of the United States, the first seller of the fish or fish product. Fish and fish product means any ma rine finfish, mollusk, crustacean, or other form of marine life other than marine mammals, reptiles, and birds, whether fresh, frozen, canned, pouched, or otherwise prepared. Fisheries Certificate of Origin, or FCO, means NOAA Form 370, as described in § 216.24(f)(4). Force majeure means forces outside the vessel operator’s or vessel owner’s control that could not be avoided by the exercise of due care. FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et seq. Fur seal means North Pacific fur seal, scientifically known as Callorhinus ursinus. Hard part means any bone, tooth, ba leen, treated pelt, or other part of a marine mammal that is relatively solid or durable. Harvesting nation means the country under whose flag one or more fishing vessels are documented, or which has by formal declaration agreed to assert jurisdiction over one or more certified charter vessels, from which vessel(s) fish are caught that are a part of any cargo or shipment of fish to be im ported into the United States, regard less of any intervening transshipments. Humane means the method of taking, import, export, or other activity which involves the least possible degree of pain and suffering practicable to the animal involved. Import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any place subject to the jurisdiction of the United States, whether or not such VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00020 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 11 National Marine Fisheries Service/NOAA, Commerce § 216.3 landing, bringing, or introduction con stitutes an importation within the Cus toms laws of the United States; except that, for the purpose of any ban on the importation of fish or fish products issued under the authority of 16 U.S.C. 1371(a)(2)(B), the definition of ‘‘import’’ in § 216.24(f)(1)(ii) shall apply. Incidental catch means the taking of a marine mammal (1) because it is di rectly interfering with commercial fishing operations, or (2) as a con sequence of the steps used to secure the fish in connection with commercial fishing operations: Provided, That a marine mammal so taken must imme diately be returned to the sea with a minimum of injury and further, that the taking of a marine mammal, which otherwise meets the requirements of this definition shall not be considered an incidental catch of that mammal if it is used subsequently to assist in commercial fishing operations. Intentional purse seine set means that a tuna purse seine vessel or associated vessels chase marine mammals and subsequently make a purse seine set. Intermediary nation means a nation that imports fish or fish products from a fishery on the List of Foreign Fish eries and re-exports such fish or fish products to the United States. International Dolphin Conservation Program (IDCP) means the inter national program established by the agreement signed in La Jolla, Cali fornia, in June 1992, as formalized, modified, and enhanced in accordance with the Declaration of Panama and the Agreement on the IDCP. International Dolphin Conservation Program Act (IDCPA) means Public Law 105–42, enacted into law on August 15, 1997. International Review Panel (IRP) means the International Review Panel established by the Agreement on the IDCP. Intrusive research means a procedure conducted for bona fide scientific re search involving: A break in or cutting of the skin or equivalent, insertion of an instrument or material into an ori fice, introduction of a substance or ob ject into the animal’s immediate envi ronment that is likely either to be in gested or to contact and directly affect animal tissues (i.e., chemical sub stances), or a stimulus directed at ani mals that may involve a risk to health or welfare or that may have an impact on normal function or behavior (i.e., audio broadcasts directed at animals that may affect behavior). For captive animals, this definition does not in clude: (1) A procedure conducted by the pro fessional staff of the holding facility or an attending veterinarian for purposes of animal husbandry, care, mainte nance, or treatment, or a routine med ical procedure that, in the reasonable judgment of the attending veteri narian, would not constitute a risk to the health or welfare of the captive animal; or (2) A procedure involving either the introduction of a substance or object (i.e., as described in this definition) or a stimulus directed at animals that, in the reasonable judgment of the attend ing veterinarian, would not involve a risk to the health or welfare of the cap tive animal. Label means a display of written, printed, or graphic matter on or affixed to the immediate container of any arti cle. Land or landing means to begin off loading any fish, to arrive in port with the intention of offloading fish, or to cause any fish to be offloaded. Large-scale driftnet means a gillnet that is composed of a panel or panels of webbing, or a series of such gillnets, with a total length of 2.5 kilometers or more that is used on the high seas and allowed to drift with the currents and winds for the purpose of harvesting fish by entangling the fish in the webbing of the net. Level A Harassment means any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild. Level B Harassment means any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of be havioral patterns, including, but not limited to, migration, breathing, nurs ing, breeding, feeding, or sheltering but which does not have the potential to injure a marine mammal or marine mammal stock in the wild. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00021 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 12 50 CFR Ch. II (10–1–22 Edition) § 216.3 List of Foreign Fisheries means the most recent list, organized by har vesting nation, of foreign commercial fishing operations exporting fish or fish products to the United States, that is published in the FEDERAL REGISTER by the Assistant Administrator and that classifies commercial fishing oper ations according to the frequency and likelihood of incidental mortality and serious injury of marine mammals dur ing such commercial fishing operations as either an exempt fishery or an ex port fishery. Longtail tuna means the species Thunnus tonngol. Marine environment means the oceans and the seas, including estuarine and brackish waters. Marine mammal means those speci mens of the following orders, which are morphologically adapted to the marine environment, and whether alive or dead, and any part thereof, including but not limited to, any raw, dressed or dyed fur or skin: Cetacea (whales, dol phins, and porpoises) and Pinnipedia, other than walrus (seals and sea lions). MMPA means the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 et seq. Native village or town means any com munity, association, tribe, band, clan or group. Optimum sustainable population is a population size which falls within a range from the population level of a given species or stock which is the largest supportable within the eco system to the population level that re sults in maximum net productivity. Maximum net productivity is the greatest net annual increment in popu lation numbers or biomass resulting from additions to the population due to reproduction and/or growth less losses due to natural mortality. Per-stock per-year dolphin mortality limit means the maximum allowable number of incidental dolphin mortali ties and serious injuries from a speci fied stock per calendar year, as estab lished under the IDCP. Pregnant means pregnant near term. Pribilovians means Indians, Aleuts, and Eskimos who live on the Pribilof Islands. Principal investigator means the indi vidual primarily responsible for the taking, importation, export, and any related activities conducted under a permit issued for scientific research or enhancement purposes. Public display means an activity that provides opportunities for the public to view living marine mammals at a facil ity holding marine mammals captive. Regional Director means the Regional Administrator, Northeast Regional Of fice, NMFS, One Blackburn Drive, Gloucester, MA 01930; or Regional Ad ministrator, Northwest Regional Of fice, NMFS, 7600 Sandpoint Way, N.E., Building 1, Seattle, WA 98115; or Re gional Administrator, Southeast Re gional Office, NMFS, 9721 Executive Center Drive North, St. Petersburg, FL 33702; or Regional Administrator, Southwest Regional Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802; or Regional Adminis trator, Pacific Islands Regional Office, NMFS, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814; or Regional Administrator, Alaska Regional Office, NMFS, PO Box 21668, Juneau, AK 99802. Rehabilitation means treatment of beached and stranded marine mammals taken under section 109(h)(1) of the MMPA or imported under section 109(h)(2) of the MMPA, with the intent of restoring the marine mammal’s health and, if necessary, behavioral patterns. Secretary shall mean the Secretary of Commerce or his authorized represent ative. Serious injury means any injury that will likely result in mortality. Sexual harassment means any unwel come sexual advance, request for sex ual favors, or other verbal and physical conduct of a sexual nature which has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimi dating, hostile, or offensive working environment. Skipjack tuna means the species Euthynnus (Katsuwonus) pelamis. Soft part means any marine mammal part that is not a hard part. Soft parts do not include urine or fecal material. South Pacific Ocean means any waters of the Pacific Ocean that lie south of the equator. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00022 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 13 National Marine Fisheries Service/NOAA, Commerce § 216.3 South Pacific Tuna Treaty means the Treaty on Fisheries Between the Gov ernments of Certain Pacific Island States and the Government of the United States of America (50 CFR part 300, subpart D). Southern bluefin tuna means the spe cies Thunnus maccoyii. Stranded or stranded marine mammal means a marine mammal specimen under the jurisdiction of the Secretary: (1) If the specimen is dead, and is on a beach or shore, or is in the water within the Exclusive Economic Zone of the United States; or (2) If the specimen is alive, and is on a beach or shore and is unable to re turn to the water, or is in the water within the Exclusive Economic Zone of the United States where the water is so shallow that the specimen is unable to return to its natural habitat under its own power. Subsistence means the use of marine mammals taken by Alaskan Natives for food, clothing, shelter, heating, transportation, and other uses nec essary to maintain the life of the taker or those who depend upon the taker to provide them