50 CFR Part 216.24

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR Part 216 (Dec. 13, 2024)

This content is from the eCFR and is authoritative but unofficial.

Title 50 —Wildlife and Fisheries
Chapter II —National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce
Subchapter C —Marine Mammals

50 CFR Part 216 (Dec. 13, 2024) (enhanced display)

page 1 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR Part 216 (Dec. 13, 2024)

Part 216 Regulations Governing the Taking and Importing of Marine Mammals
Subpart A Introduction
§ 216.1 Purpose of regulations.
§ 216.2 Scope of regulations.
§ 216.3 Definitions.
§ 216.4 Other laws and regulations.
§ 216.5 Payment of penalty.
§ 216.6 Forfeiture and return of seized property.
§ 216.7 Holding and bonding.
§ 216.8 Enforcement officers.
Subpart B Prohibitions
§ 216.11 Prohibited taking.
§ 216.12 Prohibited importation.
§ 216.13 Prohibited uses, possession, transportation, sales, and permits.
§ 216.14 Marine mammals taken before the MMPA.
§ 216.15 Depleted species.
§ 216.16 Prohibitions under the General Authorization for Level B harassment for scientific
research.
§ 216.17 General prohibitions.
§ 216.18 Approaching humpback whales in Alaska.
§ 216.19 Special restrictions for humpback whales in waters surrounding the islands of Hawaii.
§ 216.20 Special restrictions for Hawaiian spinner dolphins.
Subpart C General Exceptions
§ 216.21 Actions permitted by international treaty, convention, or agreement.
§ 216.22 Taking by State or local government officials.
§ 216.23 Native exceptions.
§ 216.24 Taking and related acts in commercial fishing operations including tuna purse seine
vessels in the eastern tropical Pacific Ocean.
§ 216.25 Exempted marine mammals and marine mammal products.
§ 216.26 Collection of certain marine mammal parts without prior authorization.
§ 216.27 Release, non-releasability, and disposition under special exception permits for
rehabilitated marine mammals.
Subpart D Special Exceptions
§ 216.30 [Reserved]
§ 216.31 Definitions.
§ 216.32 Scope.
§ 216.33 Permit application submission, review, and decision procedures.
§ 216.34 Issuance criteria.
§ 216.35 Permit restrictions.
50 CFR Part 216 (Dec. 13, 2024) (enhanced display)

page 2 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR Part 216 (Dec. 13, 2024)

§ 216.36 Permit conditions.
§ 216.37 Marine mammal parts.
§ 216.38 Reporting.
§ 216.39 Permit amendments.
§ 216.40 Penalties and permit sanctions.
§ 216.41 Permits for scientific research and enhancement.
§ 216.42 Photography. [Reserved]
§ 216.43 Public display. [Reserved]
§ 216.44 Applicability/transition.
§ 216.45 General Authorization for Level B harassment for scientific research.
§ 216.46 U.S. citizens on foreign flag vessels operating under the International Dolphin
Conservation Program.
§ 216.47 Access to marine mammal tissue, analyses, and data.
§§ 216.48-216.49 [Reserved]
Subpart E Designated Ports
§ 216.50 Importation at designated ports.
Subpart F Pribilof Islands, Taking for Subsistence Purposes
§ 216.71 Allowable take of fur seals.
§ 216.72 Restrictions on subsistence use of fur seals.
§ 216.73 Disposition of fur seal parts.
§ 216.74 Cooperation between fur seal subsistence users, tribal and Federal officials.
Subpart G Pribilof Islands Administration
§ 216.81 Visits to fur seal rookeries.
§ 216.82 Dogs prohibited.
§ 216.83 Importation of birds or mammals.
§ 216.84 [Reserved]
§ 216.85 Walrus and Otter Islands.
§ 216.86 Local regulations.
§ 216.87 Wildlife research.
Subpart H Dolphin Safe Tuna Labeling
§ 216.90 Purposes.
§ 216.91 Dolphin-safe labeling standards.
§ 216.92 Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels.
§ 216.93 Tracking and verification program.
§ 216.94 False statements or endorsements.
§ 216.95 Official mark for “Dolphin-safe” tuna products.
Subpart I General Regulations Governing Small Takes of Marine Mammals
Incidental to Specified Activities
§ 216.101 Purpose.
50 CFR Part 216 (Dec. 13, 2024) (enhanced display)

page 3 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR Part 216 (Dec. 13, 2024)

§ 216.102
§ 216.103
§ 216.104
§ 216.105
§ 216.106
§ 216.107
§ 216.108

Scope.
Definitions.
Submission of requests.
Specific regulations.
Letter of Authorization.
Incidental harassment authorization for Arctic waters.
Requirements for monitoring and reporting under incidental harassment
authorizations for Arctic waters.
Subpart J Taking of Eastern North Pacific (ENP) Gray Whales (Eschrichtius
robustus) by the Makah Indian Tribe Off the Coast of Washington State
§ 216.110 Purpose.
§ 216.111 Scope.
§ 216.112 Definitions.
§ 216.113 Issuance and duration of permits.
§ 216.114 Hunt management requirements and restrictions.
§ 216.115 Accounting and identification of gray whales.
§ 216.116 Use of edible and nonedible whale products.
§ 216.117 Prohibited acts.
§ 216.118 Requirements for monitoring, reporting, and recordkeeping.
§ 216.119 Expiration and amendment.
Subparts K-X [Reserved]
Figure 1 to Part 216
Northern Fur Seal Breeding Areas (Rookeries) and Hauling
Grounds on St. George Island, Alaska

PART 216—REGULATIONS GOVERNING THE TAKING AND
IMPORTING OF MARINE MAMMALS
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 incidental
takings of marine mammals.

Subpart A—Introduction

50 CFR 216 (enhanced display)

page 4 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.1

§ 216.1 Purpose of regulations.
The regulations in this part implement the Marine Mammal Protection Act of 1972, 86 Stat. 1027, 16 U.S.C.
1361-1407, Pub. L. 92-522, which, among other things, restricts the taking, possession, transportation, selling,
offering for sale, and importing of marine mammals.

§ 216.2 Scope of regulations.
This part 216 applies solely to marine mammals and marine mammal products as defined in § 216.3. For
regulations under the MMPA, with respect to other marine mammals and marine mammal products, see 50 CFR
part 18.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]

§ 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
Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as
amended, 16 U.S.C. 1151 et seq.
Active sportfishing means paying passengers have their terminal fishing gear (lures, hooks, etc.) in the water in
an attempt to catch fish or, in the case of fishing involving chumming, fishing is considered to be in
progress from the instant fish have been sighted taking bait (boiling) during that chumming process.
Administrator, Southwest Region means the Regional Administrator, Southwest Region, National Marine
Fisheries Service, 501 W. Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, or his or her designee.
Agreement on the International Dolphin Conservation Program (Agreement on the IDCP) means the Agreement
establishing the formal binding IDCP that was signed in Washington, DC on May 21, 1998.
Alaskan Native means a person defined in the Alaska Native Claims Settlement Act (43 U.S.C. 1602(b)) (85 Stat.
588) as a citizen of the United States who is of one-fourth degree or more Alaska Indian (including
Tsimishian Indians enrolled or not enrolled in the Metlaktla Indian Community), Eskimo, or Aleut blood or
combination thereof. The term includes any Native, as so defined, either or both of whose adoptive
parents are not Natives. It also includes, in the absence of proof of a minimum blood quantum, any citizen
of the United States who is regarded as an Alaska Native by the Native village or group, of which he
claims to be a member and whose father or mother is (or, if deceased, was) regarded as Native by any
Native village or Native group. Any such citizen enrolled by the Secretary of the Interior pursuant to
section 5 of the Alaska Native Claims Settlement Act shall be conclusively presumed to be an Alaskan
Native for purposes of this part.
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 consumption which—
(1) Were commonly produced by Alaskan Natives on or before October 14, 1983;
(2) Are composed wholly or in some significant respect of natural materials, and;

50 CFR 216.3 “Article of handicraft” (2) (enhanced display)

page 5 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.3 “Article of handicraft” (3)

(3) Are significantly altered from their natural form and which are produced, decorated, or fashioned in
the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or
similar mass copying devices. Improved methods of production utilizing modern implements such
as sewing machines or modern tanning techniques at a tannery registered pursuant to § 216.23(c)
may be used so long as no large scale mass production industry results. Traditional native
handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting. The formation of traditional native groups, such as a cooperative, is permitted
so long as no large scale mass production results.
Assistant Administrator means the Assistant Administrator for Fisheries, National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Silver Spring, MD 20910, or his/her designee.
Authentic native articles of handicrafts and clothing means items made by an Indian, Aleut or Eskimo which
(a) were commonly produced on or before December 21, 1972, and
(b) are composed wholly or in some significant respect of natural materials, and
(c) are significantly altered from their natural form and which are produced, decorated, or fashioned in
the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or
similar mass copying devices. Improved methods of production utilizing modern implements such
as sewing machines or modern tanning techniques at a tannery registered pursuant to § 216.23(c)
may be used so long as no large scale mass production industry results. Traditional native
handicrafts include, but are not limited to, weaving, carving, stitching, sewing, lacing, beading,
drawing, and painting. The formation of traditional native groups, such as a cooperative, is permitted
so long as no large scale mass production results.
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 publication in a refereed scientific journal;

(ii) Are likely to contribute to the basic knowledge of marine mammal biology or ecology. (Note:
This includes, for example, marine mammal parts in a properly curated, professionally
accredited scientific collection); or
(iii) Are likely to identify, evaluate, or resolve conservation problems.
(2) Research that is not on marine mammals, but that may incidentally take marine mammals, is not
included in this definition (see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA,
and sections 7(b)(4) and 10(a)(1)(B) of the ESA).
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 established by the harvesting
nation or applicable regional fishery management organization or intergovernmental agreement.
Carrying capacity means the Regional Director's determination of the maximum amount of fish that a vessel can
carry in short tons based on the greater of the amount indicated by the builder of the vessel, a marine
surveyor's report, or the highest amount reported landed from any one trip.
50 CFR 216.3 “Carrying capacity” (enhanced display)

page 6 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.3 “Certified charter vessel”

Certified charter vessel means a fishing vessel of a non-U.S. flag nation, which is operating under the jurisdiction
of the marine mammal laws and regulations of another, harvesting, nation by a formal declaration entered
into by mutual agreement of the nations.
Co-investigator means the on-site representative of a principal investigator.
Commercial fishing operation means the lawful harvesting of fish from the marine environment for profit as part
of an ongoing business enterprise. Such terms may include licensed commercial passenger fishing vessel
(as defined) 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 commercial passenger fishing purposes
within the State out of which it is operating and from which, while under charter or hire, persons are legally
permitted to conduct sportfishing activities.
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
considerations for comparability determinations 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 captive maintenance of the marine mammal.
Declaration of Panama means the declaration signed in Panama City, Republic of Panama, on October 4, 1995.
Director, Office of Protected Resources means Director, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910.
Dolphin Mortality Limit (DML) means the maximum allowable number of incidental dolphin mortalities per
calendar year assigned to a vessel, unless a shorter time period is specified.
Endangered Species means a species or subspecies of marine mammal listed as “endangered” pursuant to the
Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93-205 (see part 17 of this title).
ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
ETP means the eastern tropical Pacific Ocean which includes the Pacific Ocean area bounded by 40° N.
latitude, 40° S. latitude, 160° W. longitude and the coastlines of North, Central and South America.
Exempt fishery means a foreign commercial 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 operations. A commercial fishing operation that has a remote likelihood of causing
incidental mortality and serious injury of marine mammals is one that collectively with other foreign
fisheries exporting fish and fish products 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 marine mammal stock's bycatch limit, yet that fishery by itself removes
1 percent 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 Administrator may determine whether the likelihood of incidental mortality
and serious injury is “remote” by evaluating information concerning factors such as fishing
techniques, gear used, methods used to deter marine mammals, target species, seasons and areas
50 CFR 216.3 “Exempt fishery” (3) (enhanced display)

page 7 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.3 “Exemption period”

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 Administrator. A
foreign fishery will not be classified as an exempt fishery unless the Assistant Administrator has
reliable information from the harvesting nation, or other information to support such a finding.
Exemption period means the period during which commercial fishing operations 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). The exemption period extends through December 31, 2025.
Facility means, in the context specific to captive marine mammals,:
(1) One or more permanent primary enclosures used to hold marine mammals captive (i.e., pools,
lagoons) and associated infrastructure (i.e., equipment and supplies necessary for the care and
maintenance of marine mammals) where these enclosures are either located within the boundaries
of a single contiguous parcel of land and water, or are grouped together within the same general
area within which enclosure-to-enclosure transport is expected to be completed in less than one
hour; or
(2) A traveling display/exhibit, where the enclosure(s) and associated infrastructure is transported
together with the marine mammals.
Feeding is offering, giving, or attempting to give food or non-food items to marine mammals in the wild. It
includes operating a vessel or providing other platforms from which feeding is conducted or supported. It
does not include the routine discard of bycatch during fishing operations or the routine discharge of
waste or fish byproducts from fish processing plants or other platforms if the discharge is otherwise legal
and is incidental to operation of the activity.
First exporter means the person or company that first exports the fish or fish product, or, in the case of
shipments that are subject to the labeling requirements of 50 CFR part 247 and that only contain fish
harvested by vessels of the United States, the first seller of the fish or fish product.
Fish and fish product means any marine 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, baleen, treated pelt, or other part of a marine mammal that is relatively solid or
durable.
Harvesting nation means the country under whose flag one or more fishing vessels are documented, or which
has by formal declaration agreed to assert jurisdiction over one or more certified charter vessels, from
which vessel(s) fish are caught that are a part of any cargo or shipment of fish to be imported into the
United States, regardless of any intervening transshipments.
Humane means the method of taking, import, export, or other activity which involves the least possible degree
of pain and suffering practicable to the animal involved.

50 CFR 216.3 “Humane” (enhanced display)

page 8 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.3 “Import”

Import means to land on, bring into, or introduce into, or attempt to land on, bring into, or introduce into, any
place subject to the jurisdiction of the United States, whether or not such landing, bringing, or introduction
constitutes an importation within the Customs laws of the United States; except that, for the purpose of
any ban 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 directly interfering with commercial fishing operations, or
(2) as a consequence of the steps used to secure the fish in connection with commercial fishing
operations: Provided, That a marine mammal so taken must immediately be returned to the sea with
a minimum of injury and further, that the taking of a marine mammal, which otherwise meets the
requirements of this definition shall not be considered an incidental catch of that mammal if it is
used subsequently to assist in commercial fishing operations.
Intentional purse seine set means that a tuna purse seine vessel or associated vessels chase marine mammals
and subsequently make a purse seine set.
Intermediary nation means a nation that imports fish or fish products from a fishery on the List of Foreign
Fisheries and re-exports such fish or fish products to the United States.
International Dolphin Conservation Program (IDCP) means the international program established by the
agreement signed in La Jolla, California, in June 1992, as formalized, modified, and enhanced in
accordance with the Declaration of Panama and the Agreement on the IDCP.
International Dolphin Conservation Program Act (IDCPA) means Public Law 105-42, enacted into law on August
15, 1997.
International Review Panel (IRP) means the International Review Panel established by the Agreement on the
IDCP.
Intrusive research means a procedure conducted for bona fide scientific research involving: A break in or cutting
of the skin or equivalent, insertion of an instrument or material into an orifice, introduction of a substance
or object into the animal's immediate environment that is likely either to be ingested or to contact and
directly affect animal tissues (i.e., chemical substances), or a stimulus directed at animals that may
involve a risk to health or welfare or that may have an impact on normal function or behavior (i.e., audio
broadcasts directed at animals that may affect behavior). For captive animals, this definition does not
include:
(1) A procedure conducted by the professional staff of the holding facility or an attending veterinarian
for purposes of animal husbandry, care, maintenance, or treatment, or a routine medical procedure
that, in the reasonable judgment of the attending veterinarian, would not constitute a risk to the
health or welfare of the captive animal; or
(2) A procedure involving either the introduction of a substance or object (i.e., as described in this
definition) or a stimulus directed at animals that, in the reasonable judgment of the attending
veterinarian, would not involve a risk to the health or welfare of the captive animal.
Label means a display of written, printed, or graphic matter on or affixed to the immediate container of any
article.
Land or landing means to begin offloading any fish, to arrive in port with the intention of offloading fish, or to
cause any fish to be offloaded.
50 CFR 216.3 “Land or landing” (enhanced display)

page 9 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.3 “Large-scale driftnet”

Large-scale driftnet means a gillnet that is composed of a panel or panels of webbing, or a series of such
gillnets, with a total length of 2.5 kilometers or more that is used on the high seas and allowed to drift
with the currents and winds for the purpose of harvesting fish by entangling the fish in the webbing of the
net.
Level A Harassment means any act of pursuit, torment, or annoyance which has the potential to injure a marine
mammal or marine mammal stock in the wild.
Level B Harassment means any act of pursuit, torment, or annoyance which has the potential to disturb a marine
mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but
not limited to, migration, breathing, nursing, breeding, feeding, or sheltering but which does not have the
potential to injure a marine mammal or marine mammal stock in the wild.
List of Foreign Fisheries means the most recent list, organized by harvesting 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 operations according to
the frequency and likelihood of incidental mortality and serious injury of marine mammals during such
commercial fishing operations as either an exempt fishery or an export 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 specimens of the following orders, which are morphologically adapted to the
marine environment, and whether alive or dead, and any part thereof, including but not limited to, any raw,
dressed or dyed fur or skin: Cetacea (whales, dolphins, and porpoises) and Pinnipedia, other than walrus
(seals and sea lions).
MMPA means the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1361 et seq.
Native village or town means any community, association, tribe, band, clan or group.
Optimum sustainable population is a population size which falls within a range from the population level of a
given species or stock which is the largest supportable within the ecosystem to the population level that
results in maximum net productivity. Maximum net productivity is the greatest net annual increment in
population numbers or biomass resulting from additions to the population due to reproduction and/or
growth less losses due to natural mortality.
Per-stock per-year dolphin mortality limit means the maximum allowable number of incidental dolphin
mortalities and serious injuries from a specified stock per calendar year, as established under the IDCP.
Pregnant means pregnant near term.
Pribilovians means Indians, Aleuts, and Eskimos who live on the Pribilof Islands.
Principal investigator means the individual primarily responsible for the taking, importation, export, and any
related activities conducted under a permit issued for scientific research or enhancement purposes.
Public display means an activity that provides opportunities for the public to view living marine mammals at a
facility holding marine mammals captive.
Regional Director means the Regional Administrator, Northeast Regional Office, NMFS, One Blackburn Drive,
Gloucester, MA 01930; or Regional Administrator, Northwest Regional Office, NMFS, 7600 Sandpoint Way,
N.E., Building 1, Seattle, WA 98115; or Regional Administrator, Southeast Regional Office, NMFS, 9721
Executive Center Drive North, St. Petersburg, FL 33702; or Regional Administrator, Southwest Regional
50 CFR 216.3 “Regional Director” (enhanced display)

page 10 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.3 “Rehabilitation”

Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA 90802; or Regional Administrator,
Pacific Islands Regional Office, NMFS, 1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814; or
Regional Administrator, Alaska Regional Office, NMFS, PO Box 21668, Juneau, AK 99802.
Rehabilitation means treatment of beached and stranded marine mammals taken under section 109(h)(1) of the
MMPA or imported under section 109(h)(2) of the MMPA, with the intent of restoring the marine
mammal's health and, if necessary, behavioral patterns.
Secretary shall mean the Secretary of Commerce or his authorized representative.
Serious injury means any injury that will likely result in mortality.
Sexual harassment means any unwelcome sexual advance, request for sexual favors, or other verbal and
physical conduct of a sexual nature which has the purpose or effect of substantially interfering with an
individual's work performance or creating an intimidating, hostile, or offensive working environment.
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.
South Pacific Tuna Treaty means the Treaty on Fisheries Between the Governments of Certain Pacific Island
States and the Government of the United States of America (50 CFR part 300, subpart D).
Southern bluefin tuna means the species 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 return to the water, or is in the
water within the Exclusive Economic Zone of the United States where the water is so shallow that
the specimen is 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 necessary to maintain the life of the taker or those who depend upon the
taker to provide them with such subsistence.
Subsistence uses means the customary and traditional uses of fur seals taken by Pribilovians for direct personal
or family consumption as food, shelter, fuel, clothing, tools or transportation; for the making and selling of
handicraft articles out of nonedible byproducts of fur seals taken for personal or family consumption; and
for barter, or sharing for personal or family consumption. As used in this definition—
(1) Family means all persons related by blood, marriage, or adoption, or any person living within a
household on a permanent basis.
(2) Barter means the exchange of fur seals or their parts, taken for subsistence uses—
(i)

For other wildlife or fish or their parts, or

(ii) For other food or for nonedible items other than money if the exchange is of a limited and
noncommercial nature.
50 CFR 216.3 “Subsistence uses” (2)(ii) (enhanced display)

page 11 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.3 “Take”

Take means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine
mammal. This includes, without limitation, any of the following: The collection of dead animals, or parts
thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine
mammal; the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent
or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to
feed a marine mammal in the wild.
Threatened species means a species of marine mammal listed as “threatened” pursuant to the Endangered
Species Act of 1973, 87 Stat. 884, Pub. L. 93-205.
Transboundary stock means a marine mammal stock occurring in the:
(1) Exclusive economic zones or territorial sea of the United States and one or more other coastal
States; or
(2) Exclusive economic zone or territorial 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 include perishable items with a shelf
life of less than 3 days.
Wasteful manner means any taking or method of taking which is likely to result in the killing of marine mammals
beyond those needed for subsistence, subsistence uses, or for the making of authentic native articles of
handicrafts and clothing, or which results in the waste of a substantial portion of the marine mammal and
includes, without limitation, the employment of a method of taking which is not likely to assure the
capture or killing of a marine mammal, or which is not immediately followed by a reasonable effort to
retrieve the marine mammal.
U.S. regulatory program means the regulatory program governing the incidental mortality and serious injury of
marine mammals in the course of commercial fishing operations as specified in the Marine Mammal
Protection Act and its implementing regulations.
Yellowfin tuna means the species Thunnus albacares (synonomy: Neothunnus macropterus).
[39 FR 1852, Jan. 15, 1974]

Editorial Note: For FEDERAL REGISTER citations 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 applicable statutes or regulations relating to wildlife and fisheries, health, quarantine,
agriculture, or customs.
(b) State laws or regulations. See part 403 of this chapter.
50 CFR 216.4(b) (enhanced display)

page 12 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.5

[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 decision within which to pay the penalty
assessed. Upon a failure to pay the penalty, the Secretary may request the Attorney General to institute a civil action
in the appropriate United States District Court to collect the penalty.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]

§ 216.6 Forfeiture and return of seized property.
(a) Whenever any cargo or marine mammal or marine mammal product has been seized pursuant to section
107 of the MMPA, the Secretary shall expedite any proceedings commenced under these regulations.
(b) Whenever a civil penalty has been assessed by the Secretary under these regulations, any cargo, marine
mammal, or marine mammal product seized pursuant to section 107 of the MMPA shall be subject to
forfeiture. If respondent voluntarily forfeits any such seized property or the monetary value thereof
without court proceedings, the Secretary may apply the value thereof, if any, as determined by the
Secretary, toward payment of the civil penalty.
(c) Whenever a civil penalty has been assessed under these regulations, and whether or not such penalty has
been paid, the Secretary may request the Attorney General to institute a civil action in an appropriate
United States District Court to compel forfeiture of such seized property or the monetary value thereof to
the Secretary for disposition by him in such manner as he deems appropriate. If no judicial action to
compel forfeiture is commenced within 30 days after final decision-making assessment of a civil penalty,
pursuant to § 216.60, such seized property shall immediately be returned to the respondent.
(d) If the final decision of the Secretary under these regulations is that respondent has committed no
violation of the MMPA or of any permit or regulations issued thereunder, any marine mammal, marine
mammal product, or other cargo seized from respondent in connection with the proceedings under these
regulations, or the bond or other monetary value substituted therefor, shall immediately be returned to the
respondent.
(e) If the Attorney General commences criminal proceedings pursuant to section 105(b) of the MMPA, and
such proceedings result in a finding that the person accused is not guilty of a criminal violation of the
MMPA, the Secretary may institute proceedings for the assessment of a civil penalty under this part:
Provided, That if no such civil penalty proceedings have been commenced by the Secretary within 30 days
following the final disposition of the criminal case, any property seized pursuant to section 107 of the
MMPA shall be returned to the respondent.
(f) If any seized property is to be returned to the respondent, the Regional Director shall issue a letter
authorizing such return. This letter shall be dispatched to the respondent by registered mail, return receipt
requested, and shall identify the respondent, the seized property, and, if appropriate, the bailee of the
seized property. It shall also provide that upon presentation of the letter and proper identification, the
seized property is authorized to be released. All charges for storage, care, or handling of the seized
property accruing 5 days or more after the date of the return receipt shall be for the account of the
respondent: Provided, That if it is the final decision of the Secretary under these regulations that the
respondent has committed the alleged violation, all charges which have accrued for the storage, care, or
handling of the seized property shall be for the account of the respondent.
50 CFR 216.6(f) (enhanced display)

page 13 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.7

[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 Marine 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
compensation to be paid. Subpart F of 15 CFR part 904 contains additional procedures that govern seized
property that is subject to forfeiture or has been forfeited under the MMPA.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375,
Oct. 3, 1994]

