50 CFR § 216.90-216.95 - Regulations governing the taking and importing of marine mammals - Dolphin Safe Tuna Labelling

76 50 CFR Ch. II (10–1–22 Edition) § 216.90 (5) Permission to utilize the Pribilof Islands to conduct an approved re search program may be revoked by the Director, Pribilof Islands Program at any time for noncompliance with any terms and conditions, or for violations of any regulation or administrative procedure in effect on the Pribilof Is lands. [43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996] Subpart H—Dolphin Safe Tuna Labeling AUTHORITY: 16 U.S.C. 1385. § 216.90 Purposes. This subpart governs the require ments for using the official mark de scribed in § 216.95 or an alternative mark that refers to dolphins, porpoises, or marine mammals, to label tuna or tuna products offered for sale in or ex ported from the United States using the term dolphin-safe or suggesting the tuna were harvested in a manner not injurious to dolphins. [69 FR 55307, Sept. 13, 2004] § 216.91 Dolphin-safe labeling stand ards. (a) It is a violation of Section 5 of the Federal Trade Commission Act (15 U.S.C. 45) for any producer, importer, exporter, wholesaler/distributor, or seller of any tuna products that are ex ported from or offered for sale in the United States to include on the label of those products the term ‘‘dolphin-safe’’ or any other term or symbol that claims or suggests that the tuna con tained in the products were harvested using a method of fishing that is not harmful to dolphins if the products contain tuna harvested: (1) ETP large purse seine vessel. In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) carrying capacity unless: (i) The documentation requirements for dolphin-safe tuna under §§ 216.92 and 216.93 are met; (ii) No dolphins were killed or seri ously injured during the sets in which the tuna were caught; and (iii) None of the tuna were caught on a trip using a purse seine net inten tionally deployed on or to encircle dol phins, provided that this paragraph (a)(1)(iii) will not apply if the Assistant Administrator publishes a notification in the FEDERAL REGISTER announcing a finding under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse seine nets on or encirclement of dol phins is not having a significant ad verse impact on any depleted stock. (2) Driftnet. By a vessel engaged in large-scale driftnet fishing; or (3) Other fisheries. By a vessel in a fishery other than one described in paragraph (a)(1) or (2) of this section unless such product is accompanied as described in § 216.93(d), (e), or (f), as ap propriate, by: (i) For tuna caught in a purse seine fishery outside the ETP by a vessel on a fishing trip that began before July 13, 2013, a written statement executed by the Captain of the vessel certifying that no purse seine net was inten tionally deployed on or used to encircle dolphins during the particular trip on which the tuna was harvested. (ii) For tuna caught by a vessel on a fishing trip that began on or after July 13, 2013, and before May 21, 2016, a writ ten statement executed by the Captain of the vessel certifying: (A) For a purse seine vessel outside the ETP, that no purse seine net was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seri ously injured in the sets in which the tuna were caught; (B) For a vessel other than one de scribed in paragraph (a)(3)(ii)(A) of this section, that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. (iii) For tuna caught by a vessel on a fishing trip that began on or after May 21, 2016, a written statement executed by the Captain of the vessel certifying that: (A) No purse seine net or other fish ing gear was intentionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00086 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 77 National Marine Fisheries Service/NOAA, Commerce § 216.91 (B) The Captain of the vessel has completed the NMFS Tuna Tracking and Verification Program dolphin-safe captain’s training course. The NMFS Tuna Tracking and Verification Pro gram dolphin-safe captain’s training course is available on the website of the NMFS Tuna Tracking and Verification Program at https:// www.fisheries.noaa.gov/dolphin-safe. (iv) For tuna caught in a fishery where the Assistant Administrator has determined that observers partici pating in a national or international observer program are qualified and au thorized to issue observer statements for purposes of the dolphin-safe label ing program, and where such an ob server is on board the vessel, a written statement executed by the observer, or by an authorized representative of a nation participating in the observer program based on information from the observer. Any determination by the As sistant Administrator shall be an nounced in a notice published in the FEDERAL REGISTER. Determinations under this paragraph (a)(3)(iv) will also be publicized on the website of the NMFS Tuna Tracking and Verification Program (https://www.fisheries.noaa.gov/ dolphin-safe). The written statement shall certify: (A) That no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught; and, (B) In purse seine fisheries, that no purse seine net was intentionally de ployed on or used to encircle dolphins during the trip on which the tuna were caught. (v) For tuna caught in a fishery in which the Assistant Administrator has determined that either a regular and significant association between dol phins and tuna (similar to the associa tion between dolphins and tuna in the ETP) or a regular and significant mor tality or serious injury of dolphins is occurring, a written statement, exe cuted by the Captain of the vessel and an observer participating in a national or international program acceptable to the Assistant Administrator, unless the Assistant Administrator deter mines an observer statement is unnec essary. Determinations under this paragraph (a)(3)(v) will also be pub licized on the website of the NMFS Tuna Tracking and Verification Pro gram (https://www.fisheries.noaa.gov/dol phin-safe). The written statement shall certify that: (A) No fishing gear was intentionally deployed on or used to encircle dol phins during the trip on which the tuna were caught; (B) No dolphins were killed or seri ously injured in the sets or other gear deployments in which the tuna were caught; and (C) Any relevant requirements of paragraph (a)(4) of this section were complied with during the trip on which the tuna were caught. (4) Other fisheries—segregation. In a fishery other than one described in paragraph (a)(1) or (2) of this section on a fishing trip that began on or after July 13, 2013 unless the tuna caught in sets or gear deployments designated as dolphin-safe was stored physically sep arate from tuna caught in a non-dol phin-safe set or other gear deployment by the use of netting, other material, or separate storage areas from the time of capture through unloading. If tuna caught in a set or other gear deploy ment where a dolphin was killed or se riously injured is not stored physically separate from dolphin-safe tuna as stated in § 216.93(c)(2)(i) or (c)(3)(i), as applicable, all tuna inside the storage well or other storage location shall be considered non-dolphin-safe. (5) Other fisheries—chain of custody recordkeeping. By a vessel in a fishery other than one described in paragraph (a)(1) or (2) of this section unless: (i) For tuna designated dolphin-safe that was harvested on a fishing trip that began on or after May 21, 2016, in addition to any other applicable re quirements: (A) The importer of record or U.S. processor of tuna or tuna products, as applicable, maintains information on the complete chain of custody, includ ing storage facilities, transshippers, processors, re-processors, and whole salers/distributors to enable dolphin safe tuna to be distinguished from non dolphin-safe tuna from the time it is caught to the time it is ready for retail sale; (B) The importer of record or the U.S. processor, as appropriate, ensures VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00087 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 78 50 CFR Ch. II (10–1–22 Edition) § 216.92 that information is readily available to NMFS upon request to allow it to trace any non-dolphin-safe tuna loaded onto the vessel back to one or more storage wells or other storage locations for a particular fishing trip and to show that such non-dolphin-safe tuna was kept physically separate from dolphin-safe tuna through unloading. (ii) For tuna designated dolphin-safe that was harvested in a fishery about which the Assistant Administrator made a determination under paragraph (a)(3)(v) of this section, and harvested on a fishing trip that begins on or after 60 days after the date of the FEDERAL REGISTER notice of that determination, the tuna or tuna products are accom panied by valid documentation signed by a representative of the vessel flag nation or the processing nation (if processed in another nation) certifying that: (A) The catch documentation is cor rect; (B) The tuna or tuna products meet the dolphin-safe labeling standards under this section; and (C) The chain of custody information is correct. (iii) The information referred to in paragraphs (a)(5)(i) and (ii) of this sec tion is maintained at the place of busi ness of the importer of record or the U.S. processor, as applicable, for a pe riod of 2 years from the date of the im port or receipt, and be made available to NMFS for inspection upon request. (b) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in this section in a campaign or effort to mislead or de ceive consumers about the level of pro tection afforded dolphins under the IDCP. (c) A tuna product that is labeled with the official mark, described in § 216.95, may not be labeled with any other label or mark that refers to dol phins, porpoises, or marine mammals. [81 FR 15448, Mar. 23, 2016, as amended at 81 FR 15449, Mar. 23, 2016; 83 FR 3626, Jan. 26, 