50 CFR § 216.11-216.20 - Regulations governing the taking and importing of marine mammals - Prohibitions

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 16 50 CFR Ch. II (10–1–22 Edition) § 216.13 (3) Specimen of an endangered or threatened species of marine mammal. (4) Specimen taken from a depleted species or stock of marine mammals, or (5) Marine mammal taken in an inhu mane manner. (d) It is unlawful to import into the United States any fish, whether fresh, frozen, or otherwise prepared, if such fish was caught in a manner proscribed by the Secretary of Commerce for per sons subject to the jurisdiction of the United States, whether or not any ma rine mammals were in fact taken inci dent to the catching of the fish. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994] § 216.13 Prohibited uses, possession, transportation, sales, and permits. It is unlawful for: (a) Any person to use any port, har bor or other place under the jurisdic tion of the United States for any pur pose in any way connected with a pro hibited taking or an unlawful importa tion of any marine mammal or marine mammal product; or (b) Any person subject to the juris diction of the United States to possess any marine mammal taken in violation of the MMPA or these regulations, or to transport, sell, or offer for sale any such marine mammal or any marine mammal product made from any such mammal. (c) Any person subject to the juris diction of the United States to use in a commercial fishery, any means or method of fishing in contravention of regulations and limitations issued by the Secretary of Commerce for that fishery to achieve the purposes of this MMPA. (d) Any person to violate any term, condition, or restriction of any permit issued by the Secretary. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996] § 216.14 Marine mammals taken before the MMPA. (a) Section 102(e) of the MMPA pro vides, in effect, that the MMPA shall not apply to any marine mammal taken prior to December 21, 1972, or to any marine mammal product, con sisting of or composed in whole or in part of, any marine mammal taken be fore that date. This prior status of any marine mammal or marine mammal product may be established by submit ting to the Director, National Marine Fisheries Service prior to, or at the time of importation, an affidavit con taining the following: (1) The Affiant’s name and address; (2) Identification of the Affiant; (3) A description of the marine mam mals or marine mammal products which the Affiant desires to import; (4) A statement by the Affiant that, to the best of his knowledge and belief, the marine mammals involved in the application were taken prior to Decem ber 21, 1972; (5) A statement by the Affiant in the following language: The foregoing is principally based on the attached exhibits which, to the best of my knowledge and belief, are complete, true and correct. I understand that this affidavit is being submitted for the purpose of inducing the Federal Government to permit the im portation of—under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and regulations promulgated there under, and that any false statements may subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of 1972. (b) Either one of two exhibits shall be attached to such affidavit, and will contain either: (1) Records or other available evi dence showing that the product con sists of or is composed in whole or in part of marine mammals taken prior to the effective date of the MMPA. Such records or other evidentiary material must include information on how, when, where, and by whom the animals were taken, what processing has taken place since taking, and the date and lo cation of such processing; or (2) A statement from a government agency of the country of origin exer cising jurisdiction over marine mam mals that any and all such mammals from which the products sought to be imported were derived were taken prior to December 21, 1972. (c) No pre-Act marine mammal or pre-Act marine mammal product may be imported unless the requirements of this section have been fulfilled. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00026 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 17 National Marine Fisheries Service/NOAA, Commerce § 216.18 (d) This section has no application to any marine mammal or marine mam mal product intended to be imported pursuant to §§ 216.21, 216.31 or § 216.32. [39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994] § 216.15 Depleted species. The following species or population stocks have been designated by the As sistant Administrator as depleted under the provisions of the MMPA. (a) Hawaiian monk seal (Monachus schauinslandi). (b) Bowhead whale (Balaena mysticetus). (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island population. (d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock along the U.S. mid-Atlantic coast. (e) Eastern spinner dolphin (Stenella longirostris orientalis). (f) Northeastern offshore spotted dol phin (Stenella attenuata). (g) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus leucas). The stock includes all beluga whales occurring in waters of the Gulf of Alas ka north of 58° North latitude includ ing, but not limited to, Cook Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince William Sound, Yakutat Bay, Shelikof Strait, and off Kodiak Is land and freshwater tributaries to these waters. (h) Eastern North Pacific Southern Resident stock of killer whales (Orcinus orca). The stock includes all resident killer whales in pods J, K, and L in the waters of, but not limited to, the inland waterways of southern Brit ish Columbia and Washington, includ ing the Georgia Strait, the Strait of Juan de Fuca, and Puget Sound. (i) AT1 stock of killer whales (Orcinus orca). The stock includes all killer whales belonging to the AT1 group of transient killer whales occur ring primarily in waters of Prince Wil liam Sound, Resurrection Bay, and the Kenai Fjords region of Alaska. (j) Sakhalin Bay-Nikolaya Bay-Amur River beluga whales (Delphinapterus leucas). The stock includes all beluga whales primarily occurring in, but not limited to, waters of Sakhalin Bay, Nikolaya Bay, and Amur River in the Sea of Okhotsk. [53 FR 17899, May 18, 1988, as amended at 58 FR 17791, Apr. 6, 1993; 58 FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Oct. 3, 1994; 65 FR 34597, May 31, 2000; 68 FR 31983, May 29, 2003; 69 FR 31324, June 3, 2004; 81 FR 74719, Oct. 27, 2016] § 216.16 Prohibitions under the Gen eral Authorization for Level B har assment for scientific research. It shall be unlawful for any person to: (a) Provide false information in a let ter of intent submitted pursuant to § 216.45(b); (b) Violate any term or condition im posed pursuant to § 216.45(d). [59 FR 50376, Oct. 3, 1994] § 216.17 General prohibitions. It is unlawful for any person to: (a) Assault, resist, oppose, impede, intimidate, threaten, or interfere with any authorized officer in the conduct of any search, inspection, investigation or seizure in connection with enforcement of the MMPA, DPCIA, or IDCPA. (b) Interfere with, delay, or prevent by any means the apprehension of an other person, knowing that such person has committed any act prohibited by the MMPA. (c) Resist a lawful arrest for any act prohibited under the MMPA. (d) Make any false statement, oral or written, to an authorized officer con cerning any act under the jurisdiction of the MMPA, DPCIA, IDCPA, or at tempt to do any of the above. (e) Interfere with, obstruct, delay, or prevent by any means an investigation, search, seizure, or disposition of seized property in connection with enforce ment of the MMPA, DPCIA, or IDCPA. [70 FR 19008, Apr. 12, 2005] § 216.18 Approaching humpback whales in Alaska. (a) Prohibitions. Except as provided under paragraph (b) of this section, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to so licit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of Alaska, or within inland waters of the state, any of the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00027 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 18 50 CFR Ch. II (10–1–22 Edition) § 216.19 acts in paragraphs (a)(1) through (a)(3) of this section with respect to hump back whales (Megaptera novaeangliae): (1) Approach, by any means, includ ing by interception (i.e., placing a ves sel in the path of an oncoming hump back whale so that the whale surfaces within 100 yards (91.4 m) of the vessel), within 100 yards (91.4 m) of any hump back whale; (2) Cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale; or (3) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; es cape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming pat terns; interruptions of breeding, nurs ing, or resting activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movement; or the abandonment of a previously fre quented area. (b) Exceptions. The following excep tions apply, but any person who claims the applicability of an exception has the burden of proving that the excep tion applies: (1) Paragraph (a) of this section does not apply if an approach is authorized by the National Marine Fisheries Serv ice through a permit issued under sub part D of this part (Special Exceptions) or through a similar authorization. (2) Paragraph (a) of this section does not apply to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply with paragraph (a) of this sec tion. (3) Paragraph (a) of this section does not apply to commercial fishing vessels lawfully engaged in actively setting, retrieving or closely tending commer cial fishing gear. For purposes of this section, commercial fishing means tak ing or harvesting fish or fishery re sources to sell, barter, or trade. Com mercial fishing does not include com mercial passenger fishing operations (i.e., charter operations or sport fishing activities). (4) Paragraph (a) of this section does not apply to state, local, or Federal government vessels operating in the course of official duty. (5) Paragraph (a) of this section does not affect the rights of Alaska Natives under 16 U.S.C. 1539(e). (6) This section shall not take prece dence over any more restrictive con flicting Federal regulation pertaining to humpback whales, including the reg ulations at 36 CFR 13.1102–13.1188 that pertain specifically to the waters of Glacier Bay National Park and Pre serve. (c) General measures. Notwithstanding the prohibitions and exceptions in paragraphs (a) and (b) of this section, to avoid collisions with humpback whales, vessels must operate at a slow, safe speed when near a humpback whale. ‘‘Safe speed’’ has the same meaning as the term is defined in 33 CFR 83.06 and the International Regu lations for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect to avoiding collisions with humpback whales. [81 FR 62020, Sept. 8, 2016] § 216.19 Special restrictions for hump back whales in waters surrounding the islands of Hawaii. (a) Prohibitions. Except as noted in paragraph (b) of this section, it is un lawful for any person subject to the ju risdiction of the United States to com mit, to attempt to commit, to solicit another to commit, or to cause to be committed, within 200 nautical miles (370.4 km) of the islands of Hawaii, any of the following acts with respect to humpback whales (Megaptera novaeangliae): (1) Operate any aircraft within 1,000 feet (304.8 m) of any humpback whale; (2) Approach, by any means, within 100 yards (91.4 m) of any humpback whale; (3) Cause a vessel, person, or other object to approach within 100 yards (91.4 m) of a humpback whale; (4) Approach a humpback whale by interception (i.e., placing an aircraft, vessel, person, or other object in the path of a humpback whale so that the whale approaches within 1,000 feet (304.8 m) of the aircraft or 100 yards VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00028 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 19 National Marine Fisheries Service/NOAA, Commerce § 216.20 (91.4 m) of the vessel, person, or ob ject); or (5) Disrupt the normal behavior or prior activity of a whale by any other act or omission. A disruption of normal behavior may be manifested by, among other actions on the part of the whale, a rapid change in direction or speed; es cape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming pat terns; interruptions of breeding, nurs ing, or resting activities, attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movements; or the abandonment of a previously fre quented area. (b) Exceptions. The prohibitions of paragraph (a) of this section do not apply to: (1) Federal, State, or local govern ment vessels or persons operating in the course of their official duties such as law enforcement, search and rescue, or public safety; (2) Vessel operations necessary to avoid an imminent and serious threat to a person, vessel, or the environment; (3) Vessels restricted in their ability to maneuver, and because of this re striction are not able to comply with approach restrictions; or (4) Vessels or persons authorized under permit or authorization issued by NMFS to conduct scientific research or response efforts that may result in taking of humpback whales. (c) Affirmative defense. (1) In connec tion with any action alleging a viola tion of this section, any person claim ing the benefit of any exemption, ex ception, or permit listed in paragraph (b) of this section has the burden of proving that the exemption or excep tion is applicable, or that the permit was granted and was valid and in force at the time of the alleged violation. (2) [Reserved] [81 FR 62017, Sept. 8, 2016] § 216.20 Special restrictions for Hawai ian spinner dolphins. (a) Applicability. The following spe cial restrictions designed to protect Hawaiian Spinner Dolphins apply: (1) In all waters within 2 nautical miles (nmi) of the main Hawaiian Is lands, and (2) In all waters bounded by the is lands of Lāna‘i, Maui, and Kaho‘olawe enclosed by 3 line segments that con nect points on the 2-nmi boundary be tween the islands as follows: The