§ 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 section 107(b) of the MMPA, the Secretary may also designate officers and
employees of any State or of any possession of the United States to enforce the 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 subparts C, D, and I of this part 216 or in part 228 or 229, it is unlawful for:
(a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any marine
mammal on the high seas, or
(b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under the jurisdiction
of the United States, or
(c) Any person subject to the jurisdiction of the United States to take any marine mammal during the
moratorium.
[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 FR 21921, May 19, 1989]

§ 216.12 Prohibited importation.
(a) Except as otherwise provided in subparts C and D of this part 216, it is unlawful for any person to import
any marine mammal or marine mammal product into the United States.
(b) Regardless of whether an importation is otherwise authorized pursuant to subparts C and D of this part
216, it is unlawful for any person to import into the United States any:
(1) Marine mammal:
50 CFR 216.12(b)(1) (enhanced display)

page 14 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

(i)

50 CFR 216.12(b)(1)(i)

Taken in violation of the MMPA, or

(ii) Taken in another country in violation to the laws of that country;
(2) Any marine mammal product if
(i)

The importation into the United States of the marine mammal from which such product is made
would be unlawful under paragraph (b)(1) of this section, or

(ii) The sale in commerce of such product in the country of origin if the product is illegal.
(c) Except in accordance with an exception referred to in subpart C and §§ 216.31 (regarding scientific
research permits only) and 216.32 of this part 216, it is unlawful to import into the United States any:
(1) Marine mammal which was pregnant at the time of taking.
(2) Marine mammal which was nursing at the time of taking, or less than 8 months old, whichever
occurs later.
(3) Specimen of an endangered or threatened species of marine mammal.
(4) Specimen taken from a depleted species or stock of marine mammals, or
(5) Marine mammal taken in an inhumane manner.
(d) It is unlawful to import into the United States any fish, whether fresh, frozen, or otherwise prepared, if such
fish was caught in a manner proscribed by the Secretary of Commerce for persons subject to the
jurisdiction of the United States, whether or not any marine mammals were in fact taken incident to the
catching of the fish.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]

§ 216.13 Prohibited uses, possession, transportation, sales, and permits.
It is unlawful for:
(a) Any person to use any port, harbor or other place under the jurisdiction of the United States for any
purpose in any way connected with a prohibited taking or an unlawful importation of any marine mammal
or marine mammal product; or
(b) Any person subject to the jurisdiction of the United States to possess any marine mammal taken in
violation of the MMPA or these regulations, or to transport, sell, or offer for sale any such marine mammal
or any marine mammal product made from any such mammal.
(c) Any person subject to the jurisdiction of the United States to use in a commercial fishery, any means or
method of fishing in contravention of regulations and limitations issued by the Secretary of Commerce for
that fishery to achieve the purposes of this MMPA.
(d) Any person to violate any term, condition, or restriction of any permit issued by the Secretary.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996]

50 CFR 216.13(d) (enhanced display)

page 15 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.14

§ 216.14 Marine mammals taken before the MMPA.
(a) Section 102(e) of the MMPA provides, in effect, that the MMPA shall not apply to any marine mammal
taken prior to December 21, 1972, or to any marine mammal product, consisting of or composed in whole
or in part of, any marine mammal taken before that date. This prior status of any marine mammal or
marine mammal product may be established by submitting to the Director, National Marine Fisheries
Service prior to, or at the time of importation, an affidavit containing the following:
(1) The Affiant's name and address;
(2) Identification of the Affiant;
(3) A description of the marine mammals or marine mammal products which the Affiant desires to
import;
(4) A statement by the Affiant that, to the best of his knowledge and belief, the marine mammals
involved in the application were taken prior to December 21, 1972;
(5) A statement by the Affiant in the following language:
The foregoing is principally based on the attached exhibits which, to the best of my knowledge and belief,
are complete, true and correct. I understand that this affidavit is being submitted for the purpose of
inducing the Federal Government to permit the importation of—under the Marine Mammal Protection Act
of 1972 (16 U.S.C. 1361 through 1407) and regulations promulgated thereunder, and that any false
statements may subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties under the Marine
Mammal Protection Act of 1972.
(b) Either one of two exhibits shall be attached to such affidavit, and will contain either:
(1) Records or other available evidence showing that the product consists of or is composed in whole or
in part of marine mammals taken prior to the effective date of the MMPA. Such records or other
evidentiary material must include information on how, when, where, and by whom the animals were
taken, what processing has taken place since taking, and the date and location of such processing;
or
(2) A statement from a government agency of the country of origin exercising jurisdiction over marine
mammals that any and all such mammals from which the products sought to be imported were
derived were taken prior to December 21, 1972.
(c) No pre-Act marine mammal or pre-Act marine mammal product may be imported unless the requirements
of this section have been fulfilled.
(d) This section has no application to any marine mammal or marine mammal 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 Assistant Administrator as depleted under
the provisions of the MMPA.
(a) Hawaiian monk seal (Monachus schauinslandi).
50 CFR 216.15(a) (enhanced display)

page 16 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.15(b)

(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 dolphin (Stenella attenuata).
(g) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus leucas). The stock includes all beluga whales
occurring in waters of the Gulf of Alaska north of 58° North latitude including, but not limited to, Cook
Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince William Sound, Yakutat Bay, Shelikof Strait, and off
Kodiak Island and freshwater tributaries to these waters.
(h) Eastern North Pacific Southern Resident stock of killer whales (Orcinus orca). The stock includes all
resident killer whales in pods J, K, and L in the waters of, but not limited to, the inland waterways of
southern British Columbia and Washington, including the Georgia Strait, the Strait of Juan de Fuca, and
Puget Sound.
(i)

AT1 stock of killer whales (Orcinus orca). The stock includes all killer whales belonging to the AT1 group
of transient killer whales occurring primarily in waters of Prince William Sound, Resurrection Bay, and the
Kenai Fjords region of Alaska.

(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 General Authorization for Level B harassment for scientific
research.
It shall be unlawful for any person to:
(a) Provide false information in a letter of intent submitted pursuant to § 216.45(b);
(b) Violate any term or condition imposed 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 another person, knowing that such
person has committed any act prohibited by the MMPA.
50 CFR 216.17(b) (enhanced display)

page 17 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.17(c)

(c) Resist a lawful arrest for any act prohibited under the MMPA.
(d) Make any false statement, oral or written, to an authorized officer concerning any act under the
jurisdiction of the MMPA, DPCIA, IDCPA, or attempt to do any of the above.
(e) Interfere with, obstruct, delay, or prevent by any means an investigation, search, seizure, or disposition of
seized property in connection with enforcement of the MMPA, DPCIA, or IDCPA.
[70 FR 19008, Apr. 12, 2005]

§ 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 solicit 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 acts in paragraphs (a)(1) through (a)(3) of this section with respect to humpback whales
(Megaptera novaeangliae):
(1) Approach, by any means, including by interception (i.e., placing a vessel in the path of an oncoming
humpback whale so that the whale surfaces within 100 yards (91.4 m) of the vessel), within 100
yards (91.4 m) of any humpback 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; escape tactics such as prolonged diving, underwater course changes,
underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, 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 frequented area.
(b) Exceptions. The following exceptions apply, but any person who claims the applicability of an exception
has the burden of proving that the exception applies:
(1) Paragraph (a) of this section does not apply if an approach is authorized by the National Marine
Fisheries Service through a permit issued under subpart 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 section.
(3) Paragraph (a) of this section does not apply to commercial fishing vessels lawfully engaged in
actively setting, retrieving or closely tending commercial fishing gear. For purposes of this section,
commercial fishing means taking or harvesting fish or fishery resources to sell, barter, or trade.
Commercial fishing does not include commercial 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).

50 CFR 216.18(b)(5) (enhanced display)

page 18 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.18(b)(6)

(6) This section shall not take precedence over any more restrictive conflicting Federal regulation
pertaining to humpback whales, including the regulations at 36 CFR 13.1102-13.1188 that pertain
specifically to the waters of Glacier Bay National Park and Preserve.
(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 Regulations 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 humpback whales in waters surrounding the islands of Hawaii.
(a) Prohibitions. Except as noted in 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 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 (91.4 m) of the vessel, person, or object); 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; escape tactics such as prolonged diving, underwater course changes,
underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, 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 frequented area.
(b) Exceptions. The prohibitions of paragraph (a) of this section do not apply to:
(1) Federal, State, or local government vessels, personnel, and assets, when necessary, in the course of
performing official duties;
(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 that, because of this restriction, are not able to comply
with approach restrictions; or
(4) Activities authorized through a permit or authorization issued by the National Marine Fisheries
Service to take humpback whales.
(c) Affirmative defense.

50 CFR 216.19(c) (enhanced display)

page 19 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.19(c)(1)

(1) 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 (b) of this section has the burden of proving
that the exemption or exception 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, as amended at 88 FR 88265, Dec. 21, 2023]

§ 216.20 Special restrictions for Hawaiian spinner dolphins.
(a) Applicability. The following special restrictions designed to protect Hawaiian Spinner Dolphins apply:
(1) In all waters within 2 nautical miles (nmi) of the main Hawaiian Islands, and
(2) In all waters bounded by the islands of Lāna`i, Maui, and Kaho`olawe enclosed by 3 line segments
that connect points on the 2-nmi boundary between 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
coordinates 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
Kaho`olawe and Lāna`i
Lāna`i and Maui
Maui and Kaho`olawe

Figure 3 label

Latitude

Longitude

A1

20°32′51″ N

156°43′50″ W

A2

20°42′4″ N

156°55′34″ W

B1

20°51′1″ N

156°54′0″ W

B2

20°59′48″ N

156°42′28″ W

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 unlawful for any person subject to the
jurisdiction of the United States to commit, 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;

50 CFR 216.20(b)(2) (enhanced display)

page 20 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.20(b)(3)

(3) Cause a vessel, person, or other object to approach or remain within 50 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 Hawaiian 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 Hawaiian spinner dolphin or is
approached by a spinner dolphin, provided the person makes no effort to engage 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 dolphin, 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 artificial contrivance used, or capable of
being used, as a means of transportation 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 Hawaiian 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 government vessels, aircraft, personnel, and assets when necessary in the
course of performing official duties;
(8) Commercial fishing vessels that incidentally take spinner dolphins during the course of commercial
fishing operations, provided such vessels operate 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 applicable, 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 following are overview maps and a
table with corresponding coordinate data for the areas for Hawaiian spinner dolphin special restriction.

50 CFR 216.20(e) (enhanced display)

page 21 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.20(e) (enhanced display)

50 CFR 216.20(e)

page 22 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.21

86 FR 53841, Sept. 28, 2021]

Subpart C—General Exceptions
§ 216.21 Actions permitted by international treaty, convention, or agreement.
The MMPA and these regulations shall not apply to the extent that they are inconsistent with the provisions of any
international treaty, convention or agreement, or any statute implementing the same relating to the taking or
importation of marine mammals or marine mammal products, which was existing and in force prior to December
21, 1972, and to which the United States was a party. Specifically, the regulations in subpart B of this part and the
provisions of the MMPA shall not apply to activities 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]
50 CFR 216.21 (enhanced display)

page 23 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.22

§ 216.22 Taking by State or local government officials.
(a) A State or local government official or employee may take a marine mammal in the normal course of his
duties as an official or employee, and no permit shall be required, if such taking:
(1) Is accomplished in a humane manner;
(2) Is for the protection or welfare of such mammal or for the protection of the public health or welfare;
and
(3) Includes steps designed to insure return of such mammal, if not killed in the course of such taking, to
its natural habitat. In addition, any such official or employee may, incidental to such taking, possess
and transport, but not sell or offer for sale, such mammal and use any port, harbor, or other place
under the jurisdiction of the United States. All steps reasonably practicable under the circumstances
shall be taken by any such employee or official to prevent injury or death to the marine mammal as
the result of such taking. Where the marine mammal in question is injured or sick, it shall be
permissible to place it in temporary captivity until such time as it is able to be returned to its natural
habitat. It shall be permissible to dispose of a carcass of a marine mammal taken in accordance
with this subsection whether the animal is dead at the time of taking or dies subsequent thereto.
(b) Each taking permitted under this section shall be included in a written report to be submitted to the
Secretary every six months beginning December 31, 1973. Unless otherwise permitted by the Secretary,
the report shall contain a description of:
(1) The animal involved;
(2) The circumstances requiring the taking;
(3) The method of taking;
(4) The name and official position of the State official or employee involved;
(5) The disposition of the animal, including in cases where the animal has been retained in captivity, a
description of the place and means of confinement and the measures taken for its maintenance and
care; and
(6) Such other information as the Secretary may require.
(c) Salvage of dead stranded marine mammals or parts therefrom and subsequent transfer.
(1) Salvage. In the performance of official duties, a state or local government employee; an employee of
the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, or any other Federal agency
with jurisdiction and conservation responsibilities in marine shoreline areas; or a person authorized
under 16 U.S.C. 1382(c) may take and salvage a marine mammal specimen if it is stranded and dead
or it was stranded or rescued and died during treatment, transport, captivity or other rehabilitation
subsequent to that stranding or distress if salvage is for the purpose of utilization in scientific
research or for the purpose of maintenance in a properly curated, professionally accredited scientific
collection.
(2) Registration. A person salvaging a dead marine mammal specimen under this section must register
the salvage of the specimen with the appropriate Regional Office of the National Marine Fisheries
Service within 30 days after the taking or death occurs. The registration must include:
(i)

The name, address, and any official position of the individual engaged in the taking and salvage;

50 CFR 216.22(c)(2)(i) (enhanced display)

page 24 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.22(c)(2)(ii)

(ii) A description of the marine mammal specimen salvaged including the scientific and common
names of the species;
(iii) A description of the parts salvaged;
(iv) The date and the location of the taking;
(v) Such other information as deemed necessary by the Assistant Administrator.
(3) Identification and curation. The Regional Director will assign a single unique number to each carcass,
and the parts thereof, that are salvaged under the provisions of this section. The person who
salvaged the specimen may designate the number to be assigned. After this number is assigned, the
person who salvaged the specimen must permanently mark that number on each separate hard part
of that specimen and must affix that number with tags or labels to each soft part of that specimen or
the containers in which that soft part is kept. Each specimen salvaged under this section must be
curated in accordance with professional standards.
(4) No sale or commercial trade. No person may sell or trade for commercial purposes any marine
mammal specimen salvaged under this section.
(5) Transfer without prior authorization. A person who salvages a marine mammal specimen under this
section may transfer that specimen to another person if:
(i)

The person transferring the marine mammal specimen does not receive remuneration for the
specimen;

(ii) The person receiving the marine mammal specimen is an employee of the National Marine
Fisheries Service, the U.S. Fish and Wildlife Service, or any other Federal agency with
jurisdiction and conservation responsibilities in marine shoreline areas; is a person authorized
under 16 U.S.C. 1382(c); or is a person who has received prior authorization under paragraph
(c)(6) of this section;
(iii) The marine mammal specimen is transferred for the purpose of scientific research, for the
purpose of maintenance in a properly curated, professionally accredited scientific collection, or
for educational purposes;
(iv) The unique number assigned by the National Marine Fisheries Service is on, marked on, or
affixed to the marine mammal specimen or container; and
(v) Except as provided under paragraph (c)(8) of this section, the person transferring the marine
mammal specimen notifies the appropriate Regional Office of the National Marine Fisheries
Service of the transfer, including notification of the number of the specimen transferred and the
person to whom the specimen was transferred, within 30 days after the transfer occurs.
(6) Other transfers within the United States. Except as provided under paragraphs (c)(5) and (c)(8) of this
section, a person who salvages a marine mammal specimen, or who has received a marine mammal
specimen under the provisions of this section, may not transfer that specimen to another person
within the United States unless the Regional Director of the appropriate Regional Office of the
National Marine Fisheries Service grants prior written authorization for the transfer. The Regional
Director may grant authorization for the transfer if there is evidence that the conditions listed under
paragraphs (c)(5)(i), (c)(5)(iii), and (c)(5)(iv) of this section are met.

50 CFR 216.22(c)(6) (enhanced display)

page 25 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.22(c)(7)

(7) Tranfers outside of the United States. A person who salvages a marine mammal specimen, or a
person who has received a marine mammal specimen under the provisions of this section, may not
transfer that specimen to a person outside of the United States unless the Assistant Administrator
grants prior written authorization for the transfer. The Assistant Administrator may grant
authorization for the transfer if there is evidence that the conditions listed under paragraphs (c)(5)(i),
(c)(5)(iii), and (c)(5)(iv) of this section are met.
(8) Exceptions to requirements for notification or prior authorization. A person may transfer a marine
mammal specimen salvaged under this section without the notification required in paragraph
(c)(5)(v) of this section or the prior authorization required in paragraph (c)(6) of this section if:
(i)

The transfer is a temporary transfer to a laboratory or research facility within the United States
so that analyses can be performed for the person salvaging the specimen; or

(ii) The transfer is a loan of not more than 1 year to another professionally accredited scientific
collection within the United States.
[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]

§ 216.23 Native exceptions.
(a) Taking. Notwithstanding the prohibitions of subpart B of this part 216, but subject to the restrictions
contained in this section, any Indian, Aleut, or Eskimo who resides on the coast of the North Pacific Ocean
or the Arctic Ocean may take any marine mammal without a permit, if such taking is:
(1) By Alaskan Natives who reside in Alaska for subsistence, or
(2) For purposes of creating and selling authentic native articles of handicraft and clothing, and
(3) In each case, not accomplished in a wasteful manner.
(b) Restrictions.
(1) No marine mammal taken for subsistence may be sold or otherwise transferred to any person other
than an Alaskan Native or delivered, carried, transported, or shipped in interstate or foreign
commerce, unless:
(i)

It is being sent by an Alaskan Native directly or through a registered agent to a tannery
registered under paragraph (c) of this section for the purpose of processing, and will be
returned directly or through a registered agent to the Alaskan Native; or

(ii) It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan
Native; or
(iii) It is an edible portion and it is sold in an Alaskan Native village or town.
(2) No marine mammal taken for purposes of creating and selling authentic native articles of handicraft
and clothing may be sold or otherwise transferred to any person other than an Indian, Aleut or
Eskimo, or delivered, carried, transported or shipped in interstate or foreign commerce, unless:
(i)

It is being sent by an Indian, Aleut or Eskimo directly or through a registered agent to a tannery
registered under paragraph (c) of this section for the purpose of processing, and will be
returned directly or through a registered agent to the Indian, Aleut or Eskimo; or

50 CFR 216.23 (enhanced display)

page 26 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.23

(ii) It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo;
or
(iii) It has first been transformed into an authentic native article of handicraft or clothing; or
(iv) It is an edible portion and sold
(A) in an Alaskan Native village or town, or
(B) to an Alaskan Native for his consumption.
(c) Any tannery, or person who wishes to act as an agent, within the jurisdiction of the
United States may apply to the Director, National Marine Fisheries Service, U.S.
Department of Commerce, Washington, DC 20235, for registration as a tannery or an
agent which may possess and process marine mammal products for Indians, Aleuts, or
Eskimos. The application shall include the following information:
(i)

The name and address of the applicant;

(ii) A description of the applicant's procedures for receiving, storing, processing, and shipping
materials;
(iii) A proposal for a system of bookkeeping and/or inventory segregation by which the applicant
could maintain accurate records of marine mammals received from Indians, Aleuts, or Eskimos
pursuant to this section;
(iv) Such other information as the Secretary may request;
(v) A certification in the following language:
I hereby certify that the foregoing information is complete, true and correct to the best of my
knowledge and belief. I understand that this information is submitted for the purpose of obtaining
the benefit of an exception under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361
through 1407) and regulations promulgated thereunder, and that any false statement may subject
me to the criminal penalties of 18 U.S.C. 1001, or to penalties under the Marine Mammal Protection
Act of 1972.
(vi) The signature of the applicant.
The sufficiency of the application shall be determined by the Secretary, and in that connection, he may waive any
requirement for information, or require any elaboration or further information deemed necessary. The registration of
a tannery or other agent shall be subject to such conditions as the Secretary prescribes, which may include, but are
not limited to, provisions regarding records, inventory segregation, reports, and inspection. The Secretary may
charge a reasonable fee for processing such applications, including an appropriate apportionment of overhead and
administrative expenses of the Department of Commerce.
(d) Notwithstanding the preceding provisions of this section, whenever, under the MMPA, the Secretary
determines any species of stock of marine mammals to be depleted, he may prescribe regulations
pursuant to section 103 of the MMPA upon the taking of such marine animals by any Indian, Aleut, or
Eskimo and, after promulgation of such regulations, all takings of such marine mammals shall conform to
such regulations.
(e) Marking and reporting of Cook Inlet Beluga Whales —
50 CFR 216.23 (enhanced display)

page 27 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.23

(1) Definitions. In addition to definitions contained in the MMPA and the regulations in this part:
(i)

Reporting means the collection and delivery of biological data, harvest data, and other
information regarding the effect of taking a beluga whale (Delphinapterus leucas) from Cook
Inlet, as required by NMFS.

(ii) Whaling captain or vessel operator means the individual who is identified by Alaskan Natives as
the leader of each hunting team (usually the other crew on the boat) and who is the whaling
captain; or the individual operating the boat at the time the whale is harvested or transported to
the place of processing.
(iii) Cook Inlet means all waters of Cook Inlet north of 59° North latitude, including, but not limited
to, waters of Kachemak Bay, Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
(2) Marking. Each whaling captain or vessel operator, upon killing and landing a beluga whale
(Delphinapterus leucas) from Cook Inlet, Alaska, must remove the lower left jawbone, leaving the
teeth intact and in place. When multiple whales are harvested during one hunting trip, the jawbones
will be marked for identification in the field to ensure correct reporting of harvest information by
placing a label marked with the date, time, and location of harvest within the container in which the
jawbone is placed. The jawbone(s) must be retained by the whaling captain or vessel operator and
delivered to NMFS at the Anchorage Field Office, 222 West 7th Avenue, Anchorage, Alaska 99513
within 72 hours of returning from the hunt.
(3) Reporting. Upon delivery to NMFS of a jawbone, the whaling captain or vessel operator must
complete and mail a reporting form, available from NMFS, to the NMFS Anchorage Field Office within
30 days. A separate form is required for each whale harvested.
(i)

To be complete, the form must contain the following information: the date and location of kill,
the method of harvest, and the coloration of the whale. The respondent will also be invited to
report on any other observations concerning the animal or circumstance of the harvest.