2018] § 216.92 Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels. (a) U.S. vessels. Tuna products that contain tuna harvested by U.S. flag purse seine vessels of greater than 400 st (362.8 mt) carrying capacity in the ETP may be labeled dolphin-safe only if the following requirements are met: (1) Tuna Tracking Forms containing a complete record of all the fishing ac tivities on the trip, certified by the vessel Captain and the observer, are submitted to the Administrator, Southwest Region, at the end of the fishing trip during which the tuna was harvested; (2) The tuna is delivered for proc essing to a U.S. tuna processor in a plant located in one of the 50 states, Puerto Rico, or American Samoa that is in compliance with the tuna track ing and verification requirements of § 216.93; and (3) The tuna or tuna products meet the dolphin-safe labeling standards under § 216.91. (b) Imported tuna. (1) Yellowfin tuna or tuna products harvested in the ETP by vessels of greater than 400 st (362.8 mt) carrying capacity and presented for import into the United States may be labeled dolphin-safe only if the yel lowfin tuna was harvested by a U.S. vessel fishing in compliance with the requirements of the IDCP and applica ble U.S. law, or by a vessel belonging to a nation that has obtained an af firmative finding under § 216.24(f)(8). (2) Tuna or tuna products, other than yellowfin tuna, harvested in the ETP by purse seine vessels of greater than 400 st (362.8 mt) carrying capacity and presented for import into the United States may be labeled dolphin-safe only if: (i) The tuna was harvested by a U.S. vessel fishing in compliance with the requirements of the IDCP and applica ble U.S. law, or by a vessel belonging to a nation that is a Party to the Agreement on the IDCP or has applied to become a Party and is adhering to all the requirements of the Agreement on the IDCP Tuna Tracking and Verification Plan; (ii) The tuna or tuna products are ac companied as described in § 216.24(f)(3) by a properly completed FCO; and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00088 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 79 National Marine Fisheries Service/NOAA, Commerce § 216.93 (iii) The tuna or tuna products are accompanied as described in § 216.24(f)(3) by valid documentation signed by a representative of the appro priate IDCP member nation, con taining the harvesting vessel names and tuna tracking form numbers rep resented in the shipment, and certi fying that: (A) There was an IDCP approved ob server on board the vessel(s) during the entire trip(s); and (B) The tuna contained in the ship ment were caught according to the dol phin-safe labeling standards of § 216.91. [69 FR 55307, Sept. 13, 2004, as amended at 74 FR 1617, Jan. 13, 2009] § 216.93 Tracking and verification pro gram. The Administrator, Southwest Re gion, has established a national track ing and verification program to accu rately document the dolphin-safe con dition of tuna, under the standards set forth in §§ 216.91 and 216.92. The track ing program includes procedures and reports for use when importing tuna into the United States and during U.S. fishing, processing, and marketing in the United States and abroad. Verification of tracking system oper ations is attained through the estab lishment of audit and document review requirements. The tracking program is consistent with the international tuna tracking and verification program adopted by the Parties to the Agree ment on the IDCP. (a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine vessel of greater than 400 st (362.8 mt) carrying capacity fishes in the ETP, IDCP ap proved Tuna Tracking Forms (TTFs), bearing a unique number assigned to that trip, are used by the observer to record every set made during that trip. One TTF is used to record dolphin-safe sets and a second TTF is used to record non-dolphin-safe sets. The information entered on the TTFs following each set includes the date, well number, weights by species composition, estimated tons loaded, and additional notes, if any. The observer and the vessel engineer initial the entry as soon as possible fol lowing each set, and the vessel captain and observer review and sign both TTFs at the end of the fishing trip cer tifying that the information on the forms is accurate. TTFs are confiden tial official documents of the IDCP, consistent with Article XVIII of the Agreement on the IDCP, and the Agreement on the IDCP Rules of Con fidentiality. (b) Dolphin-Safe Certification. Upon re quest, the Office of the Administrator, Southwest Region, will provide written certification that tuna harvested by U.S. purse seine vessels greater than 400 st (362.8 mt) carrying capacity is dolphin-safe, but only if NMFS’ review of the TTFs for the subject trip shows that the tuna for which the certifi cation is requested is dolphin-safe under the requirements of the Agree ment on the IDCP and U.S. law. (c) Tracking fishing operations. (1) ETP