with such subsistence. Subsistence uses means the customary and traditional uses of fur seals taken by Pribilovians for direct personal or family consumption as food, shelter, fuel, clothing, tools or transportation; for the making and selling of handi craft articles out of nonedible byprod ucts of fur seals taken for personal or family consumption; and for barter, or sharing for personal or family con sumption. As used in this definition— (1) Family means all persons related by blood, marriage, or adoption, or any person living within a household on a permanent basis. (2) Barter means the exchange of fur seals or their parts, taken for subsist ence uses— (i) For other wildlife or fish or their parts, or (ii) For other food or for nonedible items other than money if the ex change is of a limited and noncommer cial nature. Take means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any ma rine mammal. This includes, without limitation, any of the following: The collection of dead animals, or parts thereof; the restraint or detention of a marine mammal, no matter how tem porary; tagging a marine mammal; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molest ing a marine mammal; and feeding or attempting to feed a marine mammal in the wild. Threatened species means a species of marine mammal listed as ‘‘threatened’’ pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93–205. Transboundary stock means a marine mammal stock occurring in the: (1) Exclusive economic zones or terri torial sea of the United States and one or more other coastal States; or (2) Exclusive economic zone or terri torial sea of the United States and on the high seas. Trip means a voyage starting when a vessel leaves port with all fish wells empty of fish and ending when a vessel unloads all of its fish. Tuna means any fish of the genus Thunnus and the species Euthynnus (Katsuwonus) pelamis. Tuna product means any food product processed for retail sale and intended for human or animal consumption that contains an item listed in § 216.24(f)(2)(i) or (ii), but does not in clude perishable items with a shelf life of less than 3 days. Wasteful manner means any taking or method of taking which is likely to re sult in the killing of marine mammals beyond those needed for subsistence, subsistence uses, or for the making of authentic native articles of handicrafts and clothing, or which results in the waste of a substantial portion of the marine mammal and includes, without limitation, the employment of a meth od of taking which is not likely to as sure the capture or killing of a marine mammal, or which is not immediately followed by a reasonable effort to re trieve the marine mammal. U.S. regulatory program means the regulatory program governing the inci dental mortality and serious injury of marine mammals in the course of com mercial fishing operations as specified in the Marine Mammal Protection Act and its implementing regulations. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00023 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 14 50 CFR Ch. II (10–1–22 Edition) § 216.4 Yellowfin tuna means the species Thunnus albacares (synonomy: Neothunnus macropterus). [39 FR 1852, Jan. 15, 1974] EDITORIAL NOTE: For FEDERAL REGISTER ci tations affecting § 216.3, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov. § 216.4 Other laws and regulations. (a) Federal. Nothing in this part, nor any permit issued under authority of this part, shall be construed to relieve a person from any other requirements imposed by a statute or regulation of the United States, including any appli cable statutes or regulations relating to wildlife and fisheries, health, quar antine, agriculture, or customs. (b) State laws or regulations. See part 403 of this chapter. [39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 FR 65134, Dec. 13, 1993] § 216.5 Payment of penalty. The respondent shall have 30 days from receipt of the final assessment de cision within which to pay the penalty assessed. Upon a failure to pay the pen alty, the Secretary may request the Attorney General to institute a civil action in the appropriate United States District Court to collect the penalty. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981] § 216.6 Forfeiture and return of seized property. (a) Whenever any cargo or marine mammal or marine mammal product has been seized pursuant to section 107 of the MMPA, the Secretary shall expe dite any proceedings commenced under these regulations. (b) Whenever a civil penalty has been assessed by the Secretary under these regulations, any cargo, marine mam mal, or marine mammal product seized pursuant to section 107 of the MMPA shall be subject to forfeiture. If re spondent voluntarily forfeits any such seized property or the monetary value thereof without court proceedings, the Secretary may apply the value thereof, if any, as determined by the Secretary, toward payment of the civil penalty. (c) Whenever a civil penalty has been assessed under these regulations, and whether or not such penalty has been paid, the Secretary may request the Attorney General to institute a civil action in an appropriate United States District Court to compel forfeiture of such seized property or the monetary value thereof to the Secretary for dis position by him in such manner as he deems appropriate. If no judicial action to compel forfeiture is commenced within 30 days after final decision making