(ii) Data collected pursuant to paragraph (e) of this section will be reported on forms obtained from
the Anchorage Field Office. These data will be maintained in the NMFS Alaska Regional Office
in Juneau, Alaska, where such data will be available for public review.
(4) No person may falsify any information required to be set forth on the reporting form as required by
paragraph (e) of this section.
(5) The Anchorage Field Office of NMFS is located in room 517 of the Federal Office Building, 222 West
7th Avenue; its mailing address is: NMFS, Box 43, Anchorage, AK. 99513.
(f) Harvest management of Cook Inlet beluga whales —
(1) Cooperative management of subsistence harvest. Subject to the provisions of 16 U.S.C. 1371(b) and
any further limitations set forth in § 216.23, any taking of a Cook Inlet beluga whale by an Alaska
Native must be authorized under an agreement for the co-management of subsistence uses
(hereinafter in this paragraph “co-management agreement”) between the National Marine Fisheries
Service and an Alaska Native organization(s).
(2) Limitations.
(i)

Sale of Cook Inlet beluga whale parts and products. Authentic Native articles of handicraft and
clothing made from nonedible by-products of beluga whales taken in accordance with the
provisions of this paragraph may be sold in interstate commerce. The sale of any other part or

50 CFR 216.23 (enhanced display)

page 28 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.23

product, including food stuffs, from Cook Inlet beluga whales is prohibited, provided that
nothing herein shall be interpreted to prohibit or restrict customary and traditional subsistence
practices of barter and sharing of Cook Inlet beluga parts and products.
(ii) Beluga whale calves or adults with calves. The taking of a calf or an adult whale accompanied
by a calf is prohibited.
(iii) Season. All takings of beluga whales authorized under § 216.23(f) shall occur no earlier than
July 1 of each year.
(iv) Taking during 2001-2004. The harvest of Cook Inlet beluga whales is restricted during the fouryear period of 2001-2004 as follows:
(A) Strike limitations. Subject to the suspension provision of subparagraph (C), a total of six
(6) strikes, which could result in up to six landings, are to be allocated through comanagement agreement(s).
(B) Strike allocations. Four strikes, not to exceed one per year, are allocated to the Native
Village of Tyonek. The remaining two strikes will be allocated over the 4-year period
through co-management agreement with other Cook Inlet community hunters, with no
more than one such strike being allocated during every other year.
(C) Emergency provisions. Takings of beluga whales authorized under § 216.23 will be
suspended whenever unusual mortalities exceed six (6) whales in any year. “Unusual
mortalities” include all documented human-caused mortality (including illegal takings and
net entanglements but excluding all legally harvested whales) and all documented
mortality resulting from unknown or natural causes that occur above normal levels,
considered for the purposes of this provision to be twelve beluga whales per year. The
level of unusual mortalities shall be calculated by documenting mortality for the calendar
year and subtracting twelve. The sum of this result and the carry over of unusual mortality
from any previous year from which the population has not recovered is the level of unusual
mortalities for the current year. If in any year the number of unusual mortalities exceeds
six whales, no strikes will be allowed in that year or in subsequent years until the
population has recovered from those mortalities through foregone future harvests and
natural recruitment.
(v) Taking during 2008 and subsequent years.
(A) Co-management agreements pursuant to paragraph (f)(1) of this section may be
established for 5-year intervals beginning in 2008. Agreements must include specific
provisions regarding the number and allocation of strikes, hunting practices to promote
consistency with limitations in paragraph (f)(2)(ii) of this section, and to improve efficiency
of the harvest, mitigating measures, and enforcement. Agreements may include
provisions regarding the sex composition of the beluga harvest.
(B) Strike/harvest levels for each 5-year planning interval beginning in 2008 will be determined
by the recovery of this stock as measured by the average abundance in the prior 5-year
interval and the best estimate of the population growth rate using information obtained in
the 10 years prior to each 5-year interval. Criteria for categorizing growth rates are
presented below as an algorithm using the estimated abundance, the distribution
statistics for growth rates, and the date. Harvest levels are subject to the Expected

50 CFR 216.23 (enhanced display)

page 29 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.23

Mortality Limit. The established strike levels are presented in the Harvest Table and the
following algorithm will be used to determine harvest levels for each 5-year period
beginning in 2008.
(1) NMFS will calculate the average stock abundance over the previous 5-year period.
(2) NMFS will calculate a population growth rates from abundance estimates for the
most recent 10-year period prior to the next 5-year period.
(3) Using the abundance and growth information obtained in accordance with
paragraphs (f)(2)(v)(B)(1) and (f)(2)(v)(B)(2), NMFS will calculate the probabilities
that the growth rate within the population would be less than 1 percent, less than 2
percent, or greater than 3 percent. NMFS will then use paragraphs (f)(2)(v)(B)(3(i))
and (f)(2)(v)(B)(3)(vi) of this section to select the proper cell from the Harvest Table
to determine the harvest levels for the next 5-year interval.
(i)

Is the average stock abundance over the previous 5-year period less than 350
beluga whales? If yes, the Harvest Table provides that the harvest is zero during
the next 5-year period. If no, go to (f)(2)(v)(B)(3)(ii) of this section.

(ii) Is the current year 2035 or later and is there more than a 20 percent probability
the growth rate is less than 1 percent? If yes, the harvest is zero during the next
5-year period. If no, go to paragraph (f)(2)(v)(B)(3)(iii) of this section.
(iii) Is the current year between 2020 and 2034 and there is more than a 20 percent
probability the growth rate is less than 1 percent? If yes, the harvest is three
whales during the next 5-year period. If no, go to paragraph (f)(2)(v)(B)(3)(iv) of
this section.
(iv) Is the current year 2015 or later and is there more than a 25 percent probability
the growth rate is less than 2 percent? If yes, go to the harvest table using the
“Low” growth rate column. If no, go to paragraph (f)(2)(v)(B)(3)(vi)) of this
section.
(v) Is the current year prior to 2015 and is there more than a 75 percent probability
the growth rate is less than 2 percent? If yes, go to the harvest table using the
“Low” growth rate column. If no, go to paragraph (f)(2)(v)(B)(3)(vi) of this
section.

50 CFR 216.23 (enhanced display)

page 30 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.23

(vi) Is there more than a 25-percent probability the growth rate is more than 3
percent? If yes, go to the harvest table using the “High” growth rate column. If
no, go to the harvest table using the “Intermediate” growth rate column.

HARVEST TABLE
5-year
population
averages

“Intermediate”
growth rate

“Low”
growth
rate

0

0

0

-

350-399

8 strikes in 5 years

5 strikes in 5
years

5
strikes
in 5
years

21

400-449

9 strikes in 5 years

8 strikes in 5
years

5
strikes
in 5
years

24

450-499

10 strikes in 5 years

8 strikes in 5
years

5
strikes
in 5
years

27

500-524

14 strikes in 5 years

9 strikes in 5
years

5
strikes
in 5
years

30

525-549

16 strikes in 5 years

10 strikes in 5
years

5
strikes
in 5
years

32

550-574

20 strikes in 5 years

15 strikes in 5
years

5
strikes
in 5
years

33

575-599

22 strikes in 5 years

16 strikes in 5
years

5
strikes
in 5
years

35

600-624

24 strikes in 5 years

17 strikes in 5
years

6
strikes
in 5
years

36

625-649

26 strikes in 5 years

18 strikes in 5

6

38

Less than
350

50 CFR 216.23 (enhanced display)

“High” growth rate

Expected
Mortality
Limit

page 31 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

5-year
population
averages

“High” growth rate

50 CFR 216.24

“Intermediate”
growth rate

“Low”
growth
rate

years

strikes
in 5
years

Expected
Mortality
Limit

650-699

28 strikes in 5 years

19 strikes in 5
years

7
strikes
in 5
years

39

700-779

32 strikes in 5 years

20 strikes in 5
years

7
strikes
in 5
years

42

780 +

Consult with co-managers to expand
harvest levels while allowing for the
population to grow

(C) At the beginning of each 5-year period, an Expected Mortality Limit is determined from the
Harvest Table using the 5-year average abundance. During the course of each calendar
year, the number of beach casts carcasses and carcasses found floating either reported to
NMFS or observed by NMFS personnel will be the number of mortalities for that year. If at
the end of each calendar year this number exceeds the Expected Mortality Limit, then an
unusual mortality event has occurred. The Estimated Excess Mortalities will be calculated
as twice the number of reported dead whales above the Expected Mortality Limit. The
harvest will then be adjusted as follows:
(1) The harvest level for the remaining years of the current 5-year period will be
recalculated by reducing the 5-year average abundance from the previous 5-year
period by the Estimated Excess Mortalities. The revised abundance estimate would
then be used in the harvest table for the remaining years and the harvest adjusted
accordingly.
(2) For the subsequent 5-year period, for the purpose of calculating the 5-year average,
the Estimated Excess Mortalities would be subtracted from the abundance estimates
of the year of the excess mortality event so that the average would reflect the loss to
the population. This average would then be used in the table to set the harvest level.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64 FR 27927, May 24, 1999; 69 FR 17980, Apr. 6, 2004; 73
FR 60985, Oct. 15, 2008]

§ 216.24 Taking and related acts in commercial fishing operations including tuna purse seine
vessels in the eastern tropical Pacific Ocean.
(a)
50 CFR 216.24(a) (enhanced display)

page 32 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(a)(1)

(1) No marine mammal may be taken in the course of a commercial fishing operation by a U.S. purse
seine fishing vessel in the ETP unless the taking constitutes an incidental catch as defined in §
216.3, and vessel and operator permits have been obtained in accordance with these regulations,
and such taking is not in violation of such permits or regulations.
(2)
(i)

It is unlawful for any person using a U.S. purse seine fishing vessel of 400 short tons (st) (362.8
metric tons (mt)) carrying capacity or less to intentionally deploy a net on or to encircle
dolphins, or to carry more than two speedboats, if any part of its fishing trip is in the ETP.

(ii) It is unlawful for any person using a U.S. purse seine fishing vessel of greater than 400 st (362.8
mt) carrying capacity that does not have a valid permit obtained under these regulations to
catch, possess, or land tuna if any part of the vessel's fishing trip is in the ETP.
(iii) It is unlawful for any person subject to the jurisdiction of the United States to receive, purchase,
or possess tuna caught, possessed, or landed in violation of paragraph (a)(2)(ii) of this section.
(iv) It is unlawful for any person subject to the jurisdiction of the United States to intentionally
deploy a purse seine net on, or to encircle, dolphins from a vessel operating in the ETP when
there is not a DML assigned to that vessel.
(v) It is unlawful for any person subject to the jurisdiction of the United States to intentionally
deploy a purse seine net on, or to encircle, dolphins from a vessel operating in the ETP with an
assigned DML after a set in which the DML assigned to that vessel has been reached or
exceeded.
(vi) Alleged violations of the Agreement on the IDCP and/or these regulations identified by the
International Review Panel will be considered for potential enforcement action by NMFS.
(3) Upon written request made in advance of entering the ETP, the limitations in paragraphs (a)(2)(ii) and
(e)(1) of this section may be waived by the Administrator, West Coast Region, for the purpose of
allowing transit through the ETP. The waiver will provide, in writing, the terms and conditions under
which the vessel must operate, including a requirement to report to the Administrator, West Coast
Region, the vessel's date of exit from or subsequent entry into the permit area.
(b) Permits —
(1) Vessel permit. The owner or managing owner of a U.S. purse seine fishing vessel of greater than 400
st (362.8 mt) carrying capacity that participates in commercial fishing operations in the ETP must
possess a valid vessel permit issued under paragraph (b) of this section. This permit is not
transferable and must be renewed annually. If a vessel permit holder surrenders his/her permit to the
Administrator, West Coast Region, the permit will not be returned and a new permit will not be issued
before the end of the calendar year. Vessel permits will be valid through December 31 of each year.
(2) Operator permit. The person in charge of and actually controlling fishing operations (hereinafter
referred to as the operator) on a U.S. purse seine fishing vessel engaged in commercial fishing
operations under a vessel permit must possess a valid operator permit issued under paragraph (b) of
this section. Such permits are not transferable and must be renewed annually. To receive a permit,
the operator must have satisfactorily completed all required training under paragraph (c)(5) of this
section. The operator's permit is valid only when the permit holder is on a vessel with a valid vessel
permit. Operator permits will be valid through December 31 of each year.

50 CFR 216.24(b)(2) (enhanced display)

page 33 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(b)(3)

(3) Possession and display. A valid vessel permit issued pursuant to paragraph (b)(1) of this section
must be on board the vessel while engaged in fishing operations, and a valid operator permit issued
pursuant to paragraph (b)(2) of this section must be in the possession of the operator to whom it
was issued. Permits must be shown upon request to NMFS enforcement agents, U.S. Coast Guard
officers, or designated agents of NMFS or the Inter-American Tropical Tuna Commission (IATTC)
(including observers). A vessel owner or operator who is at sea on a fishing trip when his or her
permit expires and to whom a permit for the next year has been issued, may take marine mammals
under the terms of the new permit without having to display it on board the vessel until the vessel
returns to port.
(4) Application for vessel permit. ETP tuna purse seine vessel permit application forms and instructions
for their completion are available from NMFS. To apply for an ETP vessel permit, a vessel owner or
managing owner must complete, sign, and submit the appropriate form via fax to (562) 980-4047, by
email to [email protected], or through an online permit system, allowing at least 15 days for
processing. To submit an ETP vessel permit application online, a request must first be made to
[email protected], and NMFS will give instructions about whether and how an online application
can be made. To request that a vessel in excess of 400 st (362.8 mt) carrying capacity be
categorized as active on the Vessel Register under § 300.22(b)(4)(ii) of this title in the following
calendar year, the owner or managing owner must submit the vessel permit application, payment of
the vessel permit application fee, and payment of the vessel assessment fee no later than
September 15 for vessels for which a DML is requested for the following year, and no later than
November 30 for vessels for which a DML is not requested for the following year.
(5) Application for operator permit. An applicant for an operator permit must complete, sign, and submit
the appropriate form obtained from NMFS and submit payment of the permit application fee to the
Administrator, West Coast Region, allowing at least 45 days for processing. Application forms and
instructions for their completion are available from NMFS.
(6) Fees —
(i)

Vessel permit application fees. Payment of the permit application fee is required before NMFS
will issue a permit. The Assistant Administrator may change the amount of this fee at any time
if a different fee is determined in accordance with the NOAA Finance Handbook. The amount of
the fee will be printed on the vessel permit application form provided by the Administrator, West
Coast Region.

(ii) Operator permit fee. The Assistant Administrator may require a fee to be submitted with an
application for an operator permit. The level of such a fee shall be determined in accordance
with the NOAA Finance Handbook and specified by the Administrator, West Coast Region, on
the application form.
(iii) Vessel assessment fee. The vessel assessment fee supports the placement of observers on
individual tuna purse seine vessels, and maintenance of the observer program, as established
by the IATTC or other approved observer program.
(A) The owner or managing owner of a purse seine vessel for which a DML has been
requested must submit the vessel assessment fee to the IATTC, no later than September
15 of the year prior to the calendar year for which the DML is requested. Payment of the
vessel assessment fee must be consistent with the fee for active status on the Vessel
Register under § 300.22(b)(4) of this title.

50 CFR 216.24(b)(6)(iii)(A) (enhanced display)

page 34 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(b)(6)(iii)(B)

(B) The owner or managing owner of a purse seine vessel for which active or inactive status
on the Vessel Register, as defined in § 300.21 of this title, has been requested, but for
which a DML has not been requested, must submit payment of the vessel assessment fee
to the IATTC, no later than November 30 of the year prior to the calendar year in which the
vessel will be listed on the Vessel Register. Payment of the vessel assessment fee is
required only if the vessel is listed as active and is required to carry an observer, or if the
vessel is listed as inactive and exceeds 400 st (362.8 mt) in carrying capacity. Payment of
the vessel assessment fee must be consistent with the vessel's status, either active or
inactive, on the Vessel Register in § 300.22(b)(4) of this title.
(C) The owner or managing owner of a purse seine vessel that is permitted and authorized
under an alternative international tuna purse seine fisheries management regime in the
Pacific Ocean must submit the vessel assessment fee to the IATTC, prior to obtaining an
observer and entering the ETP to fish. Consistent with § 300.22(b)(1) of this title, this
class of purse seine vessels is not required to be listed on the Vessel Register under §
300.22(b)(4) of this title in order to purse seine for tuna in the ETP during a single fishing
trip per calendar year of 90 days or less. Payment of the vessel assessment fee must be
consistent with the fee for active status on the Vessel Register under § 300.22(b)(4)(ii) of
this title.
(D) The owner or managing owner of a purse seine vessel listed as inactive on the Vessel
Register at the beginning of the calendar year and who requests active status on the
Vessel Register under § 300.22(b)(4) of this title during the year, must pay the vessel
assessment fee associated with active status, less the vessel assessment fee associated
with inactive status that was already paid, before NMFS will request the IATTC Director
change the status of the vessel from inactive to active. Payment of the vessel assessment
fee is required only if the vessel is required to carry an observer.
(E) The owner or managing owner of a purse seine vessel not listed on the Vessel Register at
the beginning of the calendar year and who requests to replace a vessel removed from
active status on the Vessel Register under § 300.22(b)(4) of this title during the year, must
pay the vessel assessment fee associated with active status only if the vessel is required
to carry an observer, before NMFS will request the IATTC Director change the status of the
vessel to active.
(F) Payments will be subject to a 10 percent surcharge if received under paragraph
(b)(6)(iii)(E) of this section for vessels that were listed as active on the Vessel Register in
the calendar year prior to the year for which active status was requested; or if received
after the dates specified in paragraph (b)(6)(iii)(A) or (B) of this section for vessels for
which active status is requested if the vessel was listed as active during the year the
request was made. Payments will not be subject to a 10 percent surcharge if received
under paragraph (b)(6)(iii)(C) or (D) of this section, or if received under paragraph
(b)(6)(iii)(E) of this section for vessels that were not listed as active on the Vessel Register
in the calendar year prior to the year for which active status was requested. Payments will
also not be subject to a 10 percent surcharge if received after the date specified in
paragraph (b)(6)(iii)(B) of this section for vessels for which inactive status is requested, or
for vessels for which active status is requested if the vessel was not listed as active
during the year the request was made. Payment of all vessel assessment fees described
in this section must be made to the IATTC.
50 CFR 216.24(b)(6)(iii)(F) (enhanced display)

page 35 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(b)(7)

(7) Application approval. The Administrator, West Coast Region, will determine the adequacy and
completeness of an application and, upon determining that an application is adequate and complete,
will approve that application and issue the appropriate permit, except for applicants having unpaid or
overdue civil penalties, criminal fines, or other liabilities incurred in a legal proceeding.
(8) Conditions applicable to all permits —
(i)

General conditions. Failure to comply with the provisions of a permit or with these regulations
may lead to suspension, revocation, modification, or denial of a permit. The permit holder,
vessel, vessel owner, operator, or master may be subject, jointly or severally, to the penalties
provided for under the MMPA. Procedures governing permit sanctions and denials are found at
subpart D of 15 CFR part 904.

(ii) Observer placement. By obtaining a permit, the permit holder consents to the placement of an
observer on the vessel during every trip involving operations in the ETP and agrees to payment
of the fees for observer placement. No observer will be assigned to a vessel unless that vessel
owner has submitted payment of observer fees to the Administrator, West Coast Region. The
observers may be placed under an observer program of NMFS, IATTC, or another observer
program approved by the Administrator, West Coast Region.
(iii) Explosives. The use of explosive devices is prohibited during all tuna purse seine operations
that involve marine mammals.
(iv) Reporting requirements.
(A) The vessel permit holder of each permitted vessel must notify the Administrator, West
Coast Region, or the IATTC contact designated by the Administrator, West Coast Region,
at least 5 days in advance of the vessel's departure on a fishing trip to allow for observer
placement on every trip. If the vessel permit holder would like to use an IATTC and
Western and Central Pacific Fisheries Commission (WCPFC) cross-endorsed observer
when fishing in the IATTC Convention Area, the notification must also include a request for
the placement of a cross-endorsed observer pursuant to the Memorandum of Cooperation
between the IATTC and WCPFC.
(B) The vessel permit holder must notify the Administrator, West Coast Region, or the IATTC
contact designated by the Administrator, West Coast Region, of any change of vessel
operator at least 48 hours prior to departing on a fishing trip. In the case of a change in
operator due to an emergency, notification must be made within 72 hours of the change.
(v) Data release. By using a permit, the permit holder authorizes the release to NMFS and the IATTC
of all data collected by observers aboard purse seine vessels during fishing trips under the
IATTC observer program or another international observer program approved by the
Administrator, West Coast Region. The permit holder must furnish the international observer
program with all release forms required to authorize the observer data to be provided to NMFS
and the IATTC. Data obtained under such releases will be used for the same purposes as would
data collected directly by observers placed by NMFS and will be subject to the same standards
of confidentiality.
(9) Mortality and serious injury reports. The Administrator, West Coast Region, will provide to the public
periodic status reports summarizing the estimated incidental dolphin mortality and serious injury by
U.S. vessels of individual species and stocks.

50 CFR 216.24(b)(9) (enhanced display)

page 36 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(c)

(c) Purse seining by vessels with Dolphin Mortality Limits (DMLs). In addition to the terms and conditions set
forth in paragraph (b) of this section, any permit for a vessel to which a DML has been assigned under
paragraph (c)(9) of this section and any operator permit when used on such a vessel are subject to the
following terms and conditions:
(1) A vessel may be used to chase and encircle schools of dolphins in the ETP only under the immediate
direction of the holder of a valid operator's permit.
(2) No retention of live marine mammals. Except as otherwise authorized by a specific permit, live
marine mammals incidentally taken must be immediately returned to the ocean without further
injury. The operator of a purse seine vessel must take every precaution to refrain from causing or
permitting incidental mortality or serious injury of marine mammals. Live marine mammals may not
be brailed, sacked up, or hoisted onto the deck during ortza retrieval.
(3) Gear and equipment required for valid permit. A vessel possessing a vessel permit for purse seining
involving the intentional taking of marine mammals may not engage in fishing operations involving
the intentional deployment of the net on or encirclement of dolphins unless it is equipped with a
dolphin safety panel in its purse seine, has the other required gear and equipment, and uses the
required procedures.
(i)

Dolphin safety panel. The dolphin safety panel must be a minimum of 180 fathoms in length (as
measured before installation), except that the minimum length of the panel in nets deeper than
18 strips must be determined in a ratio of 10 fathoms in length for each strip of net depth. It
must be installed so as to protect the perimeter of the backdown area. The perimeter of the
backdown area is the length of corkline that begins at the outboard end of the last bowbunch
pulled and continues to at least two-thirds the distance from the backdown channel apex to the
stern tiedown point. The dolphin safety panel must consist of small mesh webbing not to
exceed 11⁄4 inches (3.18 centimeters (cm)) stretch mesh extending downward from the
corkline and, if present, the base of the dolphin apron to a minimum depth equivalent to two
strips of 100 meshes of 41⁄4 inches (10.80 cm) stretch mesh webbing. In addition, at least a
20-fathom length of corkline must be free from bunchlines at the apex of the backdown
channel.

(ii) Dolphin safety panel markers. Each end of the dolphin safety panel and dolphin apron, if
present, must be identified with an easily distinguishable marker.
(iii) Dolphin safety panel hand holds. Throughout the length of the corkline under which the dolphin
safety panel and dolphin apron are located, hand hold openings must be secured so that they
will not allow the insertion of a 13⁄8 inch (3.50 cm) diameter cylindrical-shaped object.
(iv) Dolphin safety panel corkline hangings. Throughout the length of the corkline under which the
dolphin safety panel and dolphin apron if present, are located, corkline hangings must be
inspected by the vessel operator following each trip. Hangings found to have loosened to the
extent that a cylindrical-shaped object with a 13⁄8 inch (3.50 cm) diameter can be inserted
between the cork and corkline hangings, must be tightened so as not to allow the insertion of a
cylindrical-shaped object with a 13⁄8 inch (3.50 cm) diameter.
(v) Speedboats. A minimum of three speedboats in operating condition must be carried. All
speedboats carried aboard purse seine vessels and in operating condition must be rigged with
tow lines and towing bridles or towing posts. Speedboat hoisting bridles may not be substituted
for towing bridles.
50 CFR 216.24(c)(3)(v) (enhanced display)

page 37 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(c)(3)(vi)

(vi) Raft. A raft suitable to be used as a dolphin observation-and-rescue platform must be carried.
(vii) Facemask and snorkel, or viewbox. At least two facemasks and snorkels or viewboxes must be
carried.
(viii) Lights. The vessel must be equipped with long-range, high-intensity floodlights with a sodium
lamp of at least 1000 watts, or a multivapour lamp of at least 1500 watts, for use in darkness to
ensure sufficient light to observe that procedures for dolphin release are carried out and to
monitor incidental dolphin mortality.
(4) Vessel inspection —
(i)

Twice per year. At least twice during each calendar year, purse seine nets and other gear and
equipment required under § 216.24(c)(3) must be made available for inspection and for a trial
set/net alignment by an authorized NMFS inspector or IATTC staff as specified by the
Administrator, West Coast Region, in order to obtain a vessel permit. The first such inspection
shall be carried out before the vessel's request for a DML is submitted to the IATTC. The
second such inspection shall be carried out before notification of any reallocation of DMLs for
vessels with full-year DMLs or during the last quarter of the year for vessels with secondsemester DMLs.