straight line between 20°32′51″ N/ 156°43′50″ W (Kaho‘olawe) and 20°42′4″ N/ 156°55′34″ W (Lāna‘i), the straight line between 20°51′1″ N/156°54′0″ W (Lāna‘i) and 20°59′48″ N/156°42′28″ W (Maui), and the straight line between 20°33′55″ N/ 156°26′43″ W (Maui) and 20°32′15″ N/ 156°29′51″ W (Kaho‘olawe) (all coordi nates referenced to The World Geodetic System of 1984 (WGS 84)). TABLE 1 TO PARAGRAPH (a)(2)—COORDINATES FOR THE EXTENT OF THE DESIGNATED WATERS BOUNDED BY LĀNA‘I, MAUI, AND KAHO‘OLAWE * [All coordinates referenced to The World Geodetic System of 1984 (WGS 84).] Line segment between islands Figure 3 label Latitude Longitude Kaho‘olawe and Lāna‘i .................................................. A1 20°32′51″ N 156°43′50″ W A2 20°42′4″ N 156°55′34″ W Lāna‘i and Maui ............................................................. B1 20°51′1″ N 156°54′0″ W B2 20°59′48″ N 156°42′28″ W Maui and Kaho‘olawe .................................................... C1 20°33′55″ N 156°26′43″ W C2 20°32′15″ N 156°29′51″ W * (see Figure 3 of this section). (b) Prohibitions. Except as noted in paragraph (c) of this section, it is un lawful for any person subject to the ju risdiction of the United States to com mit, to attempt to commit, to solicit another to commit, or to cause to be committed any of the following: (1) Approach or remain within 50 yards (45.7 m) of a Hawaiian spinner dolphin by any means; (2) Swim within 50 yards (45.7 m) of a Hawaiian spinner dolphin; (3) Cause a vessel, person, or other object to approach or remain within 50 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00029 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 20 50 CFR Ch. II (10–1–22 Edition) § 216.20 yards (45.7 m) of a Hawaiian spinner dolphin; or (4) Intercept or place a vessel, person, or other object in the path of a Hawai ian spinner dolphin so that the dolphin approaches within 50 yards (45.7 m) of the vessel, person, or object. (c) Exceptions. The prohibitions of paragraph (b) of this section do not apply to: (1) Any person who inadvertently comes within 50 yards (45.7 m) of a Ha waiian spinner dolphin or is ap proached by a spinner dolphin, pro vided the person makes no effort to en gage or pursue the animal and takes immediate steps to move away from the animal; (2) Any vessel that is underway and is approached by a Hawaiian spinner dol phin, provided the vessel continues normal navigation and makes no effort to engage or pursue the animal. For purposes of this exception, a vessel is defined as a watercraft or other artifi cial contrivance used, or capable of being used, as a means of transpor tation on water (1 U.S.C. 3); a vessel is underway if it is not made fast to the shore, at anchor, or aground; (3) Any vessel transiting to or from a port, harbor, or in a restricted channel when a 50-yard (45.7 m) distance will not allow the vessel to maintain safe navigation; (4) Vessel operations necessary to avoid an imminent and serious threat to a person or vessel; (5) Any vessel that is anchored or aground and is approached by a Hawai ian spinner dolphin, provided the vessel makes no effort to engage or pursue the animal; (6) Activities authorized through a permit or authorization issued by the National Marine Fisheries Service to take Hawaiian spinner dolphins; (7) Federal, State, or local govern ment vessels, aircraft, personnel, and assets when necessary in the course of performing official duties; (8) Commercial fishing vessels that incidentally take spinner dolphins dur ing the course of commercial fishing operations, provided such vessels oper ate in compliance with a valid marine mammal authorization in accordance with MMPA section 118(c). (d) Affirmative defense. In connection with any action alleging a violation of this section, any person claiming the benefit of any exemption, exception, or permit listed in paragraph (c) of this section has the burden of proving that the exemption or exception is applica ble, or that the permit was granted and was valid and in force at the time of the alleged violation. (e) Maps of areas for Hawaiian spinner dolphin special restrictions. The fol lowing are overview maps and a table with corresponding coordinate data for the areas for Hawaiian spinner dolphin special restriction. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00030 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 21 National Marine Fisheries Service/NOAA, Commerce ยง 216.20 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00031 Fmt 8010 Sfmt 8006 Q:\50\50V10.TXT PC31 E R 28 S E 21 .0 02 < /G P H > sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 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