large purse seine vessel. In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) carrying capacity: (i) During fishing trips, any part of which included fishing in the ETP, by purse seine vessels greater than 400 st (362.8 mt) carrying capacity, tuna caught in sets designated as dolphin safe by the vessel observer must be stored separately from tuna caught in non-dolphin-safe sets from the time of capture through unloading. Vessel per sonnel will decide into which wells tuna will be loaded. The observer will initially designate whether each set is dolphin-safe or not, based on his/her observation of the set. The observer will initially identify a vessel fish well as dolphin-safe if the first tuna loaded into the well during a trip was cap tured in a set in which no dolphin died or was seriously injured. The observer will initially identify a vessel fish well as non-dolphin-safe if the first tuna loaded into the well during a trip was captured in a set in which a dolphin died or was seriously injured. Any tuna loaded into a well previously des ignated non-dolphin-safe is considered non-dolphin-safe tuna. The observer will change the designation of a dol phin-safe well to non-dolphin-safe if any tuna are loaded into the well that were captured in a set in which a dol phin died or was seriously injured. (ii) The captain, managing owner, or vessel agent of a U.S. purse seine vessel greater than 400 st (362.8 mt) returning to port from a trip, any part of which VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00089 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 80 50 CFR Ch. II (10–1–22 Edition) § 216.93 included fishing in the ETP, must pro vide at least 48 hours’ notice of the ves sel’s intended place of landing, arrival time, and schedule of unloading to the Administrator, Southwest Region. (iii) If the trip terminates when the vessel enters port to unload part or all of its catch, new TTFs will be assigned to the new trip, and any information concerning tuna retained on the vessel will be recorded as the first entry on the TTFs for the new trip. If the trip is not terminated following a partial un loading, the vessel will retain the original TTFs and submit a copy of those TTFs to the Administrator, Southwest Region, within 5 working days. In either case, the species and amount unloaded will be noted on the respective originals. (iv) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identifica tion of the dolphin-safe or non-dolphin safe designation of the tuna as it left the fishing vessel. (v) The handling of TTFs and the tracking and verification of tuna caught in the Convention Area by a U.S. purse seine vessel greater than 400 st (362.8 mt) carrying capacity shall be conducted consistent with the inter national tuna tracking and verification program adopted by the Parties to the Agreement on the IDCP. (2) Purse seine vessel other than ETP large purse seine vessel. This paragraph (c)(2) applies to tuna product labeled dolphin-safe that includes tuna har vested on a fishing trip that began on or after July 13, 2013, in the ETP by a purse seine vessel of 400 st (362.8 mt) or less carrying capacity or by a purse seine vessel outside the ETP of any carrying capacity. (i) Tuna caught in sets designated as dolphin-safe must be stored separately from tuna caught in non-dolphin-safe sets from the time of capture through unloading. Tuna caught in sets where a dolphin died or was seriously injured must be stored in a well designated as non-dolphin-safe by the captain or, where applicable, by a qualified and au thorized observer under § 216.91. Any tuna loaded into a well previously des ignated non-dolphin-safe is considered non-dolphin-safe tuna. The captain or, where applicable, a qualified and au thorized observer under § 216.91, will change the designation of a dolphin safe well to non-dolphin-safe if any tuna are loaded into the well that were captured in a set in which a dolphin died or was seriously injured. If a purse seine vessel has only one well used to store tuna, dolphin-safe tuna must be kept physically separate from non-dol phin-safe tuna by using netting or other material. If a purse seine vessel has more than one well used to store tuna, all tuna inside a well shall be considered non-dolphin-safe, if at any time non-dolphin-safe tuna is loaded into the well, regardless of the use of netting or other material inside the well. (ii) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identifica tion of the dolphin-safe or non-dolphin safe designation of the tuna as it left the fishing vessel. (3) Other vessels. This paragraph (c)(3) applies to tuna product labeled dol phin-safe that includes tuna harvested by a vessel on a fishing trip that began on or after July 13, 2013 other than ones described in paragraphs (c)(1) or (2) of this section: (i) Tuna caught in sets or other gear deployments designated as dolphin-safe must be stored separately from tuna caught in