(ii) Reinspection. Purse seine nets and other gear and equipment required by these regulations
must be made available for reinspection by an authorized NMFS inspector or IATTC staff as
specified by the Administrator, West Coast Region. The vessel permit holder must notify the
Administrator, West Coast Region, of any net modification at least 5 days prior to departure of
the vessel in order to determine whether a reinspection or trial set/net alignment is required.
(iii) Failure to pass inspection. Upon failure to pass an inspection or reinspection, a vessel may not
engage in purse seining involving the intentional taking of marine mammals until the
deficiencies in gear or equipment are corrected as required by NMFS.
(5) Operator permit holder training requirements. An operator must maintain proficiency sufficient to
perform the procedures required herein, and must attend and satisfactorily complete a formal
training session approved by the Administrator, West Coast Region, in order to obtain his or her
permit. At the training session, an attendee will be instructed on the relevant provisions and
regulatory requirements of the MMPA and the IDCP, and the fishing gear and techniques that are
required for reducing serious injury and mortality of dolphin incidental to purse seining for tuna.
Operators who have received a written certificate of satisfactory completion of training and who
possess a current or previous calendar year permit will not be required to attend additional formal
training sessions unless there are substantial changes in the relevant provisions or implementing
regulations of the MMPA or the IDCP, or in fishing gear and techniques. Additional training may be
required for any operator who is found by the Administrator, West Coast Region, to lack proficiency in
the required fishing procedures or familiarity with the relevant provisions or regulations of the MMPA
or the IDCP.
(6) Marine mammal release requirements. All operators fishing pursuant to paragraph (c) of this section
must use the following procedures during all sets involving the incidental taking of marine mammals
in association with the capture and landing of tuna.
(i)

Backdown procedure. Backdown must be performed following a purse seine set in which
dolphins are captured in the course of catching tuna, and must be continued until it is no longer
possible to remove live dolphins from the net by this procedure. At least one crewmember must

50 CFR 216.24(c)(6)(i) (enhanced display)

page 38 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(c)(6)(ii)

be deployed during backdown to aid in the release of dolphins. Thereafter, other release
procedures required will be continued so that all live dolphins are released prior to the initiation
of the sack-up procedure.
(ii) Prohibited use of sharp or pointed instrument. The use of a sharp or pointed instrument to
remove any marine mammal from the net is prohibited.
(iii) Sundown sets prohibited. On every set encircling dolphin, the backdown procedure must be
completed no later than one-half hour after sundown, except as provided here. For the purpose
of this section, sundown is defined as the time at which the upper edge of the sun disappears
below the horizon or, if the view of the sun is obscured, the local time of sunset calculated from
tables developed by the U.S. Naval Observatory or other authoritative source approved by the
Administrator, West Coast Region. A sundown set is a set in which the backdown procedure
has not been completed and rolling the net to sack-up has not begun within one-half hour after
sundown. Should a set extend beyond one-half hour after sundown, the operator must use the
required marine mammal release procedures including the use of the high intensity lighting
system. In the event a sundown set occurs where the seine skiff was let go 90 or more minutes
before sundown, and an earnest effort to rescue dolphins is made, the International Review
Panel of the IDCP may recommend to the United States that in the view of the International
Review Panel, prosecution by the United States is not recommended. Any such
recommendation will be considered by the United States in evaluating the appropriateness of
prosecution in a particular circumstance.
(iv) Dolphin safety panel. During backdown, the dolphin safety panel must be positioned so that it
protects the perimeter of the backdown area. The perimeter of the backdown area is the length
of corkline that begins at the outboard end of the last bow bunch pulled and continues to at
least two-thirds the distance from the backdown channel apex to the stern tiedown point.
(7) Experimental fishing operations. The Administrator, West Coast Region, may authorize experimental
fishing operations, consistent with the provisions of the IDCP, for the purpose of testing proposed
improvements in fishing techniques and equipment that may reduce or eliminate dolphin mortality or
serious injury, or do not require the encirclement of dolphins in the course of fishing operations. The
Administrator, West Coast Region, may waive, as appropriate, any requirements of this section
except DMLs and the obligation to carry an observer.
(i)

A vessel permit holder may apply for an experimental fishing operation waiver by submitting the
following information to the Administrator, West Coast Region, no less than 90 days before the
date the proposed operation is intended to begin:
(A) The name(s) of the vessel(s) and the vessel permit holder(s) to participate;
(B) A statement of the specific vessel gear and equipment or procedural requirement to be
exempted and why such an exemption is necessary to conduct the experiment;
(C) A description of how the proposed modification to the gear and equipment or procedures
is expected to reduce incidental mortality or serious injury of marine mammals;
(D) A description of the applicability of this modification to other purse seine vessels;
(E) The planned design, time, duration, and general area of the experimental operation;
(F) The name(s) of the permitted operator(s) of the vessel(s) during the experiment;

50 CFR 216.24(c)(7)(i)(F) (enhanced display)

page 39 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(c)(7)(i)(G)

(G) A statement of the qualifications of the individual or company doing the analysis of the
research; and
(H) Signature of the permitted operator or of the operator's representative.
(ii) The Administrator, West Coast Region, will acknowledge receipt of the application and, upon
determining that it is complete, will publish a notice in the FEDERAL REGISTER summarizing the
application, making the full application available for inspection and inviting comments for a
minimum period of 30 days from the date of publication.
(iii) The Administrator, West Coast Region, after considering the information submitted in the
application identified in paragraph (c)(7)(i) of this section and the comments received, will
either issue a waiver to conduct the experiment that includes restrictions or conditions deemed
appropriate, or deny the application, giving the reasons for denial.
(iv) A waiver for an experimental fishing operation will be valid only for the vessels and operators
named in the permit, for the time period and areas specified, for trips carrying an observer
designated by the Administrator, West Coast Region, and when all the terms and conditions of
the permit are met.
(v) The Administrator, West Coast Region, may suspend or revoke an experimental fishing waiver in
accordance with 15 CFR part 904 if the terms and conditions of the waiver or the provisions of
the regulations are not followed.
(8) Operator permit holder performance requirements. [Reserved]
(9) Vessel permit holder dolphin mortality limits. For purposes of this paragraph, the term “vessel permit
holder” includes both the holder of a current vessel permit and also the holder of a vessel permit for
the following year.
(i)

By September 1 each year, a vessel permit holder desiring a DML for the following year must
provide to the Administrator, West Coast Region, the name of the U.S. purse seine fishing
vessel(s) of carrying capacity greater than 400 st (362.8 mt) that the owner intends to use to
intentionally deploy purse seine fishing nets in the ETP to encircle dolphins in an effort to
capture tuna during the following year. NMFS will forward the list of purse seine vessels to the
Director of the IATTC on or before October 1, or as otherwise required by the IDCP, for
assignment of a DML for the following year under the provisions of Annex IV of the Agreement
on the IDCP.

(ii) Each vessel permit holder that desires a DML only for the period between July 1 to December
31 must provide the Administrator, West Coast Region, by September 1 of the prior year, the
name of the U.S. purse seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying
capacity that the owner intends to use to intentionally deploy purse seine fishing nets in the
ETP to encircle dolphins in an effort to capture tuna during the period. NMFS will forward the
list of purse seine vessels to the Director of the IATTC on or before October 1, or as otherwise
required under the IDCP, for possible assignment of a DML for the 6-month period July 1 to
December 31. Under the IDCP, the DML will be calculated by the IDCP from any unutilized pool
of DMLs in accordance with the procedure described in Annex IV of the Agreement on the IDCP
and will not exceed one-half of an unadjusted full-year DML as calculated by the IDCP.
(iii)

50 CFR 216.24(c)(9)(iii) (enhanced display)

page 40 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(c)(9)(iii)(A)

(A) The Administrator, West Coast Region, will notify vessel owners of the DML assigned for
each vessel for the following year, or the second half of the year, as applicable.
(B) The Administrator, West Coast Region, may adjust the DMLs in accordance with Annex IV
of the Agreement on the IDCP. All adjustments of full-year DMLs will be made before
January 1, and the Administrator, West Coast Region, will notify the Director of the IATTC
of any adjustments prior to a vessel departing on a trip using its adjusted DML. The
notification will be no later than February 1 in the case of adjustments to full-year DMLs,
and no later than May 1 in the case of adjustments to DMLs for the second half of the
year.
(C) In accordance with the requirements of Annex IV of the Agreement on the IDCP, the
Administrator, West Coast Region, may adjust a vessel's DML if it will further scientific or
technological advancement in the protection of marine mammals in the fishery or if the
past performance of the vessel indicates that the protection or use of the yellowfin tuna
stocks or marine mammals is best served by the adjustment, within the mandates of the
MMPA. Experimental fishing operation waivers or scientific research permits will be
considered a basis for adjustments.
(iv)
(A) A vessel assigned a full-year DML that does not make a set on dolphins by April 1 or that
leaves the fishery will lose its DML for the remainder of the year, unless the failure to set
on dolphins is due to force majeure or other extraordinary circumstances as determined
by the International Review Panel.
(B) A vessel assigned a DML for the second half of the year will be considered to have lost its
DML if the vessel has not made a set on dolphins before December 31, unless the failure
to set on dolphins is due to force majeure or extraordinary circumstances as determined
by the International Review Panel.
(C) Any vessel that loses its DML for 2 consecutive years will not be eligible to receive a DML
for the following year.
(D) NMFS will determine, based on available information, whether a vessel has left the fishery.
(1) A vessel lost at sea, undergoing extensive repairs, operating in an ocean area other
than the ETP, or for which other information indicates that vessel will no longer be
conducting purse seine operations in the ETP for the remainder of the period covered
by the DML will be determined to have left the fishery.
(2) NMFS will make all reasonable efforts to determine the intentions of the vessel
owner. The owner of any vessel that has been preliminarily determined to have left
the fishery will be provided notice of such preliminary determination and given the
opportunity to provide information on whether the vessel has left the fishery prior to
NMFS making a final determination under 15 CFR part 904 and notifying the IATTC.
(v) Any vessel that exceeds its assigned DML after any applicable adjustment under paragraph
(c)(9)(iii) of this section will have its DML for the subsequent year reduced by 150 percent of
the overage, unless another adjustment is determined by the International Review Panel, as
mandated by the Agreement on the IDCP.

50 CFR 216.24(c)(9)(v) (enhanced display)

page 41 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(c)(9)(vi)

(vi) A vessel that is covered by a valid vessel permit and that does not normally fish for tuna in the
ETP but desires to participate in the fishery on a limited basis may apply for a per-trip DML from
the Administrator, West Coast Region, at any time, allowing at least 60 days for processing. The
request must state the expected number of trips involving sets on dolphins and the anticipated
dates of the trip or trips. The request will be forwarded to the Secretariat of the IATTC for
processing in accordance with Annex IV of the Agreement on the IDCP. A per-trip DML will be
assigned if one is made available in accordance with the terms of Annex IV of the Agreement
on the IDCP. If a vessel assigned a per-trip DML does not set on dolphins during that trip, the
vessel will be considered to have lost its DML unless this was a result of force majeure or other
extraordinary circumstances as determined by the International Review Panel. After two
consecutive losses of a DML, a vessel will not be eligible to receive a DML for the next fishing
year.
(vii) Observers will make their records available to the vessel operator at any reasonable time,
including after each set, in order for the operator to monitor the balance of the DML(s)
remaining for use.
(viii) Vessel and operator permit holders must not deploy a purse seine net on or encircle any school
of dolphins containing individuals of a particular stock of dolphins for the remainder of the
calendar year:
(A) after the applicable per-stock per-year dolphin mortality limit for that stock of dolphins (or
for that vessel, if so assigned) has been reached or exceeded; or
(B) after the time and date provided in actual notification or notification in the FEDERAL
REGISTER by the Administrator, West Coast Region, based upon the best available evidence,
stating when any applicable per-stock per-year dolphin mortality limit has been reached or
exceeded, or is expected to be reached in the near future.
(ix) If individual dolphins belonging to a stock that is prohibited from being taken are not reasonably
observable at the time the net skiff attached to the net is released from the vessel at the start
of a set, the fact that individuals of that stock are subsequently taken will not be cause for
enforcement action provided that all procedures required by the applicable regulations have
been followed.
(x) Vessel and operator permit holders must not intentionally deploy a purse seine net on or
encircle dolphins intentionally:
(A) after a set in which the vessel's DML, as adjusted, has been reached or exceeded; or
(B) after the date and time provided in actual notification by letter, facsimile, radio, or
electronic mail, or notice in the FEDERAL REGISTER by the Administrator, West Coast Region,
based upon the best available evidence, that intentional sets on dolphins must cease
because the total of the DMLs assigned to the U.S. fleet has been reached or exceeded, or
is expected to be exceeded in the near future.
(d) Purse seining by vessels without assigned DMLs. In addition to the requirements of paragraph (b) of this
section, a vessel permit used for a trip not involving an assigned DML and the operator's permit when
used on such a vessel are subject to the following terms and conditions: a permit holder may take marine
mammals provided that such taking is an accidental occurrence in the course of normal commercial
fishing operations and the vessel does not intentionally deploy its net on, or to encircle, dolphins; marine
mammals taken incidental to such commercial fishing operations must be immediately returned to the
50 CFR 216.24(d) (enhanced display)

page 42 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(e)

environment where captured without further injury, using release procedures such as hand rescue, or
aborting the set at the earliest effective opportunity; and the use of one or more rafts and facemasks or
viewboxes to aid in the rescue of dolphins is recommended.
(e) Observers —
(1) The holder of a vessel permit must allow an observer duly authorized by the Administrator, West
Coast Region, to accompany the vessel on all fishing trips in the ETP for the purpose of conducting
research and observing operations, including collecting information that may be used in civil or
criminal penalty proceedings, forfeiture actions, or permit sanctions. A vessel that fails to carry an
observer in accordance with these requirements may not engage in fishing operations.
(i)

Exemption from observer requirement. The Administrator, West Coast Region (or designee), may
issue a temporary written exemption from the observer requirement in this paragraph (e)(1) if
the Parties to the AIDCP and/or Members of the IATTC have adopted emergency observer
exemption procedures to address relevant global or regional health, safety, and security
concerns, as well as other international emergencies and crises. Such exemptions will be
issued on a case-by-case basis for a single fishing trip, in accordance with the AIDCP/IATTC
exemption procedures in effect at the time of the request. Exemptions from the requirement in
this paragraph (e)(1) will only be issued when AIDCP/IATTC exemption procedures are in effect
and are only valid for as long as the AIDCP/IATTC exemption procedures remain in effect.
NMFS will notify the affected fleet via email when existing AIDCP/IATTC exemption procedures
expire. NMFS will also notify the affected fleet via email and the public by publication of a
document in the FEDERAL REGISTER if new exemption procedures are adopted by the Parties to
the AIDCP and/or the Members of the IATTC. Requests for exemption must be made to the
Administrator, West Coast Region, via email at [email protected], or in a manner acceptable
to the Administrator, West Coast Region.

(ii) [Reserved]
(2) Research and observation duties will be carried out in such a manner as to minimize interference
with commercial fishing operations. Observers must be provided access to vessel personnel and to
dolphin safety gear and equipment, electronic navigation equipment, radar displays, high powered
binoculars, and electronic communication equipment. The navigator must provide true vessel
locations by latitude and longitude, accurate to the nearest minute, upon request by the observer.
Observers must be provided with adequate space on the bridge or pilothouse for clerical work, as
well as space on deck adequate for carrying out observer duties. No vessel owner, master, operator,
or crew member of a permitted vessel may impair, or in any way interfere with, the research or
observations being carried out. Masters must allow observers to use vessel communication
equipment necessary to report information concerning the take of marine mammals and other
observer collected data upon request of the observer.
(3) Any marine mammals killed during fishing operations that are accessible to crewmen and requested
from the permit holder or master by the observer must be brought aboard the vessel and retained for
biological processing, until released by the observer for return to the ocean. Whole marine mammals
or marine mammal parts designated as biological specimens by the observer must be retained in
cold storage aboard the vessel until retrieved by authorized personnel of NMFS or the IATTC when
the vessel returns to port for unloading.

50 CFR 216.24(e)(3) (enhanced display)

page 43 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(e)(4)

(4) It is unlawful for any person to forcibly assault, impede, intimidate, interfere with, or to influence or
attempt to influence an observer, or to harass (including sexual harassment) an observer by conduct
that has the purpose or effect of unreasonably interfering with the observer's work performance, or
that creates an intimidating, hostile, or offensive environment. In determining whether conduct
constitutes harassment, the totality of the circumstances, including the nature of the conduct and
the context in which it occurred, will be considered. The determination of the legality of a particular
action will be made from the facts on a case-by-case basis.
(i)

Requirements for owners and operators of U.S. purse seine vessels for reporting and actions in
response to observer safety are at § 300.29 of this title.

(ii) [Reserved]
(5)
(i)

All observers must be provided sleeping, toilet and eating accommodations at least equal to
that provided to a full crew member. A mattress or futon on the floor or a cot is not acceptable
in place of a regular bunk. Meal and other galley privileges must be the same for the observer
as for other crew members.

(ii) Female observers on a vessel with an all-male crew must be accommodated either in a singleperson cabin or, if reasonable privacy can be ensured by installing a curtain or other temporary
divider, in a two-person cabin shared with a licensed officer of the vessel. If the cabin assigned
to a female observer does not have its own toilet and shower facilities that can be provided for
the exclusive use of the observer, then a schedule for time-sharing common facilities must be
established before the placement meeting and approved by NMFS or other approved observer
program and must be followed during the entire trip.
(iii) In the event there are one or more female crew members, the female observer must be provided
a bunk in a cabin shared solely with female crew members, and provided toilet and shower
facilities shared solely with these female crew members.
(f) Importation, purchase, shipment, sale and transport.
(1)
(i)

It is illegal to import into the United States any fish, whether fresh, frozen, or otherwise prepared,
if the fish have been caught with commercial fishing technology that results in the incidental kill
or incidental serious injury of marine mammals in excess of that allowed under this part for
U.S. fishermen, or as specified at paragraph (f)(6) of this section.

(ii) For purposes of this paragraph (f), and in applying the definition of an “intermediary nation,” an
import occurs when the fish or fish product is released from a nation's Customs' custody and
enters into the commerce of the nation. For other purposes, “import” is defined in § 216.3.
(2) Imports requiring a Fisheries Certificate of Origin and an International Fisheries Trade Permit.
Shipments of tuna, tuna products, and certain other fish products identified in paragraphs (f)(2)(i)
through (iii) of this section may not be imported into the United States unless: a scanned copy of a
properly completed Fisheries Certificate of Origin (FCO), NOAA Form 370, associated certifications
and statements described in § 216.91(a), and required data set are filed electronically with U.S.
Customs and Border Protection (CBP) at the time of, or in advance of, importation as required under
§ 300.323; and the importer of record designated on the entry summary (Customs Form 7501) holds

50 CFR 216.24(f)(2) (enhanced display)

page 44 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(2)(i)

a valid International Fisheries Trade Permit as specified at § 300.322 of this title. “Required data set”
has the same meaning as § 300.321 of this title (see definition of “Documentation and data sets
required”).
(i)

Imports requiring a Fisheries Certificate of Origin, subject to yellowfin tuna embargo. All
shipments containing yellowfin tuna or yellowfin tuna products (other than fresh tuna) imported
into the United States must be accompanied by an FCO, including, but not limited to, those
imported under the following Harmonized Tariff Schedule of the United States (HTS) numbers.
Updated HTS numbers can be identified by referencing the most current HTS in effect at the
time of importation, available at www.usitc.gov. The scope of yellowfin tuna embargoes and
procedures for attaining an affirmative finding are described under paragraphs (f)(6) and (f)(8)
of this section, respectively.
(A) Frozen: (products containing Yellowfin).
0303.42.0020 Yellowfin tunas, whole, frozen
0303.42.0040 Yellowfin tunas, head-on, frozen, except whole
0303.42.0060 Yellowfin tunas, other, frozen, except whole, head-on, fillets, livers and roes
0304.87.0000 Tuna fish fillets, frozen, not elsewhere specified or indicated (NESOI)
0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing with their contents over
6.8 kg each

(B) Airtight Containers: (products containing Yellowfin).
1604.14.1010

Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers
weighing with their contents not more than 6.8 kg each

1604.14.1099

Tunas and skipjack, in oil, in airtight containers, NESOI

1604.14.2291

Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg,
4.8% of U.S. consumption of canned tuna during preceding year

1604.14.2299

Tunas, NESOI and skipjack, not in oil, in other airtight containers not over 7 kg, 4.8%
of U.S. consumption of canned tuna during preceding year

1604.14.3091

Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers,
weighing with their contents not more than 6.8 kg each

1604.14.3099

Other tunas and skipjack, not in oil, in airtight containers, NESOI

(C) Loins: (products containing Yellowfin).
1604.14.4000

Tunas and skipjacks, prepared or preserved, not in airtight containers, not in oil, in
bulk or immediate containers with their contents over 6.8 kg each

1604.14.5000

Tunas and skipjack, prepared or preserved, not in airtight containers, NESOI

(D) Other: (products containing Yellowfin).
0511.91.0090 Fish, shellfish products unfit for human consumption
50 CFR 216.24(f)(2)(i)(A) (enhanced display)

page 45 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(2)(ii)

1604.20.1000 Fish pastes
1604.20.1500 Fish balls, cakes and puddings, in oil
1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers
1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate
containers weighing with their contents not over 6.8 kg each
1604.20.3000 Fish balls, cakes and puddings, NESOI
1604.20.4000 Fish sticks, not cooked, nor in oil
1604.20.5010 Fish sticks, cooked and frozen
1604.20.5090 Fish sticks, NESOI
2309.10.0010 Dog or cat food, in airtight containers
(ii) Imports requiring a Fisheries Certificate of Origin, not subject to yellowfin tuna embargo. All
shipments containing tuna or tuna products (other than fresh tuna or yellowfin tuna identified in
paragraph (f)(2)(i) of this section) imported into the United States must be accompanied by an
FCO, including, but not limited to, those imported under the following HTS numbers. Updated
HTS numbers can be identified by referencing the most current HTS in effect at the time of
importation, available at www.usitc.gov.
(A) Frozen: (other than Yellowfin).
0303.41.0000 Albacore or longfinned tunas, frozen, except fillets, livers and roes
0303.43.0000 Skipjack tunas or stripe-bellied bonito, frozen, except fillets, livers and roes
0303.44.0000 Bigeye tunas, frozen, except fillets, livers and roes
0303.45.0110 Atlantic Bluefin, frozen, except fillets, livers and roes
0303.45.0150 Pacific Bluefin, frozen, except fillets, livers and roes
0303.46.0000 Southern bluefin tunas, frozen, except fillets, livers and roes
0303.49.0200 Tunas, frozen, except fillets, livers and roes, NESOI
0304.87.0000 Tuna fish fillets, frozen, NESOI

50 CFR 216.24(f)(2)(ii)(A) (enhanced display)

page 46 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(2)(ii)(A)

0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing with their contents over
6.8 kg each, NESOI

(B) Airtight Containers: (other than Yellowfin).
1604.14.1010

Tunas and skipjack, in oil, in airtight containers, in foil or other flexible containers
weighing with their contents not more than 6.8 kg each

1604.14.1091

Tunas, albacore, in oil, in airtight containers, NESOI

1604.14.1099

Tunas and skipjack, in oil, in airtight containers, NESOI

1604.14.2251

Albacore tuna, not in oil, in foil/flexible airtight containers, weighing not over 6.8 kg,
4.8% of U.S. consumption of canned tuna during preceding year

1604.14.2259

Albacore tuna, not in oil, in airtight containers weighing not over 7 kg, NESOI, 4.8%
of U.S. consumption of canned tuna during preceding year

1604.14.2291

Other tunas and skipjack, no oil, in foil/flexible airtight containers, not over 6.8 kg,
4.8% of U.S. consumption of canned tuna during preceding year

1604.14.2299

Tunas, NESOI and skipjack, not in oil, in other airtight containers, not over 7 kg, 4.8%
of U.S. consumption of canned tuna during preceding year

1604.14.3051

Tuna, albacore not in oil, in foil or other flexible airtight containers, weighing with
contents not more than 6.8 kg each, NESOI

1604.14.3059

Tuna, albacore not in oil, in airtight containers, NESOI

1604.14.3091

Tunas and skipjack, NESOI, not in oil, in foil or other flexible airtight containers,
weighing with their contents not more than 6.8 kg each

1604.14.3099

Other tunas and skipjack, not in oil, in airtight containers, NESOI

(C) Loins: (other than Yellowfin).
1604.14.4000

Tunas and skipjacks, prepared or preserved, not in airtight containers, not in oil, in
bulk or immediate containers with their contents over 6.8 kg each

1604.14.5000

Tunas and skipjack, prepared or preserved, not in airtight containers, NESOI

(D) Other: (only if the product contains tuna).
0511.91.0090 Fish, shellfish products unfit for human consumption
1604.20.1000 Fish pastes
1604.20.1500 Fish balls, cakes and puddings, in oil
1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8 kg, in airtight containers
1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight containers, in immediate
containers weighing with their contents not over 6.8 kg each
1604.20.3000 Fish balls, cakes and puddings, NESOI
1604.20.4000 Fish sticks, not cooked, nor in oil
50 CFR 216.24(f)(2)(ii)(A) (enhanced display)

page 47 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(2)(iii)