assessment of a civil penalty, pursuant to § 216.60, such seized prop erty shall immediately be returned to the respondent. (d) If the final decision of the Sec retary under these regulations is that respondent has committed no violation of the MMPA or of any permit or regu lations issued thereunder, any marine mammal, marine mammal product, or other cargo seized from respondent in connection with the proceedings under these regulations, or the bond or other monetary value substituted therefor, shall immediately be returned to the respondent. (e) If the Attorney General com mences criminal proceedings pursuant to section 105(b) of the MMPA, and such proceedings result in a finding that the person accused is not guilty of a criminal violation of the MMPA, the Secretary may institute proceedings for the assessment of a civil penalty under this part: Provided, That if no such civil penalty proceedings have been commenced by the Secretary within 30 days following the final dis position of the criminal case, any prop erty seized pursuant to section 107 of the MMPA shall be returned to the re spondent. (f) If any seized property is to be re turned to the respondent, the Regional Director shall issue a letter author izing such return. This letter shall be dispatched to the respondent by reg istered mail, return receipt requested, and shall identify the respondent, the seized property, and, if appropriate, the bailee of the seized property. It shall also provide that upon presentation of the letter and proper identification, the seized property is authorized to be released. All charges for storage, care, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00024 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 15 National Marine Fisheries Service/NOAA, Commerce § 216.12 or handling of the seized property ac cruing 5 days or more after the date of the return receipt shall be for the ac count of the respondent: Provided, That if it is the final decision of the Sec retary under these regulations that the respondent has committed the alleged violation, all charges which have ac crued for the storage, care, or handling of the seized property shall be for the account of the respondent. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994] § 216.7 Holding and bonding. (a) Any marine mammal, marine mammal product, or other cargo seized pursuant to section 107 of the MMPA shall be delivered to the appropriate Regional Director of the National Ma rine Fisheries Service (see § 201.2 of this title) or his designee, who shall either hold such seized property or arrange for the proper handling and care of such seized property. (b) Any arrangement for the handling and care of seized property shall be in writing and shall state the compensa tion to be paid. Subpart F of 15 CFR part 904 contains additional procedures that govern seized property that is sub ject to forfeiture or has been forfeited under the MMPA. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994] § 216.8 Enforcement officers. Enforcement Agents of the National Marine Fisheries Service shall enforce the provisions of the MMPA and may take any actions authorized by the MMPA with respect to enforcement. In addition, the Secretary may utilize, by agreement, the personnel, services, and facilities of any other Federal Agency for the purposes of enforcing this MMPA. Pursuant to the terms of sec tion 107(b) of the MMPA, the Secretary may also designate officers and em ployees of any State or of any posses sion of the United States to enforce the provisions of this MMPA. [39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 59 FR 50375, Oct. 3, 1994] Subpart B—Prohibitions § 216.11 Prohibited taking. Except as otherwise provided in sub parts C, D, and I of this part 216 or in part 228 or 229, it is unlawful for: (a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas, or (b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States, or (c) Any person subject to the juris diction of the United States to take any marine mammal during the mora torium. [39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 FR 21921, May 19, 1989] § 216.12 Prohibited importation. (a) Except as otherwise provided in subparts C and D of this part 216, it is unlawful for any person to import any marine mammal or marine mammal product into the United States. (b) Regardless of whether an importa tion is otherwise authorized pursuant to subparts C and D of this part 216, it is unlawful for any person to import into the United States any: (1) Marine mammal: (i) Taken in violation of the MMPA, or (ii) Taken in another country in vio lation to the laws of that country; (2) Any marine mammal product if (i) The importation into the United States of the marine mammal from which such product is made would be unlawful under paragraph (b)(1) of this section, or (ii) The sale in commerce of such product in the country of origin if the product is illegal. (c) Except in accordance with an ex ception referred to in subpart C and §§ 216.31 (regarding scientific research permits only) and 216.32 of this part 216, it is unlawful to import into the United States any: (1) Marine mammal which was preg nant at the time of taking. (2) Marine mammal which was nurs ing at the time of taking, or less than 8 months old, whichever occurs later. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00025 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