non-dolphin-safe sets or other gear deployments from the time of capture through unloading. Dolphin safe tuna must be kept physically sepa rate from non-dolphin-safe tuna by using netting, other material, or sepa rate storage areas. The captain or, where applicable, a qualified and au thorized observer under § 216.91, must designate the storage areas for dolphin safe and non-dolphin-safe tuna. (ii) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identifica tion of the dolphin-safe or non-dolphin safe designation of the tuna as it left the fishing vessel. (d) Tracking cannery operations. (1) Whenever a U.S. tuna canning com pany in the 50 states, Puerto Rico, or American Samoa receives a domestic VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00090 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 81 National Marine Fisheries Service/NOAA, Commerce § 216.93 or imported shipment of tuna for proc essing, a NMFS representative may be present to monitor delivery and verify that dolphin-safe and non-dolphin-safe tuna are clearly identified and remain segregated. Such inspections may be scheduled or unscheduled, and canners must allow the NMFS representative access to all areas and records. (2) Tuna processors must submit a re port to the Administrator, Southwest Region, of all tuna received at their processing facilities in each calendar month whether or not the tuna is actu ally canned or stored during that month. Monthly cannery receipt re ports must be submitted electronically or by mail before the last day of the month following the month being re ported. Monthly reports must contain the following information: (i) Domestic receipts: whether the tuna is eligible to be labeled dolphin-safe under § 216.91, species, condition (round, loin, dressed, gilled and gutted, other), weight in short tons to the fourth dec imal, ocean area of capture (ETP, west ern Pacific, Indian, eastern and west ern Atlantic, other), catcher vessel, gear type, trip dates, carrier name, un loading dates, and location of unload ing. Where the processor indicates the tuna is eligible to be labeled dolphin safe under § 216.91, it must enclose the certifications required by that section. (ii) Import receipts: In addition to the information required in paragraph (d)(2)(i) of this section, a copy of the FCO for each imported receipt must be provided. (3) Tuna processors must report on a monthly basis the amounts of ETP caught tuna that were immediately utilized upon receipt or removed from cold storage. This report may be sub mitted in conjunction with the month ly report required in paragraph (d)(2) of this section. This report must contain: (i) The date of removal from cold storage or disposition; (ii) Storage container or lot identi fier number(s) and dolphin-safe or non dolphin-safe designation of each con tainer or lot; and (iii) Details of the disposition of fish (for example, canning, sale, rejection, etc.). (4) During canning activities, non dolphin-safe tuna may not be mixed in any manner or at any time during processing with any dolphin-safe tuna or tuna products and may not share the same storage containers, cookers, con veyers, tables, or other canning and la beling machinery. (e) Tracking processor operations other than cannery operations. U.S. tuna proc essors other than cannery operations engaged in processing tuna products, including frozen, dried, or smoked tuna products, must submit a report to the Administrator, Southwest Region that includes the information set out in § 216.93(d)(2) and (3) on a monthly basis for all tuna received at their processing facilities that will be included in any tuna product labeled dolphin-safe. (f) Tracking imports. All tuna prod ucts, except fresh tuna, that are im ported into the United States must be accompanied as described in § 216.24(f)(3) by a properly certified FCO as required by § 216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated certifications and state ments must be submitted by the im porter of record to U.S. Customs and Border Protection as described in and required by § 216.24(f)(2). (g) Verification requirements. (1) Record maintenance. Any exporter, transshipper, importer, processor, or wholesaler/distributor of any tuna or tuna products must maintain records related to that tuna for at least 2 years. These records include, but are not limited to: FCOs and required cer tifications, any reports required in paragraphs (a), (b), (d) and (e) of this section, invoices, other import docu ments, and trip reports. (2) Record submission. At the time of, or in advance of, importation of a ship ment of tuna or tuna products, any im porter of tuna or tuna products must submit all corresponding FCOs and re quired certifications and statements for those tuna or tuna products as re quired by § 216.24(f)(2). (3) Audits and spot checks. Upon re quest of the Administrator, Southwest Region, any exporter, transshipper, im porter, processor, or wholesaler/dis tributor of tuna or tuna products must provide the Administrator, Southwest Region, timely access to all pertinent VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00091 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 82 50 CFR Ch. II (10–1–22 Edition) § 216.94 records and facilities to allow for au dits and spot-checks on caught, landed, stored, and processed tuna. (h) Confidentiality of proprietary infor mation. Information submitted to the Assistant Administrator under this section will be treated as confidential in accordance with NOAA Administra tive Order 216–100 ‘‘Protection of Con fidential Fisheries Statistics.’’ [78 FR 41002, July 9, 2013, as amended at 81 FR 51133, Aug. 3, 2016] § 216.94 False statements or endorse ments. Any person who knowingly and will fully makes a false statement or false endorsement required by § 216.92 is lia ble for a civil penalty not to exceed $100,000, that may be assessed in an ac tion brought in any appropriate Dis trict Court of the United States on be half of the Secretary. [61 FR 27794, June 3, 1996. Redesignated at 69 FR 55307, Sept. 13, 2004] § 216.95 Official mark for ‘‘Dolphin safe’’ tuna products. (a) This is the ‘‘official mark’’ (see figure 1) designated by the United States Department of Commerce that may be used to label tuna products that meet the ‘‘dolphin-safe’’ standards set forth in the Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and implementing regulations at §§ 216.91 through 216.94: VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00092 Fmt 8010 Sfmt 8006 Q:\50\50V10.TXT PC31 E R 30 M Y 00 .0 19 < /G P H > sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 83 National Marine Fisheries Service/NOAA, Commerce § 216.103 (b) Location and size of the official mark. The official mark on labels must allow the consumer to identify the offi cial mark and be similar in design and scale to figure 1. A full color version of the official mark is available at https:// www.fisheries.noaa.gov/national/marine mammal-protection/dolphin-safe-official mark. [65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004, as amended at 83 FR 3626, Jan. 26, 2018] Subpart I—General Regulations Governing Small Takes of Ma rine Mammals Incidental to Specified Activities SOURCE: 61 FR 15887, Apr. 10, 1996, unless otherwise noted. § 216.101 Purpose. The regulations in this subpart im plement section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon request, the inci dental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fish ing) within a specified geographic re gion. § 216.102 Scope. The taking of small numbers of ma rine mammals under section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service: (a) Finds, based on the best scientific evidence available, that the total tak ing by the specified activity during the specified time period will have a neg ligible impact on species or stock of marine mammal(s) and will not have an unmitigable adverse impact on the availability of those species or stocks of marine mammals intended for sub sistence uses; (b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an inci dental harassment authorization issued under § 216.107, setting forth permis sible methods of taking and other means of effecting the least practicable adverse impact on the species or stock of marine mammal and its habitat and on the availability of the species or stock of marine mammal for subsist ence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and (c) Prescribes either regulations or requirements and conditions contained within an incidental harassment au thorization, as appropriate, pertaining to the monitoring and reporting of such taking. The specific regulations governing certain specified activities are contained in subsequent subparts of this part. § 216.103 Definitions. In addition to definitions contained in the MMPA, and in § 216.3, and unless the context otherwise requires, in sub sequent subparts to this part: Arctic waters means the marine and estuarine waters north of 60° N. lat. Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13). U.S. Federal, state and local government agencies shall also constitute citizens of the United States for purposes of this part. Incidental harassment, incidental tak ing and incidental, but not intentional, taking all mean an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, un avoidable or accidental. (A complete definition of ‘‘take’’ is contained in § 216.3). Negligible impact is an impact result ing from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through ef fects on annual rates of recruitment or survival. Small numbers means a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock. Specified activity means any activity, other than commercial fishing, that takes place in a specified geographical region and potentially involves the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00093 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