1604.20.5010 Fish sticks, cooked and frozen
1604.20.5090 Fish sticks, NESOI
2309.10.0010 Dog or cat food, in airtight containers
(iii) Exports from driftnet nations only, requiring a Fisheries Certificate of Origin and official
certification. The following HTS numbers identify categories of fish and shellfish, in addition to
those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, known to have been
harvested using a large-scale driftnet and imported into the United States. Shipments exported
from a large-scale driftnet nation, as identified under paragraph (f)(7) of this section, and
imported into the United States, including but not limited to those imported into the United
States under any of the HTS numbers listed in paragraph (f)(2) of this section, must be
accompanied by an FCO and the official statement described in paragraph (f)(4)(xiii) of this
section.
(A) Frozen:
0303.11.0000 Sockeye (red) salmon (Oncorhynchus nerka), frozen, except fillets, livers and roes
0303.12.0012 Chinook (King) salmon (Oncorhynchus tschawytscha), frozen, except fillets, livers
and roes
0303.12.0022 Chum (dog) salmon (Oncorhynchus keta), frozen, except fillets, livers and roes
0303.12.0032 Pink (humpie) salmon (Oncorhynchus gorbuscha), frozen, except fillets, livers and
roes
0303.12.0052 Coho (silver) salmon (Oncorhynchus kisutch), frozen, except fillets, livers and roes
0303.12.0062 Pacific salmon (Oncorhynchus masou, Oncorhynchus rhodurus), frozen, except
fillets, livers and roes, NESOI
0303.13.0000 Atlantic salmon (Salmo salar) and Danube salmon (Hucho hucho), frozen, except
fillets, livers and roes
0303.14.0000 Trout (Salmo trutta; Oncorhynchus mykiss, clarki, aguabonita, gilae, apache, and
chrysogaster), frozen, except fillets, livers and roes
0303.19.0100 Salmonidae, frozen, except fillets, livers and roes, NESOI
0303.57.0010 Swordfish steaks, frozen, except fillets
0303.57.0090 Swordfish, frozen, except steaks, fillets, livers and roes
0303.81.0010 Dogfish (Squalus spp.), frozen, except fillets, livers and roes
0303.81.0090 Sharks, frozen, except dogfish, fillets, livers and roes
50 CFR 216.24(f)(2)(iii)(A) (enhanced display)

page 48 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(2)(iii)(B)

0303.89.0079 Fish, other, frozen, except fillets, livers and roes, NESOI
0304.81.5010 Atlantic Salmonidae (Salmo salar) fillets, frozen, NESOI
0304.81.5090 Salmonidae fillets, frozen, except Atlantic salmon, NESOI
0304.89.1090 Fish fillets, skinned, frozen blocks weighing over 4.5 kg each, to be minced,
ground or cut into pieces of uniform weights and dimensions, NESOI
0304.91.1000 Swordfish, frozen, in bulk or in immediate containers weighing over 6.8 kg each
0304.91.9000 Swordfish, frozen, NESOI
0304.99.9191 Fish fillets, ocean, frozen, NESOI
0307.49.0010 Squid fillets, frozen
0307.49.0022 Squid, Loligo opalescens, NESOI
0307.49.0024 Squid, Loligo pealei, NESOI
0307.49.0029 Squid, Loligo, other, NESOI
0307.49.0050 Squid, other, NESOI
(B) Canned:
1604.11.2020 Pink (humpie) salmon, whole or in pieces, but not minced, in oil, in airtight
containers
1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced, in oil, in airtight
containers
1604.11.2090 Salmon NESOI, whole or in pieces, but not minced, in oil, in airtight containers
1604.11.4010 Chum (dog) salmon, not in oil, canned
1604.11.4020 Pink (humpie) salmon, not in oil, canned
1604.11.4030 Sockeye (red) salmon, not in oil, canned
1604.11.4040 Salmon, NESOI, not in oil, canned
1604.11.4050 Salmon, whole or in pieces, but not minced, NESOI
1604.19.2100 Fish, NESOI, not in oil, in airtight containers

50 CFR 216.24(f)(2)(iii)(B) (enhanced display)

page 49 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(2)(iii)(C)

1604.19.3100 Fish, NESOI, in oil, in airtight containers
1605.54.6020 Squid, Loligo, prepared or preserved
1605.54.6030 Squid, except Loligo, prepared or preserved
(C) Other:
0305.39.6080 Fish fillets, dried, salted or in brine, but not smoked, NESOI
0305.41.0000 Pacific salmon (Oncorhynchus spp.), Atlantic salmon (Salmo salar), and Danube
salmon (Hucho hucho), including fillets, smoked
0305.49.4041 Fish including fillets, smoked, NESOI
0305.59.0000 Fish, dried, whether or not salted but not smoked, NESOI
0305.69.4000 Salmon, salted but not dried or smoked; in brine
0305.69.5001 Fish in immediate containers weighing with their contents 6.8 kg or less each,
salted but not dried or smoked; in brine, NESOI
0305.69.6001 Fish, salted but not dried or smoked; in brine, NESOI
0305.71.0000 Shark fins, dried, whether or not salted but not smoked
0305.49.0010 Squid, frozen, fillets
0307.49.0022 Squid, Loligo opalescens, frozen (except fillets), dried, salted or in brine
0307.49.0024 Squid, Loligo pealei, frozen (except fillets), dried, salted or in brine
0307.49.0029 Squid, Loligo, frozen (except fillets), dried, salted or in brine, NESOI
0307.49.0050 Squid, other, frozen (except fillets), dried, salted or in brine, except Loligo squid
0307.49.0060 Cuttle fish (Sepia officinalis, Rossia macrosoma, Sepiola spp.), frozen, dried,
salted or in brine
(3) Disposition of Fisheries Certificates of Origin. The FCO described in paragraph (f)(4) of this section
may be obtained from the Administrator, West Coast Region, or downloaded from the internet at
https://www.fisheries.noaa.gov/national/marine-mammal-protection/noaa-form-370-fisheriescertificate-origin.
(i)

A properly completed FCO, and its attached certifications and statements as described in §
216.91(a), must accompany the required CBP entry documents that are filed at the time of, or in
advance of, importation.

50 CFR 216.24(f)(3)(i) (enhanced display)

page 50 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(3)(ii)

(ii) FCOs and associated certifications and statements as described in § 216.91(a) must be
provided electronically to CBP as indicated in paragraph (f)(2) of this section.
(iii) FCOs that accompany imported shipments of tuna destined for further processing in the United
States must be endorsed at each change in ownership and submitted to the Administrator,
West Coast Region, by the last endorser when all required endorsements are completed. Such
FCOs must be submitted as specified in § 216.93(d)(2).
(iv) Importers and exporters are required to retain their records, including FCOs, import or export
documents, invoices, and bills of lading for 2 years, and such records must be made available
within 30 days of a request by the Secretary or the Administrator, West Coast Region.
(4) Contents of Fisheries Certificate of Origin. An FCO, certified to be accurate by the exporter(s) of the
accompanying shipment, must include the following information:
(i)

CBP entry identification;

(ii) Date of entry;
(iii) Exporter's full name and complete address;
(iv) Importer's or consignee's full name and complete address;
(v) Species description, product form, and HTS number;
(vi) Total net weight of the shipment in kilograms;
(vii) Ocean area where the fish were harvested (ETP, western Pacific Ocean, south Pacific Ocean,
north Pacific Ocean, eastern Atlantic Ocean, western Atlantic Ocean, Caribbean Sea, Indian
Ocean, or other);
(viii) Type of fishing gear used to harvest the fish (purse seine, longline, baitboat, large-scale driftnet,
gillnet, pole and line/hook and line, or other);
(ix) Country under whose laws the harvesting vessel operated based upon the flag of the vessel or,
if a certified charter vessel, the country that accepted responsibility for the vessel's fishing
operations;
(x) Dates on which the fishing trip began and ended;
(xi) The name of the harvesting vessel;
(xii) Dolphin-safe condition of the shipment, described by checking the appropriate statement on the
form and attaching additional certifications as described in § 216.91(a) if required;
(xiii) For shipments containing fish or fish products exported from, or harvested on the high seas by
vessels of a nation known to use large-scale driftnets, as determined by the Secretary pursuant
to paragraph (f)(7) of this section, the High Seas Driftnet Certification contained on the FCO
must be dated and signed by a responsible government official of the large-scale driftnet
nation, certifying that the fish or fish products were harvested by a method other than largescale driftnet; and
(xiv) Each importer, exporter, or processor who takes custody of the shipment must sign and date
the form to certify that the form and attached documentation accurately describes the
shipment of fish that they accompany.
50 CFR 216.24(f)(4)(xiv) (enhanced display)

page 51 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(5)

(5) Dolphin-safe label. Tuna or tuna products sold in or exported from the United States that include on
the label the term “dolphin-safe” or any other term or symbol that claims or suggests the tuna were
harvested in a manner not injurious to dolphins are subject to the requirements of subpart H of this
part (§ 216.90 et seq.).
(6) Scope of embargoes —
(i)

ETP yellowfin tuna embargo. Yellowfin tuna or products of yellowfin tuna harvested using a
purse seine in the ETP identified by an HTS number listed in paragraph (f)(2)(i) of this section
may not be imported into the United States if such tuna or tuna products were:
(A) Harvested on or after March 3, 1999, the effective date of section 4 of the IDCPA, and
harvested by, or exported from, a nation that the Assistant Administrator has determined
has jurisdiction over purse seine vessels of greater than 400 st (362.8 mt) carrying
capacity harvesting tuna in the ETP, unless the Assistant Administrator has made an
affirmative finding required for importation for that nation under paragraph (f)(8) of this
section;
(B) Exported from an intermediary nation, as defined in Section 3 of the MMPA, and a ban is
currently in force prohibiting the importation from that nation under paragraph (f)(9) of
this section; or
(C) Harvested before March 3, 1999, the effective date of Section 4 of the IDCPA, and would
have been banned from importation under Section 101(a)(2) of the MMPA at the time of
harvest.

(ii) Driftnet embargo. A shipment containing fish or fish products identified by an HTS number
listed in paragraph (f)(2) of this section may not be imported into the United States if it is
harvested by a large-scale driftnet, or if it is exported from or harvested on the high seas by any
nation determined by the Assistant Administrator to be engaged in large-scale driftnet fishing,
unless a government official of the large-scale driftnet nation completes, signs and dates the
High Seas Driftnet section of the FCO certifying that the fish or fish products were harvested by
a method other than large-scale driftnet.
(iii) Pelly certification. After 6 months of an embargo being in place against a nation under this
section, the Secretary will certify that nation under section 8(a) of the Fishermen's Protective
Act (22 U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will terminate the
certification under Section 8(d) of that Act (22 U.S.C. 1978(d)).
(iv) Coordination. The Assistant Administrator will promptly advise the Department of State and the
Department of Homeland Security of embargo decisions, actions, and finding determinations.
(7) Large-scale driftnet nation: determination. Based upon the best information available, the Assistant
Administrator will determine which nations have registered vessels that engage in fishing using
large-scale driftnets. Such determinations will be published in the FEDERAL REGISTER. A responsible
government official of any such nation may certify to the Assistant Administrator that none of the
nation's vessels use large-scale driftnets. Upon receipt of the certification, the Assistant
Administrator may find, and publish such finding in the FEDERAL REGISTER, that none of that nation's
vessels engage in fishing with large-scale driftnets.
(8) Affirmative finding procedure for nations harvesting yellowfin tuna using a purse seine in the ETP.

50 CFR 216.24(f)(8) (enhanced display)

page 52 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

(i)

50 CFR 216.24(f)(8)(i)

The Assistant Administrator will determine, on an annual basis, whether to make an affirmative
finding based upon documentary evidence provided by the government of the harvesting nation
or by the IDCP and the IATTC, and will publish the finding in the FEDERAL REGISTER. A finding will
remain valid for 1 year or for such other period as the Assistant Administrator may determine.
An affirmative finding will be terminated if the Assistant Administrator determines that the
requirements of this paragraph are no longer being met. Every 5 years, the government of the
harvesting nation must submit such documentary evidence directly to the Assistant
Administrator and request an affirmative finding. Documentary evidence must be submitted by
the harvesting nation for the first affirmative finding application. The Assistant Administrator
may require the submission of supporting documentation or other verification of statements
made in connection with requests to allow importations. An affirmative finding applies to
yellowfin tuna and yellowfin tuna products that were harvested by vessels of the nation after
March 3, 1999. To make an affirmative finding, the Assistant Administrator must find that:
(A) The harvesting nation participates in the IDCP and is either a member of the IATTC or has
initiated (and within 6 months thereafter completed) all steps required of applicant
nations, in accordance with article V, paragraph 3, of the Convention establishing the
IATTC, to become a member of that organization;
(B) The nation is meeting its obligations under the IDCP and its obligations of membership in
the IATTC, including all financial obligations;
(C)
(1) The annual total dolphin mortality of the nation's purse seine fleet (including certified
charter vessels operating under its jurisdiction) did not exceed the aggregated total
of the mortality limits assigned by the IDCP for that nation's purse seine vessels for
the year preceding the year in which the finding would start; or
(2)
(i)

Because of extraordinary circumstances beyond the control of the nation and
the vessel captains, the total dolphin mortality of the nation's purse seine fleet
(including certified charter vessels operating under its jurisdiction) exceeded
the aggregated total of the mortality limits assigned by the IDCP for that
nation's purse seine vessels; and

(ii) Immediately after the national authorities discovered the aggregate mortality of
its fleet had been exceeded, the nation required all its vessels to cease fishing
for tuna in association with dolphins for the remainder of the calendar year; and
(D)
(1) In any years in which the parties agree to a global allocation system for per-stock peryear individual stock quotas, the nation responded to the notification from the IATTC
that an individual stock quota had been reached by prohibiting any additional sets on
the stock for which the quota had been reached;

50 CFR 216.24(f)(8)(i)(D)(1) (enhanced display)

page 53 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(8)(i)(D)(2)

(2) If a per-stock per-year quota is allocated to each nation, the annual per-stock per-year
dolphin mortality of the nation's purse seine fleet (including certified charter vessels
operating under its jurisdiction) did not exceed the aggregated total of the per-stock
per-year limits assigned by the IDCP for that nation's purse seine vessels (if any) for
the year preceding the year in which the finding would start; or
(3)
(i)

Because of extraordinary circumstances beyond the control of the nation and
the vessel captains, the per-stock per-year dolphin mortality of the nation's
purse seine fleet (including certified charter vessels operating under its
jurisdiction) exceeded the aggregated total of the per-stock per-year limits
assigned by the IDCP for that nation's purse seine vessels; and

(ii) Immediately after the national authorities discovered the aggregate per-stock
mortality limits of its fleet had been exceeded, the nation required all its vessels
to cease fishing for tuna in association with the stocks whose limits had been
exceeded, for the remainder of the calendar year.
(ii) Documentary Evidence and Compliance with the IDCP —
(A) Documentary Evidence. The Assistant Administrator will make an affirmative finding under
paragraph (f)(8)(i) of this section only if the government of the harvesting nation provides
directly to the Assistant Administrator, or authorizes the IATTC to release to the Assistant
Administrator, complete, accurate, and timely information that enables the Assistant
Administrator to determine whether the harvesting nation is meeting the obligations of the
IDCP, and whether ETP-harvested tuna imported from such nation comports with the
tracking and verification regulations of subpart H of this part.
(B) Revocation. After considering the information provided under paragraph (f)(8)(ii)(A) of this
section, each party's financial obligations to the IATTC, and any other relevant information,
including information that a nation is consistently failing to take enforcement actions on
violations that diminish the effectiveness of the IDCP, the Assistant Administrator, in
consultation with the Secretary of State, will revoke an affirmative finding issued to a
nation that is not meeting the obligations of the IDCP.
(iii) A harvesting nation may apply for an affirmative finding at any time by providing to the
Assistant Administrator the information and authorizations required in paragraphs (f)(8)(i) and
(f)(8)(ii) of this section, allowing at least 60 days from the submission of complete information
to NMFS for processing.
(iv) The Assistant Administrator will make or renew an affirmative finding for the period from April 1
through March 31 of the following year, or portion thereof, if the harvesting nation has provided
all the information and authorizations required by paragraphs (f)(8)(i) and (f)(8)(ii) of this
section, and has met the requirements of paragraphs (f)(8)(i) and (f)(8)(ii) of this section.
(v) Reconsideration of finding. The Assistant Administrator may reconsider a finding upon a
request from, and the submission of additional information by, the harvesting nation, if the
information indicates that the nation has met the requirements under paragraphs (f)(8)(i) and
(f)(8)(ii) of this section.

50 CFR 216.24(f)(8)(v) (enhanced display)

page 54 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(9)

(9) Intermediary nation. Except as authorized under this paragraph, no yellowfin tuna or yellowfin tuna
products harvested by purse seine in the ETP classified under one of the HTS numbers listed in
paragraph (f)(2)(i) of this section may be imported into the United States from any intermediary
nation.
(i)

An “intermediary nation” is a nation that exports yellowfin tuna or yellowfin tuna products to the
United States and that imports yellowfin tuna or yellowfin tuna products that are subject to a
direct ban on importation into the United States pursuant to Section 101(a)(2)(B) of the MMPA.

(ii) Shipments of yellowfin tuna that pass through any nation (e.g. on a 'through Bill of Lading') and
are not entered for consumption in that nation are not considered to be imports to that nation
and thus, would not cause that nation to be considered an intermediary nation under the
MMPA.
(iii) The Assistant Administrator will publish in the FEDERAL REGISTER a notice announcing when
NMFS has determined, based on the best information available, that a nation is an
“intermediary nation.” After the effective date of that notice, the import restrictions of this
paragraph shall apply.
(iv) Changing the status of intermediary nation determinations. Imports from an intermediary nation
of yellowfin tuna and yellowfin tuna products classified under any of the HTS numbers in
paragraph (f)(2)(i) of this section may be imported into the United States only if the Assistant
Administrator determines, and publishes a notice of such determination in the FEDERAL REGISTER,
that the intermediary nation has provided certification and reasonable proof that it has not
imported in the preceding 6 months yellowfin tuna or yellowfin tuna products that are subject to
a ban on direct importation into the United States under Section 101(a)(2)(B) of the MMPA. At
that time, the nation shall no longer be considered an “intermediary nation” and these import
restrictions shall no longer apply.
(v) The Assistant Administrator will review decisions under this paragraph upon the request of an
intermediary nation. Such requests must be accompanied by specific and detailed supporting
information or documentation indicating that a review or reconsideration is warranted. For
purposes of this paragraph, the term “certification and reasonable proof” means the
submission to the Assistant Administrator by a responsible government official from the nation
of a document reflecting the nation's customs records for the preceding 6 months, together
with a certification attesting that the document is accurate.
(10) Fish refused entry. If fish is denied entry under paragraph (f)(2) of this section, the Port Director of
CBP shall refuse to release the fish for entry into the United States.
(11) Disposition of fish refused entry into the United States. Fish that is denied entry under paragraph
(f)(2) of this section and that is not exported under CBP supervision within 90 days shall be disposed
of under CBP laws and regulations at the importer's expense. Provided, however, that any disposition
shall not result in an introduction into the United States of fish caught in violation of the MMPA.
(12) Market Prohibitions.
(i)

It is unlawful for any person to sell, purchase, offer for sale, transport, or ship in the United
States, any tuna or tuna products unless the tuna products are either:
(A) Dolphin-safe under subpart H of this part; or

50 CFR 216.24(f)(12)(i)(A) (enhanced display)

page 55 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(f)(12)(i)(B)

(B) Harvested in compliance with the IDCP by vessels under the jurisdiction of a nation that is
a member of the IATTC or has initiated, and within 6 months thereafter completes, all
steps required by an applicant nation to become a member of the IATTC.
(ii) It is unlawful for any exporter, transshipper, importer, processor, or wholesaler/distributor to
possess, sell, purchase, offer for sale, transport, or ship in the United States, any tuna or tuna
products bearing a label or mark that refers to dolphins, porpoises, or marine mammals unless
the label or mark complies with the requirements of 16 U.S.C. 1385(d).
(g) Penalties. Any person or vessel subject to the jurisdiction of the United States will be subject to the
penalties provided for under the MMPA for the conduct of fishing operations in violation of these
regulations. Penalties for violating these regulations may include, but are not limited to, civil monetary
fines, permit suspension or revocation, and reductions in current and future DMLs. Recommended
sanctions are identified in the IDCPA/DPCIA Tuna/Dolphin Civil Administrative Penalty Schedule.
Procedures for the imposition of penalties under the MMPA are found at 15 CFR part 904.
(h) Taking and related acts of marine mammals in foreign commercial fishing operations not governed by the
provisions related to tuna purse seine vessels in the eastern tropical Pacific Ocean —
(1) Prohibitions.
(i)

As provided in section 101(a)(2) and 102(c)(3)of the MMPA, the importation of commercial fish
or fish products which have been caught with commercial fishing technology which results in
the incidental kill or incidental serious injury of ocean mammals in excess of U.S. standards or
caught in a manner which the Secretary has proscribed for persons subject to the jurisdiction of
the United States are prohibited. For purposes of paragraph (h) of this section, a fish or fish
product caught with commercial fishing technology which results in the incidental mortality or
incidental serious injury of marine mammals in excess of U.S. standards is any fish or fish
product harvested in an exempt or export fishery for which a valid comparability finding is not in
effect.

(ii) Accordingly, it is unlawful for any person to import, or attempt to import, into the United States
for commercial purposes any fish or fish product if such fish or fish product:
(A) Was caught or harvested in a fishery that does not have a valid comparability finding in
effect at the time of import; or
(B) Is not accompanied by a Certification of Admissibility where such Certification is required
pursuant to paragraph (h)(9)(iv) of this section or by such other documentation as the
Assistant Administrator may identify and announce in the FEDERAL REGISTER that indicates
the fish or fish product was not caught or harvested in a fishery subject to an import
prohibition under paragraphs (h)(1) and (h)(9)(i) of this section.
(iii) It is unlawful for any person, including exporters, transshippers, importers, processors, or
wholesalers/distributors to possess, sell, purchase, offer for sale, re-export, transport, or ship in
interstate or foreign commerce in the United States, any fish or fish product imported in
violation of paragraph (h) of this section.
(2) Exemptions.
(i)

Exempt fisheries are exempt from requirements of paragraphs (h)(6)(iii)(B) through (E) of this
section.

50 CFR 216.24(h)(2)(i) (enhanced display)

page 56 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(2)(i)(A)

(A) For the purposes of paragraph (h) of this section, harvesting nation means the country
under whose flag or jurisdiction one or more fishing vessels or other entity engaged in
commercial fishing operations are documented, or which has by formal declaration or
agreement asserted jurisdiction over one or more authorized or certified charter vessels,
and from such vessel(s) or entity(ies) fish are caught or harvested that are a part of any
cargo or shipment of fish or fish products to be imported into the United States, regardless
of any intervening transshipments, exports or re-exports.
(B) [Reserved]
(ii) The prohibitions of paragraph (h)(1) of this section shall not apply during the exemption period.
(iii) Paragraph (h) of this section shall not apply to a commercial fishing operation subject to
section 101(a)(2)(B) of the MMPA and its implementing regulations set out in the relevant
provisions of paragraph (f) of this section which govern the incidental take of delphinids in
course of commercial purse seine fishing operations for yellowfin tuna in the eastern tropical
Pacific Ocean and restrictions on importation and sale of fish and fish products caught or
harvested in that commercial fishing operation. Paragraph (h) of this section shall not apply
with respect to large-scale driftnet fishing, which is governed by paragraph (f)(7) of this section
and the restrictions it sets out on importation and sale of fish and fish products harvested by
using a large-scale driftnet.
(3) Procedures to identify foreign commercial fishing operations with incidental mortality and serious
injury of marine mammals as exempt or export fisheries. In developing the List of Foreign Fisheries in
paragraph (h)(4) of this section, the Assistant Administrator:
(i)

Shall periodically analyze imports of fish and fish products and identify commercial fishing
operations that are the source of exports of such fish and fish products to the United States
that have or may have incidental mortality or serious injury of marine mammals in the course of
their commercial fishing operations.
(A) For the purposes of paragraph (h) of this section, a commercial fishing operation means
vessels or entities that catch, take, or harvest fish (as defined in section 3 of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)) from the
marine environment (or other areas where marine mammals occur) that results in the sale
or barter of all or part of the fish caught, taken or harvested. The term includes
aquaculture activities that interact with or occur in marine mammal habitat.
(B) [Reserved]

(ii) Shall notify, in consultation with the Secretary of State, each harvesting nation that has
commercial fishing operations identified pursuant to paragraph (h)(3)(i) of this section and
request that within 90 days of notification the harvesting nation submit reliable information
about the commercial fishing operations identified, including as relevant the number of
participants, number of vessels, gear type, target species, area of operation, fishing season, any
information regarding the frequency of marine mammal incidental mortality and serious injury
and any programs (including any relevant laws, decrees, regulations or measures) to assess
marine mammal populations and to reduce incidental mortality and serious injury of marine
mammals in those fisheries or prohibit the intentional killing or injury of marine mammals.

50 CFR 216.24(h)(3)(ii) (enhanced display)

page 57 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(3)(iii)

(iii) Shall review each harvesting nation's submission, evaluate any information it contains
(including descriptions of its regulatory programs) and, if necessary, request additional
information.
(iv) May consider other readily available and relevant information about such commercial fishing
operations and the frequency of incidental mortality and serious injury of marine mammals,
including: fishing vessel records; reports of on-board fishery observers; information from offloading facilities, port-side officials, enforcement agents and officers, transshipment vessel
workers and fish importers; government vessel registries; regional fisheries management
organizations documents and statistical document programs; and appropriate certification
programs. Other sources may include published literature and reports on fishing vessels with
incidental mortality and serious injury of marine mammals from government agencies; foreign,
state, and local governments; regional fishery management organizations; nongovernmental
organizations; industry organizations; academic institutions; and citizens and citizen groups.
(4) List of Foreign Fisheries.
(i)

Within one year of January 1, 2017, and the year prior to the expiration of the exemption period
and every four years thereafter, the Assistant Administrator, based on the information obtained
in paragraph (h)(3) of this section, will publish in the FEDERAL REGISTER:
(A) A proposed List of Foreign Fisheries by harvesting nation for notice and comment; and
(B) A final List of Foreign Fisheries, effective upon publication in the FEDERAL REGISTER.

(ii) To the extent that information is available, the List of Foreign Fisheries shall:
(A) Classify each commercial fishing operation that is the source of exports of fish and fish
products to the United States based on the definitions for export fishery and exempt
fishery set forth in § 216.3 and identified in the List of Foreign Fisheries by harvesting
nation and other defining factors including geographic location of harvest, gear-type,
target species or a combination thereof;
(B) Include fishing gear type, target species, and number of vessels or other entities engaged
in each commercial fishing operation;
(C) List the marine mammals that interact with each commercial fishing operation and
indicate the level of incidental mortality and serious injury of marine mammals in each
commercial fishing operation;
(D) Provide a description of the harvesting nation's programs to assess marine mammal
stocks and estimate and reduce marine mammal incidental mortality and serious injury in
its export fisheries; and
(E) List the harvesting nations that prohibit, in the course of commercial fishing operations
that are the source of exports to the United States, the intentional mortality or serious
injury of marine mammals unless the intentional mortality or serious injury of a marine
mammal is imminently necessary in self-defense or to save the life of a person in
immediate danger.
(5) Consultations with Harvesting Nations with Commercial Fishing Operations on the List of Foreign
Fisheries.

50 CFR 216.24(h)(5) (enhanced display)

page 58 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

(i)

50 CFR 216.24(h)(5)(i)

Within 90 days of publication of the final List of Foreign Fisheries in the FEDERAL REGISTER, the
Assistant Administrator, in consultation with the Secretary of State, shall consult with
harvesting nations with commercial fishing operations identified as export or exempt fisheries
as defined in § 216.3 for purposes of notifying the harvesting nation of the requirements of the
Marine Mammal Protection Act and this subpart.

(ii) The Assistant Administrator, in consultation with the Secretary of State, may consult with
harvesting nations for the purposes of providing notifications of deadlines under this section,
ascertaining or reviewing the progress of the harvesting nation's development, adoption,
implementation, or enforcement of its regulatory program governing the incidental mortality
and serious injury of marine mammals in the course of commercial fishing operations for an
export fishery, supplementing or clarifying information needed in conjunction with the List of
Foreign Fisheries in paragraphs (h)(3) and (4) of this section, the progress report in paragraph
(h)(10) of this section or an application for or reconsideration of a comparability finding in
paragraphs (h)(6) and (8) of this section.
(iii) The Assistant Administrator shall, in consultation with the Secretary of State and the United
States Trade Representative, consult with any harvesting nations that failed to receive a
comparability finding for one or more of commercial fishing operations or for which a
comparability finding is terminated and encourage the harvesting nation to take corrective
action and reapply for a comparability finding in accordance with paragraph (h)(9)(iii) of this
section.
(6) Procedure and conditions for a comparability finding —
(i)

Procedures to apply for a comparability finding. On November 30 of the year prior to when the
exemption period or comparability finding is to expire, a harvesting nation, shall submit to the
Assistant Administrator an application for each of its export and exempt fisheries, along with
documentary evidence demonstrating that the harvesting nation has met the conditions
specified in paragraph (h)(6)(iii) of this section for each of such fisheries, including reasonable
proof as to the effects on marine mammals of the commercial fishing technology in use in the
fishery for fish or fish products exported from such nation to the United States. The Assistant
Administrator may require the submission of additional supporting documentation or other
verification of statements made in an application for a comparability finding.

(ii) Procedures to issue a comparability finding. No later than November 30th of the year when the
exemption period or comparability finding is to expire, the Assistant Administrator, in response
to an application from a harvesting nation for an export or exempt fishery, shall determine
whether to issue to the harvesting nation, in accordance with the procedures set forth in
paragraph (h)(8) of this section, a comparability finding for the fishery. In making this
determination, the Assistant Administrator shall consider documentary evidence provided by
the harvesting nation and relevant information readily available from other sources. If a
harvesting nation provides insufficient documentary evidence in support of its application, the
Assistant Administrator shall draw reasonable conclusions regarding the fishery based on
readily available and relevant information from other sources, including where appropriate
information concerning analogous fisheries that use the same or similar gear-type under
similar conditions as the fishery, in determining whether to issue the harvesting nation a
comparability finding for the fishery.

50 CFR 216.24(h)(6)(ii) (enhanced display)

page 59 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(6)(iii)

(iii) Conditions for a comparability finding. The following are conditions for the Assistant
Administrator to issue a comparability finding for the fishery, subject to the additional
considerations set out in paragraph (h)(7) of this section:
(A) For an exempt or export fishery, the harvesting nation:
(1) Prohibits the intentional mortality or serious injury of marine mammals in the course
of commercial fishing operations in the fishery unless the intentional mortality or
serious injury of a marine mammal is imminently necessary in self-defense or to save
the life of a person in immediate danger; or
(2) Demonstrates that it has procedures to reliably certify that exports of fish and fish
products to the United States are not the product of an intentional killing or serious
injury of a marine mammal unless the intentional mortality or serious injury of a
marine mammal is imminently necessary in self-defense or to save the life of a
person in immediate danger; and
(B) For an export fishery, the harvesting nation maintains a regulatory program with respect to
the fishery that is comparable in effectiveness to the U.S. regulatory program with respect
to incidental mortality and serious injury of marine mammals in the course of commercial
fishing operations, in particular by maintaining a regulatory program that includes, or
effectively achieves comparable results as, the conditions in paragraph (h)(6)(iii)(C), (D), or
(E) of this section as applicable (including for transboundary stocks).
(C) Conditions for an export fishery operating under the jurisdiction of a harvesting nation
within its EEZ (or the equivalent) or territorial sea. In making the finding in paragraph
(h)(6)(ii) of this section, with respect to an export fishery operating under the jurisdiction
of a harvesting nation within its EEZ (or the equivalent) or territorial sea, the Assistant
Administrator shall determine whether the harvesting nation maintains a regulatory
program that provides for, or effectively achieves comparable results as, the following:
(1) Marine mammal assessments that estimate population abundance for marine
mammal stocks in waters under the harvesting nation's jurisdiction that are
incidentally killed or seriously injured in the export fishery.
(2) An export fishery register containing a list of all fishing vessels participating in the
export fishery, including information on the number of vessels participating, the time
or season and area of operation, gear type and target species.
(3) Regulatory requirements that include:
(i)

A requirement for the owner or operator of a vessel participating in the export
fishery to report all intentional and incidental mortality and injury of marine
mammals in the course of commercial fishing operations; and

(ii) A requirement to implement measures in the export fishery designed to reduce
the total incidental mortality and serious injury of a marine mammal stock
below the bycatch limit; and

50 CFR 216.24(h)(6)(iii)(C)(3)(ii) (enhanced display)

page 60 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(6)(iii)(C)(3)(iii)

(iii) with respect to any transboundary stock or any other marine mammal stocks
interacting with the export fishery, measures to reduce the incidental mortality
and serious injury of that stock that the United States requires its domestic
fisheries to take with respect to that transboundary stock or marine mammal
stock.
(4) Implementation of monitoring procedures in the export fishery designed to estimate
incidental mortality or serious injury in the export fishery, and to estimate the
cumulative incidental mortality and serious injury of marine mammal stocks in
waters under its jurisdiction resulting from the export fishery and other export
fisheries interacting with the same marine mammal stocks, including an indication of
the statistical reliability of those estimates.
(5) Calculation of bycatch limits for marine mammal stocks in waters under its
jurisdiction that are incidentally killed or seriously injured in the export fishery.
(6) Comparison of the incidental mortality and serious injury of each marine mammal
stock or stocks that interact with the export fishery in relation to the bycatch limit for
each stock; and comparison of the cumulative incidental mortality and serious injury
of each marine mammal stock or stocks that interact with the export fishery and any
other export fisheries of the harvesting nation showing that these export fisheries:
(i)

Do not exceed the bycatch limit for that stock or stocks; or

(ii) Exceed the bycatch limit for that stock or stocks, but the portion of incidental
marine mammal mortality or serious injury for which the export fishery is
responsible is at a level that, if the other export fisheries interacting with the
same marine mammal stock or stocks were at the same level, would not result
in cumulative incidental mortality and serious injury in excess of the bycatch
limit for that stock or stocks.
(D) Conditions for a harvesting nation's export fishery operating within the jurisdiction of
another state. In making the finding in paragraph (h)(6)(ii) of this section, with respect to a
harvesting nation's export fishery operating within the jurisdiction of another state, the
Assistant Administrator shall determine whether the harvesting nation maintains a
regulatory program that provides for, or effectively achieves comparable results as, the
following:
(1) Implementation in the export fishery of:
(i)

With respect to any transboundary stock interacting with the export fishery, any
measures to reduce the incidental mortality and serious injury of that stock that
the United States requires its domestic fisheries to take with respect that
transboundary stock; and

(ii) With respect to any other marine mammal stocks interacting with the export
fishery while operating within the jurisdiction of the state, any measures to
reduce incidental mortality and serious injury that the United States requires its
domestic fisheries to take with respect to that marine mammal stock; and
(2) For an export fishery not subject to management by a regional fishery management
organization:
50 CFR 216.24(h)(6)(iii)(D)(2) (enhanced display)

page 61 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

(i)

50 CFR 216.24(h)(6)(iii)(D)(2)(i)

An assessment of marine mammal abundance of stocks interacting with the
export fishery, the calculation of a bycatch limit for each such stock, an
estimation of incidental mortality and serious injury for each stock and
reduction in or maintenance of the incidental mortality and serious injury of
each stock below the bycatch limit. This data included in the application may be
provided by the state or another source; and

(ii) Comparison of the incidental mortality and serious injury of each marine
mammal stock or stocks that interact with the export fishery in relation to the
bycatch limit for each stock; and comparison of the cumulative incidental
mortality and serious injury of each marine mammal stock or stocks that
interact with the export fishery and any other export fisheries of the harvesting
nation showing that these export fisheries do not exceed the bycatch limit for
that stock or stocks; or exceed the bycatch limit for that stock or stocks, but the
portion of incidental marine mammal mortality or serious injury for which the
export fishery is responsible is at a level that, if the other export fisheries
interacting with the same marine mammal stock or stocks were at the same
level, would not result in cumulative incidental mortality and serious injury in
excess of the bycatch limit for that stock or stocks; or
(3) For an export fishery that is subject to management by a regional fishery
management organization, implementation of marine mammal data collection and
conservation and management measures applicable to that fishery required under
any applicable intergovernmental agreement or regional fisheries management
organization to which the United States is a party.
(E) Conditions for a harvesting nation's export fishery operating on the high seas under the
jurisdiction of the harvesting nation or another state. In making the finding in paragraph
(h)(6)(ii) of this section, with respect to a harvesting nation's export fishery operating on
the high seas under the jurisdiction of the harvesting nation or another state, the Assistant
Administrator shall determine whether the harvesting nation maintains a regulatory
program that provides for, or effectively achieves comparable results as, the U.S.
regulatory program with respect to the following:
(1) Implementation in the fishery of marine mammal data collection and conservation
and management measures applicable to that fishery required under any applicable
intergovernmental agreement or regional fisheries management organization to
which the United States is a party; and
(2) Implementation in the export fishery of:
(i)

With respect to any transboundary stock interacting with the export fishery, any
measures to reduce the incidental mortality and serious injury of that stock that
the United States requires its domestic fisheries to take with respect that
transboundary stock; and

(ii) With respect to any other marine mammal stocks interacting with the export
fishery while operating on the high seas, any measures to reduce incidental
mortality and serious injury that the United States requires its domestic
fisheries to take with respect to that marine mammal stock when they are
operating on the high seas.
50 CFR 216.24(h)(6)(iii)(E)(2)(ii) (enhanced display)

page 62 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(7)

(7) Additional considerations for comparability finding determinations. When determining whether to
issue any comparability finding for a harvesting nation's export fishery the Assistant Administrator
shall also consider:
(i)

U.S. implementation of its regulatory program for similar marine mammal stocks and similar
fisheries (e.g., considering gear or target species), including transboundary stocks governed by
regulations implementing a take reduction plan (§ 229.2 of this chapter), and any other relevant
information received during consultations;

(ii) The extent to which the harvesting nation has successfully implemented measures in the
export fishery to reduce the incidental mortality and serious injury of marine mammals caused
by the harvesting nation's export fisheries to levels below the bycatch limit;
(iii) Whether the measures adopted by the harvesting nation for its export fishery have reduced or
will likely reduce the cumulative incidental mortality and serious injury of each marine mammal
stock below the bycatch limit, and the progress of the regulatory program toward achieving its
objectives;
(iv) Other relevant facts and circumstances, which may include the history and nature of
interactions with marine mammals in this export fishery, whether the level of incidental
mortality and serious injury resulting from the fishery or fisheries exceeds the bycatch limit for
a marine mammal stock, the population size and trend of the marine mammal stock, and the
population level impacts of the incidental mortality or serious injury of marine mammals in a
harvesting nation's export fisheries and the conservation status of those marine mammal
stocks where available;
(v) The record of consultations under paragraph (h)(5) of this section with the harvesting nation,
results of these consultations, and actions taken by the harvesting nation and under any
applicable intergovernmental agreement or regional fishery management organization to
reduce the incidental mortality and serious injury of marine mammals in its export fisheries;
(vi) Information gathered during onsite inspection by U.S. government officials of a fishery's
operations;
(vii) For export fisheries operating on the high seas under an applicable intergovernmental
agreement or regional fishery management organization to which the United States is a party,
the harvesting nation's record of implementation of or compliance with measures adopted by
that regional fishery management organization or intergovernmental agreement for data
collection, incidental mortality and serious injury mitigation or the conservation and
management of marine mammals; whether the harvesting nation is a party or cooperating nonparty to such intergovernmental agreement or regional fishery management organization; the
record of United States implementation of such measures; and whether the United States has
imposed additional measures on its fleet not required by an intergovernmental agreement or
regional fishery management organization; or
(viii) For export fisheries operating on the high seas under an applicable intergovernmental
agreement or regional fisheries management organization to which the United States is not a
party, the harvesting nation's implementation of and compliance with measures, adopted by
that regional fisheries management organization or intergovernmental agreement, and any
additional measures implemented by the harvesting nation for data collection, incidental

50 CFR 216.24(h)(7)(viii) (enhanced display)

page 63 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(8)

mortality and serious injury mitigation or the conservation and management of marine
mammals and the extent to which such measures are comparable in effectiveness to the U.S.
regulatory program for similar fisheries.
(8) Comparability finding determinations —
(i)

Publication. No later than November 30th of the year when the exemption period or
comparability finding is to expire, the Assistant Administrator shall publish in the FEDERAL
REGISTER, by harvesting nation, a notice of the harvesting nations and fisheries for which it has
issued or denied a comparability finding and the specific fish and fish products that as a result
are subject to import prohibitions under paragraphs (h)(1) and (9) of this section.

(ii) Notification. Prior to publication in the FEDERAL REGISTER, the Assistant Administrator, in
consultation with the Secretary of State and, in the event of a denial of a comparability finding,
with the Office of the U.S. Trade Representative, shall notify each harvesting nation in writing of
the fisheries of the harvesting nation for which the Assistant Administrator is:
(A) Issuing a comparability finding;
(B) Denying a comparability finding with an explanation for the reasons for the denial of such
comparability finding; and
(C) Specify the fish and fish products that will be subject to import prohibitions under
paragraphs (h)(1) and (9) of this section on account of a denial of a comparability finding
and the effective date of such import prohibitions.
(iii) Preliminary comparability finding consultations.
(A) Prior to denying a comparability finding under paragraph (h)(8)(ii) of this section or
terminating a comparability finding under paragraph (h)(8)(vii) of this section, the
Assistant Administrator shall:
(1) Notify the harvesting nation that it is preliminarily denying or terminating its
comparability finding and explain the reasons for that preliminary denial or
termination;
(2) Provide the harvesting nation a reasonable opportunity to submit reliable information
to refute the preliminary denial or termination of the comparability finding and
communicate any corrective actions it is taking to meet the applicable conditions for
a comparability finding set out in paragraph (h)(6)(iii) of this section subject to the
additional considerations set out in paragraph (h)(7) of this section.
(B) The Assistant Administrator shall take into account any information it receives from the
harvesting nation and issue a final comparability finding determination, notifying the
harvesting nation pursuant to paragraph (h)(8)(ii) of this section of its determination and,
if a denial or termination, an explanation of the reasons for the denial or termination of the
comparability finding.
(C) A preliminary denial or termination of a comparability finding shall not result in import
prohibitions pursuant to paragraphs (h)(1) and (9) of this section.

50 CFR 216.24(h)(8)(iii)(C) (enhanced display)

page 64 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(8)(iv)

(iv) Duration of a comparability finding. Unless terminated in accordance with paragraph (h)(8)(vii)
of this section or issued for a specific period pursuant to a re-application under paragraph
(h)(9)(iii) of this section, a comparability finding shall remain valid for 4 years from publication
or for such other period as the Assistant Administrator may specify.
(v) Renewal of comparability finding. To seek renewal of a comparability finding, every 4 years or
prior to the expiration of a comparability finding, the harvesting nation must submit to the
Assistant Administrator the application and the documentary evidence required pursuant to
paragraph (h)(6)(i) of this section, including, where applicable, reasonable proof as to the
effects on marine mammals of the commercial fishing technology in use in the fishery for fish
or fish products exported to the United States, by November 30 of the year prior to the
expiration date of its current comparability finding.
(vi) Procedures for a comparability finding for new foreign commercial fishing operations wishing to
export to the United States.
(A) For foreign commercial fishing operations not on the List of Foreign Fisheries that are the
source of new exports to the United States, the harvesting nation must notify the
Assistant Administrator that the commercial fishing operation wishes to export fish and
fish products to the United States.
(B) Upon notification the Assistant Administrator shall issue a provisional comparability
finding allowing such imports for a period not to exceed 12 months.
(C) At least 120 days prior to the expiration of the provisional comparability finding the
harvesting nation must submit to the Assistant Administrator the reliable information
specified in paragraph (h)(3)(ii) of this section and the application and the applicable
documentary evidence required pursuant to paragraph (h)(6)(i) of this section.
(D) Prior to expiration of the provisional comparability finding, the Assistant Administrator
shall review the application and information provided and classify the commercial fishing
operation as either an exempt or export fishery in accordance with paragraphs (h)(3)(iii)
through (iv) and (h)(4)(ii) of this section and determine whether to issue the harvesting
nation a comparability finding for the fishery in accordance with paragraph (h)(6)(ii)
through (iii) of this section.
(E) If the harvesting nation submits the reliable information specified in paragraph (h)(3)(ii) of
this section at least 180 days prior to expiration of the provisional comparability finding,
the Assistant Administrator will review that information and classify the fishery as either
an exempt or export fishery.
(vii) Discretionary review of comparability findings.
(A) The Assistant Administrator may reconsider a comparability finding that it has issued at
any time based upon information obtained by the Assistant Administrator including any
progress report received from a harvesting nation; or upon request with the submission of
information from the harvesting nation, any nation, regional fishery management
organizations, nongovernmental organizations, industry organizations, academic
institutions, citizens or citizen groups that the harvesting nation's exempt or export fishery
no longer meets the applicable conditions in paragraph (h)(6)(iii) of this section. Upon
receiving a request, the Assistant Administrator has the discretion to determine whether to
proceed with a review or reconsideration.
50 CFR 216.24(h)(8)(vii)(A) (enhanced display)

page 65 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(8)(vii)(B)

(B) After such review or reconsideration and consultation with the harvesting nation, the
Assistant Administrator shall, if the Assistant Administrator determines that the basis for
the comparability finding no longer applies, terminate a comparability finding.
(C) The Assistant Administrator shall notify in writing the harvesting nation and publish in the
FEDERAL REGISTER a notice of the termination and the specific fish and fish products that as
a result are subject to import prohibitions under paragraphs (h)(1) and (9) of this section.
(9) Imposition of import prohibitions.
(i)

With respect to a harvesting nation for which the Assistant Administrator has denied or
terminated a comparability finding for a fishery, the Assistant Administrator, in cooperation with
the Secretaries of the Treasury and Homeland Security, shall identify and prohibit the
importation of fish and fish products into the United States from the harvesting nation caught
or harvested in that fishery. Any such import prohibition shall become effective 30 days after
the of publication of the FEDERAL REGISTER notice referenced in paragraph (h)(8)(i) of this section
and shall only apply to fish and fish products caught or harvested in that fishery.

(ii) Duration of import restrictions and removal of import restrictions.
(A) Any import prohibition imposed pursuant to paragraphs (h)(1) and (9) of this section with
respect to a fishery shall remain in effect until the Assistant Administrator issues a
comparability finding for the fishery.
(B) A harvesting nation with an export fishery with a comparability finding that expired, was
denied or terminated may re-apply for a comparability finding at any time by submitting an
application to the Assistant Administrator, along with documentary evidence
demonstrating that the harvesting nation has met the conditions specified in paragraph
(h)(6)(iii) of this section, including, as applicable, reasonable proof as to the effects on
marine mammals of the commercial fishing technology in use in the fishery for the fish or
fish products exported from such nation to the United States.
(C) The Assistant Administrator shall make a determination whether to issue the harvesting
nation that has re-applied for a comparability finding for the fishery within 90 days from
the submission of complete information to the Assistant Administrator. The Assistant
Administrator shall issue a comparability finding for the fishery for a specified period
where the Assistant Administrator finds that the harvesting nation meets the applicable
conditions in paragraph (h)(6)(iii) of this section, subject to the additional consideration
for a comparability finding in paragraph (h)(7) of this section.
(D) Upon issuance of a comparability finding to the harvesting nation with respect to the
fishery and notification in writing to the harvesting nation, the Assistant Administrator, in
cooperation with the Secretaries of Treasury and Homeland Security, shall publish in the
FEDERAL REGISTER a notice of the comparability finding and the removal of the
corresponding import prohibition effective on the date of publication in the FEDERAL
REGISTER.
(iii) Certification of admissibility.
(A) If fish or fish products are subject to an import prohibition under paragraphs (h)(1) and (9)
of this section, the Assistant Administrator, to avoid circumvention of the import
prohibition, may require that the same or similar fish and fish products caught or
50 CFR 216.24(h)(9)(iii)(A) (enhanced display)

page 66 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(9)(iii)(B)

harvested in another fishery of the harvesting nation and not subject to the prohibition be
accompanied by a certification of admissibility by paper or electronic equivalent filed
through the National Marine Fisheries Service message set required in the International
Trade Data System. No certification of admissibility shall be required for a fish product for
which it is infeasible to substantiate the attestation that the fish or fish products do not
contain fish or fish products caught or harvested in a fishery subject to an import
prohibition. The certification of admissibility may be in addition to any other applicable
import documentation requirements.
(B) The Assistant Administrator shall notify the harvesting nation of the fisheries and the fish
and fish products to be accompanied by a certification of admissibility and provide the
necessary documents and instruction.
(C) The Assistant Administrator, in cooperation with the Secretaries of Treasury and
Homeland Security, shall as part of the FEDERAL REGISTER notice referenced in paragraph
(h)(8)(i) of this section, publish a list of fish and fish products, organized by harvesting
nation, required to be accompanied by a certification of admissibility. Any requirement for
a certification of admissibility shall be effective 30 days after the publication of such
notice in the FEDERAL REGISTER.
(D) For each shipment, the certification of admissibility must be properly completed and
signed by a duly authorized official or agent of the harvesting nation and subject to
validation by a responsible official(s) designated by the Assistant Administrator. The
certification must also be signed by the importer of record and submitted in a format
(electronic facsimile [fax], the Internet, etc.) specified by the Assistant Administrator.
(iv) Intermediary nation.
(A) For purposes of this paragraph (h)(9), and in applying the definition of an “intermediary
nation,” an import into the intermediary nation occurs when the fish or fish product is
released from a harvesting nation's customs jurisdiction and enters the customs
jurisdiction of the intermediary nation or when the fish and fish products are entered into a
foreign trade zone of the intermediary nation for processing or transshipment. For other
purposes, “import” is defined in § 216.3.
(B) No fish or fish products caught or harvested in a fishery subject to an import prohibition
under paragraphs (h)(1) and (9) of this section, may be imported into the United States
from any intermediary nation.
(C) Within 30 days of publication of the FEDERAL REGISTER notice described in paragraph
(h)(8)(i) of this section specifying fish and fish products subject to import prohibitions
under paragraphs (h)(1) and (9) of this section, the Assistant Administrator shall, based on
readily available information, identify intermediary nations that may import, and re-export
to the United States, fish and fish products from a fishery subject to an import prohibition
under paragraphs (h)(1) and (h)(9)(i) of this section and notify such nations in writing that
they are subject to action under paragraph (h)(9)(iv)(D) of this section with respect to the
fish and fish products for which the Assistant Administer identified them.
(D) Within 60 days from the date of notification, an intermediary nation notified pursuant to
paragraph (h)(9)(iv)(C) of this section must certify to the Assistant Administrator that it:

50 CFR 216.24(h)(9)(iv)(D) (enhanced display)

page 67 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(9)(iv)(D)(1)

(1) Does not import, or does not offer for import into the United States, fish or fish
products subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this
section; or
(2) Has procedures to reliably certify that exports of fish and fish products from the
intermediary nation to the United States do not contain fish or fish products caught
or harvested in a fishery subject to an import prohibition under paragraphs (h)(1) and
(h)(9)(i) of this section.
(E) The intermediary nation must provide documentary evidence to support its certification
including information demonstrating that:
(1) It has not imported in the preceding 6 months the fish and fish products for which it
was notified under paragraph (h)(9)(iv)(C) of this section; or
(2) It maintains a tracking, verification, or other scheme to reliably certify on either a
global, individual shipment or other appropriate basis that fish and fish products from
the intermediary nation offered for import to the United States do not contain fish or
fish products caught or harvested in a fishery subject to an import prohibition under
paragraphs (h)(1) and (h)(9)(i) of this section and for which it was notified under
paragraph (h)(9)(iv)(C) of this section.
(F) No later than 120 days after a notification pursuant to paragraph (h)(9)(iv)(C) of this
section, the Assistant Administrator will review the documentary evidence provided by the
intermediary nation under paragraphs (h)(9)(iv)(D) and (E) of this section and determine
based on that information or other readily available information whether the intermediary
nation imports, or offers to import into the United States, fish and fish products subject
import prohibitions and, if so, whether the intermediary nation has procedures to reliably
certify that exports of fish and fish products from the intermediary nation to the United
States do not contain fish or fish products subject to import prohibitions under paragraphs
(h)(1) and (9) of this section, and notify the intermediary nation of its determination.
(G) If the Assistant Administrator determines that the intermediary nation does not have
procedures to reliably certify that exports of fish and fish products from the intermediary
nation to the United States do not contain fish or fish products caught or harvested in a
fishery subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this
section, the Assistant Administrator, in cooperation with the Secretaries of the Treasury
and Homeland Security, will file with the Office of the Federal Register a notice announcing
the fish and fish products exported from the intermediary nation to the United States that
are of the same species as, or similar to, fish or fish products subject to an import
prohibition under paragraphs (h)(1) and (h)(9)(i) of this section that may not be imported
into the United States as a result of the determination. A prohibition under this paragraph
shall not apply to any fish or fish product for which the intermediary nation was not
identified under paragraph (h)(9)(iv)(C) of this section.
(H) The Assistant Administrator will review determinations under this paragraph upon the
request of an intermediary nation. Such requests must be accompanied by specific and
detailed supporting information or documentation indicating that a review or
reconsideration is warranted. Based upon such information and other relevant
information, the Assistant Administrator may determine that the intermediary nation
should no longer be subject to an import prohibition under paragraph (h)(9)(iv)(G) of this
50 CFR 216.24(h)(9)(iv)(H) (enhanced display)

page 68 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.24(h)(10)

section. If the Assistant Administrator makes such a determination, the Assistant
Administrator, in cooperation with the Secretaries of the Treasury and Homeland Security,
shall lift the import prohibition under this paragraph and publish notification of such action
in the FEDERAL REGISTER.
(10) Progress report for harvesting nations with export fisheries.
(i)

A harvesting nation shall submit, with respect to an exempt or export fishery, a progress report
to the Assistant Administrator documenting actions taken to:
(A) Develop, adopt and implement its regulatory program; and
(B) Meet the conditions in paragraph (h)(6)(iii) of this section, including with respect to
reducing or maintaining incidental mortality and serious injury of marine mammals below
the bycatch limit for its fisheries.

(ii) The progress report should include the methods the harvesting nation is using to obtain
information in support of a comparability finding and a certification by the harvesting nation of
the accuracy and authenticity of the information contained in the progress report.
(iii) The first progress report will be due two years prior to the end of exemption period and every
four years thereafter on or before July 31.
(iv) The Assistant Administrator may review the progress report to monitor progress made by a
harvesting nation in developing its regulatory program or to reconsider a comparability finding
in accordance with paragraph (h)(8)(vi) of this section.
(11) International cooperation and assistance. Consistent with the authority granted under Marine
Mammal Protection Act at 16 U.S.C. 1378 and the availability of funds, the Assistant Administrator
may:
(i)

Provide appropriate assistance to harvesting nations identified by the Assistant Administrator
under paragraph (h)(5) of this section with respect to the financial or technical means to
develop and implement the requirements of this section;

(ii) Undertake, where appropriate, cooperative research on marine mammal assessments for
abundance, methods to estimate incidental mortality and serious injury and technologies and
techniques to reduce marine mammal incidental mortality and serious injury in export fisheries;
(iii) Encourage and facilitate, as appropriate, the voluntary transfer of appropriate technology on
mutually agreed terms to assist harvesting nations in qualifying for a comparability finding
under paragraph (h)(6) of this section; and
(iv) Initiate, through the Secretary of State, negotiations for the development of bilateral or
multinational agreements with harvesting nations to conserve marine mammals and reduce the
incidental mortality and serious injury of marine mammals in the course of commercial fishing
operations.
(12) Consistency with international obligations. The Assistant Administrator shall ensure, in consultation
with the Department of State and the Office of the United States Trade Representative that any
action taken under this section, including any action to deny a comparability finding or to prohibit
imports, is consistent with the international obligations of the United States, including under the
World Trade Organization Agreement.
50 CFR 216.24(h)(12) (enhanced display)

page 69 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.25

[69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005; 74 FR 1613, Jan. 13, 2009; 81 FR 36184, June 6, 2016;
81 FR 51132, Aug. 3, 2016; 81 FR 54413, Aug. 15, 2016; 83 FR 3625, Jan. 26, 2018; 84 FR 70043, Dec. 20, 2019; 85 FR 29669, May
18, 2020; 85 FR 49975, Aug. 17, 2020; 85 FR 58297, Sept. 18, 2020; 85 FR 69517, Nov. 3, 2020; 87 FR 17023, Mar. 25, 2022]

§ 216.25 Exempted marine mammals and marine mammal products.
(a) The provisions of the MMPA and these regulations shall not apply:
(1) To any marine mammal taken before December 21, 1972[1] , or

(2) To any marine mammal product if the marine mammal portion of such product consists solely of a
marine mammal taken before such date.
(b) The prohibitions contained in § 216.12(c) (3) and (4) shall not apply to marine mammals or marine
mammal products imported into the United States before the date on which a notice is published in the
FEDERAL REGISTER with respect to the designation of the species or stock concerned as depleted or
endangered.
(c) Section 216.12(b) shall not apply to articles imported into the United States before the effective date of
the foreign law making the taking or sale, as the case may be, of such marine mammals or marine
mammal products unlawful.
[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 FR 50376, Oct. 3, 1994]

§ 216.26 Collection of certain marine mammal parts without prior authorization.
Notwithstanding any other provision of this subpart:
(a) Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from land within
1⁄ of a mile of the ocean. The term ocean includes bays and estuaries.
4
(b) Notwithstanding the provisions of subpart D, soft parts that are sloughed, excreted, or discharged
naturally by a living marine mammal in the wild may be collected or imported for bona fide scientific
research and enhancement, provided that collection does not involve the taking of a living marine
mammal in the wild.
(c) Any marine mammal part collected under paragraph (a) of this section or any marine mammal part
collected and imported under paragraph (b) of this section must be registered and identified, and may be
transferred or otherwise possessed, in accordance with § 216.22(c). In registering a marine mammal part
collected or imported under paragraph (b) of this section, the person who collected or imported the part
must also state the scientific research or enhancement purpose for which the part was collected or
imported.
(d) No person may purchase, sell or trade for commercial purposes any marine mammal part collected or
imported under this section.

[1]

In the context of captive maintenance of marine mammals, the only marine mammals exempted under this
section are those that were actually captured or otherwise in captivity before December 21, 1972.
50 CFR 216.26(d) (enhanced display)

page 70 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.26(e)

(e) The export of parts collected without prior authorization under paragraph (b) of this section may occur if
consistent with the provisions at § 216.37(d) under subpart D.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 FR 21933, May 10, 1996]

§ 216.27 Release, non-releasability, and disposition under special exception permits for
rehabilitated marine mammals.
(a) Release requirements.
(1) Any marine mammal held for rehabilitation must be released within six months of capture or import
unless the attending veterinarian determines that:
(i)

The marine mammal might adversely affect marine mammals in the wild;

(ii) Release of the marine mammal to the wild will not likely be successful given the physical
condition and behavior of the marine mammal; or
(iii) More time is needed to determine whether the release of the marine mammal to the wild will
likely be successful. Releasability must be reevaluated at intervals of no less than six months
until 24 months from capture or import, at which time there will be a rebuttable presumption
that release into the wild is not feasible.
(2) The custodian of the rehabilitated marine mammal shall provide written notification prior to any
release into the wild.
(i)

Notification shall be provided to:
(A) The NMFS Regional Director at least 15 days in advance of releasing any beached or
stranded marine mammal, unless advance notice is waived in writing by the Regional
Director; or
(B) The Office Director at least 30 days in advance of releasing any imported marine mammal.

(ii) Notification shall include the following:
(A) A description of the marine mammal, including its physical condition and estimated age;
(B) The date and location of release; and
(C) The method and duration of transport prior to release.
(3) The Regional Director, or the Office Director as appropriate, may:
(i)

Require additional information prior to any release;

(ii) Change the date or location of release, or the method or duration of transport prior to release;
(iii) Impose additional conditions to improve the likelihood of success or to monitor the success of
the release; or
(iv) Require other disposition of the marine mammal.
(4) All marine mammals must be released near wild populations of the same species, and stock if
known, unless a waiver is granted by the Regional Director or the Office Director.

50 CFR 216.27(a)(4) (enhanced display)

page 71 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.27(a)(5)

(5) All marine mammals released must be tagged or marked in a manner acceptable to the Regional
Director or the Office Director. The tag number or description of the marking must be reported to the
Regional Director or Office Director following release.
(b) Non-releasability and postponed determinations.
(1) The attending veterinarian shall provide the Regional Director or Office Director with a written report
setting forth the basis of any determination under paragraphs (a)(1)(i) through (iii) of this section.
(2) Upon receipt of a report under paragraph (b)(1) of this section, the Regional Director or Office
Director, in their sole discretion, may:
(i)

Order the release of the marine mammal;

(ii) Order continued rehabilitation for an additional 6 months; or
(iii) Order other disposition as authorized.
(3) No later than 30 days after a marine mammal is determined unreleasable in accordance with
paragraphs (a)(1)(i) through (iii) of this section, the person with authorized custody must:
(i)

Request authorization to retain or transfer custody of the marine mammal in accordance with
paragraph (c) of this section, or;

(ii) Humanely euthanize the marine mammal or arrange any other disposition of the marine
mammal authorized by the Regional Director or Office Director.
(4) Notwithstanding any of the provisions of this section, the Office Director may require use of a
rehabilitated marine mammal for any activity authorized under subpart D in lieu of animals taken
from the wild.
(5) Any rehabilitated beached or stranded marine mammal placed on public display following a nonreleasability determination under paragraph (a)(1) of this section and pending disposition under
paragraph (c) of this section, or any marine mammal imported for medical treatment otherwise
unavailable and placed on public display pending disposition after such medical treatment is
concluded, must be held in captive maintenance consistent with all requirements for public display.
(c) Disposition for a special exception purpose.
(1) Upon receipt of an authorization request made under paragraph (b)(3)(i) of this section, or release
notification under (a)(2), the Office Director may authorize the retention or transfer of custody of the
marine mammal for a special exception purpose authorized under subpart D.
(2) The Office Director will first consider requests from a person authorized to hold the marine mammal
for rehabilitation. The Office Director may authorize such person to retain or transfer custody of the
marine mammal for scientific research, enhancement, or public display purposes.
(3) The Office Director may authorize retention or transfer of custody of the marine mammal only if:
(i)

Documentation has been submitted to the Office Director that the person retaining the subject
animal or the person receiving custody of the subject animal by transfer, hereinafter referred to
as the recipient, complies with public display requirements of 16 U.S.C. 1374(c)(2)(A) or, for
purposes of scientific research and enhancement, holds an applicable permit, or an application
for such a special exception permit under § 216.33 or a request for a major amendment under
§ 216.39 has been submitted to the Office Director and has been found complete;

50 CFR 216.27(c)(3)(i) (enhanced display)

page 72 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.27(c)(3)(ii)

(ii) The recipient agrees to hold the marine mammal in conformance with all applicable
requirements and standards; and
(iii) The recipient acknowledges that the marine mammal is subject to seizure by the Office
Director:
(A) If, at any time pending issuance of the major amendment or permit, the Office Director
determines that seizure is necessary in the interest of the health or welfare of the marine
mammal;
(B) If the major amendment or permit is denied; or
(C) If the recipient is issued a notice of violation and assessment, or is subject to permit
sanctions, in accordance with 15 CFR part 904.
(4) There shall be no remuneration associated with any transfer, provided that, the transferee may
reimburse the transferor for any and all costs associated with the rehabilitation and transport of the
marine mammal.
(5) Marine mammals undergoing rehabilitation or pending disposition under this section shall not be
subject to public display, unless such activities are specifically authorized by the Regional Director or
the Office Director, and conducted consistent with the requirements applicable to public display.
Such marine mammals shall not be trained for performance or be included in any aspect of a
program involving interaction with the public; and
(6) Marine mammals undergoing rehabilitation shall not be subject to intrusive research, unless such
activities are specifically authorized by the Office Director in consultation with the Marine Mammal
Commission and its Committee of Scientific Advisors on Marine Mammals, and are conducted
pursuant to a scientific research permit.
(d) Reporting. In addition to the report required under § 216.22(b), the person authorized to hold marine
mammals for rehabilitation must submit reports to the Regional Director or Office Director regarding
release or other disposition. These reports must be provided in the form and frequency specified by the
Regional Director or Office Director.
[61 FR 21933, May 10, 1996]

Subpart D—Special Exceptions
§ 216.30 [Reserved]
§ 216.31 Definitions.
For the purpose of this subpart, the definitions set forth in 50 CFR part 217 shall apply to all threatened and
endangered marine mammals, unless a more restrictive definition exists under the MMPA or part 216.
[61 FR 21935, May 10, 1996]

§ 216.32 Scope.
The regulations of this subpart apply to:
(a) All marine mammals and marine mammal parts taken or born in captivity after December 20, 1972; and
50 CFR 216.32(a) (enhanced display)

page 73 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.32(b)

(b) All marine mammals and marine mammal parts that are listed as threatened or endangered under the
ESA.
[61 FR 21935, May 10, 1996]

§ 216.33 Permit application submission, review, and decision procedures.
(a) Application submission. Persons seeking a special exemption permit under this subpart must submit an
application to the Office Director. The application must be signed by the applicant, and provide in a
properly formatted manner all information necessary to process the application. Written instructions
addressing information requirements and formatting may be obtained from the Office Director upon
request.
(b) Applications to export living marine mammals. For applicants seeking a special exception permit to export
living marine mammals, the application must:
(1) Be submitted through the Convention on International Trade in Endangered Fauna and Flora
management authority of the foreign government or, if different, the appropriate agency or agencies
of the foreign government that exercises oversight over marine mammals.
(2) Include a certification from the foreign government that:
(i)

The information set forth in the application is accurate;

(ii) The laws and regulations of the foreign governmentinvolved allow enforcement of the terms
and conditions of the permit, and that the foreign government will enforce all terms and
conditions; and
(iii) The foreign government involved will afford comity to any permit amendment, modification,
suspension or revocation decision.
(c) Initial review.
(1) NMFS will notify the applicant of receipt of the application.
(2) During the initial review, the Office Director will determine:
(i)

Whether the application is complete.

(ii) Whether the proposed activity is for purposes authorized under this subpart.
(iii) If the proposed activity is for enhancement purposes, whether the species or stock identified in
the application is in need of enhancement for its survival or recovery and whether the proposed
activity will likely succeed in its objectives.
(iv) Whether the activities proposed are to be conducted consistent with the permit restrictions and
permit specific conditions as described in § 216.35 and § 216.36(a).
(v) Whether sufficient information is included regarding the environmental impact of the proposed
activity to enable the Office Director:

50 CFR 216.33(c)(2)(v) (enhanced display)

page 74 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.33(c)(2)(v)(A)

(A) To make an initial determination under the National Environmental Policy Act (NEPA) as to
whether the proposed activity is categorically excluded from preparation of further
environmental documentation, or whether the preparation of an environmental
assessment (EA) or environmental impact statement (EIS) is appropriate or necessary;
and
(B) To prepare an EA or EIS if an initial determination is made by the Office Director that the
activity proposed is not categorically excluded from such requirements.
(3) The Office Director may consult with the Marine Mammal Commission (Commission) and its
Committee of Scientific Advisors on Marine Mammals (Committee) in making these initial, and any
subsequent, determinations.
(4) Incomplete applications will be returned with explanation. If the applicant fails to resubmit a
complete application or correct the identified deficiencies within 60 days, the application will be
deemed withdrawn. Applications that propose activities inconsistent with this subpart will be
returned with explanation, and will not be considered further.
(d) Notice of receipt and application review.
(1) Upon receipt of a valid, complete application, and the preparation of any NEPA documentation that
has been determined initially to be required, the Office Director will publish a notice of receipt in the
FEDERAL REGISTER. The notice will:
(i)

Summarize the application, including:
(A) The purpose of the request;
(B) The species and number of marine mammals;
(C) The type and manner of special exception activity proposed;
(D) The location(s) in which the marine mammals will be taken, from which they will be
imported, or to which they will be exported; and
(E) The requested period of the permit.

(ii) List where the application is available for review.
(iii) Invite interested parties to submit written comments concerning the application within 30 days
of the date of the notice.
(iv) Include a NEPA statement that an initial determination has been made that the activity
proposed is categorically excluded from the requirement to prepare an EA or EIS, that an EA
was prepared resulting in a finding of no significant impact, or that a final EIS has been
prepared and is available for review.
(2) The Office Director will forward a copy of the complete application to the Commission for comment.
If no comments are received within 45 days (or such longer time as the Office Director may
establish) the Office Director will consider the Commission to have no objection to issuing a permit.
(3) The Office Director may consult with any other person, institution, or agency concerning the
application.
(4) Within 30 days of publication of the notice of receipt in the FEDERAL REGISTER, any interested party
may submit written comments or may request a public hearing on the application.
50 CFR 216.33(d)(4) (enhanced display)

page 75 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.33(d)(5)

(5) If the Office Director deems it advisable, the Office Director may hold a public hearing within 60 days
of publication of the notice of receipt in the FEDERAL REGISTER. Notice of the date, time, and place of
the public hearing will be published in the FEDERAL REGISTER not less than 15 days in advance of the
public hearing. Any interested person may appear in person or through representatives and may
submit any relevant material, data, views, or comments. A summary record of the hearing will be
kept.
(6) The Office Director may extend the period during which any interested party may submit written
comments. Notice of the extension must be published in the FEDERAL REGISTER within 60 days of
publication of the notice of receipt in the FEDERAL REGISTER.
(7) If, after publishing a notice of receipt, the Office Director determines on the basis of new information
that an EA or EIS must be prepared, the Office Director must deny the permit unless an EA is
prepared with a finding of no significant impact. If a permit is denied under these circumstances the
application may be resubmitted with information sufficient to prepare an EA or EIS, and will be
processed as a new application.
(e) Issuance or denial procedures.
(1) Within 30 days of the close of the public hearing or, if no public hearing is held, within 30 days of the
close of the public comment period, the Office Director will issue or deny a special exception permit.
(2) The decision to issue or deny a permit will be based upon:
(i)

All relevant issuance criteria set forth at § 216.34;

(ii) All purpose-specific issuance criteria as appropriate set forth at § 216.41, § 216.42, and §
216.43;
(iii) All comments received or views solicited on the permit application; and
(iv) Any other information or data that the Office Director deems relevant.
(3) If the permit is issued, upon receipt, the holder must date and sign the permit, and return a copy of
the original to the Office Director. The permit shall be effective upon the permit holder's signing of
the permit. In signing the permit, the holder:
(i)

Agrees to abide by all terms and conditions set forth in the permit, and all restrictions and
relevant regulations under this subpart; and

(ii) Acknowledges that the authority to conduct certain activities specified in the permit is
conditional and subject to authorization by the Office Director.
(4) Notice of the decision of the Office Director shall be published in the FEDERAL REGISTER within 10 days
after the date of permit issuance or denial and shall indicate where copies of the permit, if issued,
may be reviewed or obtained. If the permit issued involves marine mammals listed as endangered or
threatened under the ESA, the notice shall include a finding by the Office Director that the permit:
(i)

Was applied for in good faith;

(ii) If exercised, will not operate to the disadvantage of such endangered or threatened species; and
(iii) Is consistent with the purposes and policy set forth in section 2 of the ESA.
(5) If the permit is denied, the Office Director shall provide the applicant with an explanation for the
denial.
50 CFR 216.33(e)(5) (enhanced display)

page 76 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.33(e)(6)

(6) Under the MMPA, the Office Director may issue a permit for scientific research before the end of the
public comment period if delaying issuance could result in injury to a species, stock, or individual, or
in loss of unique research opportunities. The Office Director also may waive the 30-day comment
period required under the ESA in an emergency situation where the health or life of an endangered or
threatened marine mammal is threatened and no reasonable alternative is available. If a permit is
issued under these circumstances, notice of such issuance before the end of the comment period
shall be published in the FEDERAL REGISTER within 10 days of issuance.
(7) The applicant or any party opposed to a permit may seek judicial review of the terms and conditions
of such permit or of a decision to deny such permit. Review may be obtained by filing a petition for
review with the appropriate U.S. District Court as provided for by law.
[61 FR 21935, May 10, 1996]

§ 216.34 Issuance criteria.
(a) For the Office Director to issue any permit under this subpart, the applicant must demonstrate that:
(1) The proposed activity is humane and does not present any unnecessary risks to the health and
welfare of marine mammals;
(2) The proposed activity is consistent with all restrictions set forth at § 216.35 and any purposespecific restrictions as appropriate set forth at § 216.41, § 216.42, and § 216.43;
(3) The proposed activity, if it involves endangered or threatened marine mammals, will be conducted
consistent with the purposes and policies set forth in section 2 of the ESA;
(4) The proposed activity by itself or in combination with other activities, will not likely have a significant
adverse impact on the species or stock;
(5) Whether the applicant's expertise, facilities, and resources are adequate to accomplish successfully
the objectives and activities stated in the application;
(6) If a live animal will be held captive or transported, the applicant's qualifications, facilities, and
resources are adequate for the proper care and maintenance of the marine mammal; and
(7) Any requested import or export will not likely result in the taking of marine mammals or marine
mammal parts beyond those authorized by the permit.
(b) The opinions or views of scientists or other persons or organizations knowledgeable of the marine
mammals that are the subject of the application or of other matters germane to the application will be
considered.
[61 FR 21936, May 10, 1996]

§ 216.35 Permit restrictions.
Link to an amendment published at 89 FR 100402, Dec. 12, 2024.
The following restrictions shall apply to all permits issued under this subpart:

50 CFR 216.35 (enhanced display)

page 77 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.35(a)

(a) The taking, importation, export, or other permitted activity involving marine mammals and marine
mammal parts shall comply with the regulations of this subpart.
(b) The maximum period of any special exception permit issued, or any major amendment granted, is five
years from the effective date of the permit or major amendment. In accordance with the provisions of §
216.39, the period of a permit may be extended by a minor amendment up to 12 months beyond that
established in the original permit.
(c) Except as provided for in § 216.41(c)(1)(v), marine mammals or marine mammal parts imported under
the authority of a permit must be taken or imported in a humane manner, and in compliance with the Acts
and any applicable foreign law. Importation of marine mammals and marine mammal parts is subject to
the provisions of 50 CFR part 14.
(d) The permit holder shall not take from the wild any marine mammal which at the time of taking is either
unweaned or less than eight months old, or is a part of a mother-calf/pup pair, unless such take is
specifically authorized in the conditions of the special exception permit. Additionally, the permit holder
shall not import any marine mammal that is pregnant or lactating at the time of taking or import, or is
unweaned or less than eight months old unless such import is specifically authorized in the conditions of
the special exception permit.
(e) Captive marine mammals shall not be released into the wild unless specifically authorized by the Office
Director under a scientific research or enhancement permit.
(f) The permit holder is responsible for all activities of any individual who is operating under the authority of
the permit;
(g) Individuals conducting activities authorized under the permit must possess qualifications commensurate
with their duties and responsibilities, or must be under the direct supervision of a person with such
qualifications;
(h) Persons who require state or Federal licenses to conduct activities authorized under the permit must be
duly licensed when undertaking such activities;
(i)

Special exception permits are not transferable or assignable to any other person, and a permit holder may
not require any direct or indirect compensation from another person in return for requesting authorization
for such person to conduct the taking, import, or export activities authorized under the subject permit;

(j)

The permit holder or designated agent shall possess a copy of the permit when engaged in a permitted
activity, when the marine mammal is in transit incidental to such activity, and whenever marine mammals
or marine mammal parts are in the possession of the permit holder or agent. A copy of the permit shall be
affixed to any container, package, enclosure, or other means of containment, in which the marine
mammals or marine mammal parts are placed for purposes of transit, supervision, or care. For marine
mammals held captive and marine mammal parts in storage, a copy of the permit shall be kept on file in
the holding or storage facility.

[61 FR 21936, May 10, 1996]

§ 216.36 Permit conditions.
(a) Specific conditions.
(1) Permits issued under this subpart shall contain specific terms and conditions deemed appropriate by
the Office Director, including, but not limited to:
50 CFR 216.36(a)(1) (enhanced display)

page 78 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

(i)

50 CFR 216.36(a)(1)(i)

The number and species of marine mammals that are authorized to be taken, imported,
exported, or otherwise affected;

(ii) The manner in which marine mammals may be taken according to type of take;
(iii) The location(s) in which the marine mammals may be taken, from which they may be imported,
or to which they may be exported, as applicable, and, for endangered or threatened marine
mammal species to be imported or exported, the port of entry or export;
(iv) The period during which the permit is valid.
(2) [Reserved]
(b) Other conditions. In addition to the specific conditions imposed pursuant to paragraph (a) of this section,
the Office Director shall specify any other permit conditions deemed appropriate.
[61 FR 21937, May 10, 1996]

§ 216.37 Marine mammal parts.
With respect to marine mammal parts acquired by take or import authorized under a permit issued under this
subpart:
(a) Marine mammal parts are transferrable if:
(1) The person transferring the part receives no remuneration of any kind for the marine mammal part;
(2) The person receiving the marine mammal part is:
(i)

An employee of NMFS, the U.S. Fish and Wildlife Service, or any other governmental agency
with conservation and management responsibilities, who receives the part in the course of their
official duties;

(ii) A holder of a special exception permit which authorizes the take, import, or other activity
involving the possession of a marine mammal part of the same species as the subject part; or
(iii) In the case of marine mammal parts from a species that is not depleted, endangered or
threatened, a person who is authorized under section 112(c) of the MMPA and subpart C of this
part to take or import marine mammals or marine mammal parts;
(iv) Any other person specifically authorized by the Regional Director, consistent with the
requirements of paragraphs (a)(1) and (a)(3) through (6) of this section.
(3) The marine mammal part is transferred for the purpose of scientific research, maintenance in a
properly curated, professionally accredited scientific collection, or education, provided that, for
transfers for educational purposes, the recipient is a museum, educational institution or equivalent
that will ensure that the part is available to the public as part of an educational program;
(4) A unique number assigned by the permit holder is marked on or affixed to the marine mammal part
or container;
(5) The person receiving the marine mammal part agrees that, as a condition of receipt, subsequent
transfers may only occur subject to the provisions of paragraph (a) of this section; and

50 CFR 216.37(a)(5) (enhanced display)

page 79 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.37(a)(6)

(6) Within 30 days after the transfer, the person transferring the marine mammal part notifies the
Regional Director of the transfer, including a description of the part, the person to whom the part was
transferred, the purpose of the transfer, certification that the recipient has agreed to comply with the
requirements of paragraph (a) of this section for subsequent transfers, and, if applicable, the
recipient's permit number.
(b) Marine mammal parts may be loaned to another person for a purpose described in paragraph (a)(3) of
this section and without the agreement and notification required under paragraphs (a)(5) and (6) of this
section, if:
(1) A record of the loan is maintained; and
(2) The loan is for not more than one year. Loans for a period greater than 12 months, including loan
extensions or renewals, require notification of the Regional Director under paragraph (a)(6).
(c) Unless other disposition is specified in the permit, a holder of a special exception permit may retain
marine mammal parts not destroyed or otherwise disposed of during or after a scientific research or
enhancement activity, if such marine mammal parts are:
(1) Maintained as part of a properly curated, professionally accredited collection; or
(2) Made available for purposes of scientific research or enhancement at the request of the Office
Director.
(d) Marine mammal parts may be exported and subsequently reimported by a permit holder or subsequent
authorized recipient, for the purpose of scientific research, maintenance in a properly curated,
professionally accredited scientific collection, or education, provided that:
(1) The permit holder or other person receives no remuneration for the marine mammal part;
(2) A unique number assigned by the permit holder is marked on or affixed to the marine mammal
specimen or container;
(3) The marine mammal part is exported or reimported in compliance with all applicable domestic and
foreign laws;
(4) If exported or reimported for educational purposes, the recipient is a museum, educational
institution, or equivalent that will ensure that the part is available to the public as part of an
educational program; and
(5) Special reports are submitted within 30 days after both export and reimport as required by the Office
Director under § 216.38.
[61 FR 21937, May 10, 1996]

§ 216.38 Reporting.
All permit holders must submit annual, final, and special reports in accordance with the requirements established in
the permit, and any reporting format established by the Office Director.
[61 FR 21937, May 10, 1996]

50 CFR 216.38 (enhanced display)

page 80 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.39

§ 216.39 Permit amendments.
(a) General. Special exception permits may be amended by the Office Director. Major and minor amendments
may be made to permits in response to, or independent of, a request from the permit holder. Amendments
must be consistent with the Acts and comply with the applicable provisions of this subpart.
(1) A major amendment means any change to the permit specific conditions under § 216.36(a)
regarding:
(i)

The number and species of marine mammals that are authorized to be taken, imported,
exported, or otherwise affected;

(ii) The manner in which these marine mammals may be taken, imported, exported, or otherwise
affected, if the proposed change may result in an increased level of take or risk of adverse
impact;
(iii) The location(s) in which the marine mammals may be taken, from which they may be imported,
and to which they may be exported, as applicable; and
(iv) The duration of the permit, if the proposed extension would extend the duration of the permit
more than 12 months beyond that established in the original permit.
(2) A minor amendment means any amendment that does not constitute a major amendment.
(b) Amendment requests and proposals.
(1) Requests by a permit holder for an amendment must be submitted in writing and include the
following:
(i)

The purpose and nature of the amendment;

(ii) Information, not previously submitted as part of the permit application or subsequent reports,
necessary to determine whether the amendment satisfies all issuance criteria set forth at §
216.34, and, as appropriate, § 216.41, § 216.42, and § 216.43.
(iii) Any additional information required by the Office Director for purposes of reviewing the
proposed amendment.
(2) If an amendment is proposed by the Office Director, the permit holder will be notified of the proposed
amendment, together with an explanation.
(c) Review of proposed amendments —
(1) Major amendments. The provisions of § 216.33(d) and (e) governing notice of receipt, review and
decision shall apply to all proposed major amendments.
(2) Minor amendments.
(i)

After reviewing all appropriate information, the Office Director will provide the permit holder with
written notice of the decision on a proposed or requested amendment, together with an
explanation for the decision.

(ii) If the minor amendment extends the duration of the permit 12 months or less from that
established in the original permit, notice of the minor amendment will be published in the
FEDERAL REGISTER within 10 days from the date of the Office Director's decision.
(iii) A minor amendment will be effective upon a final decision by the Office Director.
50 CFR 216.39(c)(2)(iii) (enhanced display)

page 81 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.40

[61 FR 21937, May 10, 1996]

§ 216.40 Penalties and permit sanctions.
(a) Any person who violates any provision of this subpart or permit issued thereunder is subject to civil and
criminal penalties, permit sanctions and forfeiture as authorized under the Acts, and 15 CFR part 904.
(b) All special exception permits are subject to suspension, revocation, modification and denial in accordance
with the provisions of subpart D of 15 CFR part 904.
[61 FR 21938, May 10, 1996]

§ 216.41 Permits for scientific research and enhancement.
In addition to the requirements under §§ 216.33 through 216.38, permits for scientific research and enhancement
are governed by the following requirements:
(a) Applicant.
(1) For each application submitted under this section, the applicant shall be the principal investigator
responsible for the overall research or enhancement activity. If the research or enhancement activity
will involve a periodic change in the principal investigator or is otherwise controlled by and
dependent upon another entity, the applicant may be the institution, governmental entity, or
corporation responsible for supervision of the principal investigator.
(2) For any scientific research involving captive maintenance, the application must include supporting
documentation from the person responsible for the facility or other temporary enclosure.
(b) Issuance Criteria. For the Office Director to issue any scientific research or enhancement permit, the
applicant must demonstrate that:
(1) The proposed activity furthers a bona fide scientific or enhancement purpose;
(2) If the lethal taking of marine mammals is proposed:
(i)

Non-lethal methods for conducting the research are not feasible; and

(ii) For depleted, endangered, or threatened species, the results will directly benefit that species or
stock, or will fulfill a critically important research need.
(3) Any permanent removal of a marine mammal from the wild is consistent with any applicable quota
established by the Office Director.
(4) The proposed research will not likely have significant adverse effects on any other component of the
marine ecosystem of which the affected species or stock is a part.
(5) For species or stocks designated or proposed to be designated as depleted, or listed or proposed to
be listed as endangered or threatened:
(i)

The proposed research cannot be accomplished using a species or stock that is not designated
or proposed to be designated as depleted, or listed or proposed to be listed as threatened or
endangered;

50 CFR 216.41(b)(5)(i) (enhanced display)

page 82 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.41(b)(5)(ii)

(ii) The proposed research, by itself or in combination with other activities will not likely have a
long-term direct or indirect adverse impact on the species or stock;
(iii) The proposed research will either:
(A) Contribute to fulfilling a research need or objective identified in a species recovery or
conservation plan, or if there is no conservation or recovery plan in place, a research need
or objective identified by the Office Director in stock assessments established under
section 117 of the MMPA;
(B) Contribute significantly to understanding the basic biology or ecology of the species or
stock, or to identifying, evaluating, or resolving conservation problems for the species or
stock; or
(C) Contribute significantly to fulfilling a critically important research need.
(6) For proposed enhancement activities:
(i)

Only living marine mammals and marine mammal parts necessary for enhancement of the
survival, recovery, or propagation of the affected species or stock may be taken, imported,
exported, or otherwise affected under the authority of an enhancement permit. Marine mammal
parts would include in this regard clinical specimens or other biological samples required for
the conduct of breeding programs or the diagnosis or treatment of disease.

(ii) The activity will likely contribute significantly to maintaining or increasing distribution or
abundance, enhancing the health or welfare of the species or stock, or ensuring the survival or
recovery of the affected species or stock in the wild.
(iii) The activity is consistent with:
(A) An approved conservation plan developed under section 115(b) of the MMPA or recovery
plan developed under section 4(f) of the ESA for the species or stock; or
(B) If there is no conservation or recovery plan, with the Office Director's evaluation of the
actions required to enhance the survival or recovery of the species or stock in light of the
factors that would be addressed in a conservation or recovery plan.
(iv) An enhancement permit may authorize the captive maintenance of a marine mammal from a
threatened, endangered, or depleted species or stock only if the Office Director determines that:
(A) The proposed captive maintenance will likely contribute directly to the survival or recovery
of the species or stock by maintaining a viable gene pool, increasing productivity,
providing necessary biological information, or establishing animal reserves required to
support directly these objectives; and
(B) The expected benefit to the species or stock outweighs the expected benefits of
alternatives that do not require removal of marine mammals from the wild.
(v) The Office Director may authorize the public display of marine mammals held under the
authority of an enhancement permit only if:
(A) The public display is incidental to the authorized captive maintenance;
(B) The public display will not interfere with the attainment of the survival or recovery
objectives;
50 CFR 216.41(b)(6)(v)(B) (enhanced display)

page 83 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.41(b)(6)(v)(C)

(C) The marine mammals will be held consistent with all requirements and standards that are
applicable to marine mammals held under the authority of the Acts and the Animal
Welfare Act, unless the Office Director determines that an exception is necessary to
implement an essential enhancement activity; and
(D) The marine mammals will be excluded from any interactive program and will not be trained
for performance.
(vi) The Office Director may authorize non-intrusive scientific research to be conducted while a
marine mammal is held under the authority of an enhancement permit, only if such scientific
research:
(A) Is incidental to the permitted enhancement activities; and
(B) Will not interfere with the attainment of the survival or recovery objectives.
(c) Restrictions.
(1) The following restrictions apply to all scientific research permits issued under this subpart:
(i)

Research activities must be conducted in the manner authorized in the permit.

(ii) Research results shall be published or otherwise made available to the scientific community in
a reasonable period of time.
(iii) Research activities must be conducted under the direct supervision of the principal investigator
or a co-investigator identified in the permit.
(iv) Personnel involved in research activities shall be reasonable in number and limited to:
(A) Individuals who perform a function directly supportive of and necessary to the permitted
research activity; and
(B) Support personnel included for the purpose of training or as backup personnel for persons
described in paragraph (c)(1)(iv)(A).
(v) Any marine mammal part imported under the authority of a scientific research permit must not
have been obtained as the result of a lethal taking that would be inconsistent with the Acts,
unless authorized by the Office Director.
(vi) Marine mammals held under a permit for scientific research shall not be placed on public
display, included in an interactive program or activity, or trained for performance unless such
activities:
(A) Are necessary to address scientific research objectives and have been specifically
authorized by the Office Director under the scientific research permit; and
(B) Are conducted incidental to and do not in any way interfere with the permitted scientific
research; and
(C) Are conducted in a manner consistent with provisions applicable to public display, unless
exceptions are specifically authorized by the Office Director.
(vii) Any activity conducted incidental to the authorized scientific research activity must not involve
any taking of marine mammals beyond what is necessary to conduct the research (i.e.,
educational and commercial photography).
50 CFR 216.41(c)(1)(vii) (enhanced display)

page 84 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.41(c)(2)

(2) Any marine mammal or progeny held in captive maintenance under an enhancement permit shall be
returned to its natural habitat as soon as feasible, consistent with the terms of the enhancement
permit and the objectives of an approved conservation or recovery plan. In accordance with section
10(j) of the ESA, the Office Director may authorize the release of any population of an endangered or
threatened species outside the current range of such species if the Office Director determines that
such release will further the conservation of such species.
[61 FR 21938, May 10, 1996]

§ 216.42 Photography. [Reserved]
§ 216.43 Public display. [Reserved]
§ 216.44 Applicability/transition.
(a) General. The regulations of this subpart are applicable to all persons, including persons holding permits or
other authorizing documents issued before June 10, 1996, by NMFS for the take, import, export, or
conduct of any otherwise prohibited activity involving a marine mammal or marine mammal part for
special exception purposes.
(b) Scientific research. Any intrusive research as defined in § 216.3, initiated after June 10, 1996, must be
authorized under a scientific research permit. Intrusive research authorized by the Office Director to be
conducted on captive marine mammals held for public display purposes prior to June 10, 1996, must be
authorized under a scientific research permit one year after June 10, 1996.
[61 FR 21939, May 10, 1996]

§ 216.45 General Authorization for Level B harassment for scientific research.
Link to an amendment published at 89 FR 100402, Dec. 12, 2024.
(a) General Authorization.
(1) Persons are authorized under section 104(c)(3)(C) of the MMPA to take marine mammals in the wild
by Level B harassment, as defined in § 216.3, for purposes of bona fide scientific research Provided,
That:
(i)

They submit a letter of intent in accordance with the requirements of paragraph (b) of this
section, receive confirmation that the General Authorization applies in accordance with
paragraph (c) of this section, and comply with the terms and conditions of paragraph (d) of this
section; or

(ii) If such marine mammals are listed as endangered or threatened under the ESA, they have been
issued a permit under Section 10(a)(1)(A) of the ESA and implementing regulations at 50 CFR
parts 217-227, particularly at § 222.23 through § 222.28, to take marine mammals in the wild
for the purpose of scientific research, the taking authorized under the permit involves such
Level B harassment of marine mammals or marine mammal stocks, and they comply with the
terms and conditions of that permit.

50 CFR 216.45(a)(1)(ii) (enhanced display)

page 85 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.45(a)(2)

(2) Except as provided under paragraph (a)(1)(ii) of this section, no taking, including harassment, of
marine mammals listed as threatened or endangered under the ESA is authorized under the General
Authorization. Marine mammals listed as endangered or threatened under the ESA may be taken for
purposes of scientific research only after issuance of a permit for such activities pursuant to the
ESA.
(3) The following types of research activities will likely qualify for inclusion under the General
Authorization: Photo-identification studies, behavioral observations, and vessel and aerial population
surveys (except aerial surveys over pinniped rookeries at altitudes of less than 1,000 ft).
(b) Letter of intent. Except as provided under paragraph (a)(1)(ii) of this section, any person intending to take
marine mammals in the wild by Level B harassment for purposes of bona fide scientific research under
the General Authorization must submit, at least 60 days before commencement of such research, a letter
of intent by certified return/receipt mail to the Chief, Permits Division, F/PR1, Office of Protected
Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910-3226.
(1) The letter of intent must be submitted by the principal investigator (who shall be deemed the
applicant). For purposes of this section, the principal investigator is the individual who is responsible
for the overall research project, or the institution, governmental entity, or corporation responsible for
supervision of the principal investigator.
(2) The letter of intent must include the following information:
(i)

The name, address, telephone number, qualifications and experience of the applicant and any
co-investigator(s) to be conducting the proposed research, and a curriculum vitae for each,
including a list of publications by each such investigator relevant to the objectives,
methodology, or other aspects of the proposed research;

(ii) The species or stocks of marine mammals (common and scientific names) that are the subject
of the scientific research and any other species or stock of marine mammals that may be
harassed during the conduct of the research;
(iii) The geographic location(s) in which the research is to be conducted, e.g., geographic name or
lat./long.;
(iv) The period(s) of time over which the research will be conducted (up to five years), including the
field season(s) for the research, if applicable;
(v) The purpose of the research, including a description of how the proposed research qualifies as
bona fide research as defined in § 216.3; and
(vi) The methods to be used to conduct the research.
(3) The letter of intent must be signed, dated, and certified by the applicant as follows:
In accordance with section 104(c)(3)(C) of the Marine Mammal Protection Act of 1972, as amended (16
U.S.C. 1361 et seq.) and implementing regulations (50 CFR part 216), I hereby notify the National Marine
Fisheries Service of my intent to conduct research involving only Level B harassment on marine mammals
in the wild, and request confirmation that the General Authorization for Level B Harassment for Scientific
Research applies to the proposed research as described herein. I certify that the information in this letter
of intent is complete, true, and correct to the best of my knowledge and belief, and I understand that any
false statement may subject me to the criminal penalties of 18 U.S.C. 1001, or penalties under the MMPA
and implementing regulations. I acknowledge and accept that authority to conduct scientific research on
50 CFR 216.45(b)(3) (enhanced display)

page 86 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.45(c)

marine mammals in the wild under the General Authorization is a limited conditional authority restricted to
Level B harassment only, and that any other take of marine mammals, including the conduct of any
activity that has the potential to injure marine mammals (i.e., Level A harassment), may subject me to
penalties under the MMPA and implementing regulations.
(c) Confirmation that the General Authorization applies or notification of permit requirement.
(1) Not later than 30 days after receipt of a letter of intent as described in paragraph (b) of this section,
the Chief, Permits Division, NMFS will issue a letter to the applicant either:
(i)

Confirming that the General Authorization applies to the proposed scientific research as
described in the letter of intent;

(ii) Notifying the applicant that all or part of the research described in the letter of intent is likely to
result in a taking of a marine mammal in the wild involving other than Level B harassment and,
as a result, cannot be conducted under the General Authorization, and that a scientific research
permit is required to conduct all or part of the subject research; or
(iii) Notifying the applicant that the letter of intent fails to provide sufficient information and
providing a description of the deficiencies, or notifying the applicant that the proposed research
as described in the letter of intent is not bona fide research as defined in § 216.3.
(2) A copy of each letter of intent and letter confirming that the General Authorization applies or
notifying the applicant that it does not apply will be forwarded to the Marine Mammal Commission.
(3) Periodically, NMFS will publish a summary document in the FEDERAL REGISTER notifying the public of
letters of confirmation issued.
(d) Terms and conditions. Persons issued letters of confirmation in accordance with paragraph (c) of this
section are responsible for complying with the following terms and conditions:
(1) Activities are limited to those conducted for the purposes, by the means, in the locations, and during
the periods of time described in the letter of intent and acknowledged as authorized under the
General Authorization in the confirmation letter sent pursuant to paragraph (c) of this section;
(2) Annual reports of activities conducted under the General Authorization must be submitted to the
Chief, Permits Division (address listed in paragraph (b) of this section) within 90 days of completion
of the last field season(s) during the calendar year or, if the research is not conducted during a
defined field season, no later than 90 days after the anniversary date of the letter of confirmation
issued under paragraph (c) of this section. Annual reports must include:
(i)

A summary of research activities conducted;

(ii) Identification of the species and number of each species taken by Level B harassment;
(iii) An evaluation of the progress made in meeting the objectives of the research as described in
the letter of intent; and
(iv) Any incidental scientific, educational, or commercial uses of photographs, videotape, and film
obtained as a result of or incidental to the research and if so, names of all photographers.

50 CFR 216.45(d)(2)(iv) (enhanced display)

page 87 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.45(d)(3)

(3) Authorization to conduct research under the General Authorization is for the period(s) of time
identified in the letter of intent or for a period of 5 years from the date of the letter of confirmation
issued under paragraph (c) of this section, whichever is less, unless extended by the Director or
modified, suspended, or revoked in accordance with paragraph (e) of this section;
(4) Activities conducted under the General Authorization may only be conducted under the on-site
supervision of the principal investigator or co-investigator(s) named in the letter of intent. All
personnel involved in the conduct of activities under the General Authorization must perform a
function directly supportive of and necessary for the research being conducted, or be one of a
reasonable number of support personnel included for the purpose of training or as back-up
personnel;
(5) The principal investigator must notify the appropriate Regional Director, NMFS, (Regional Director) in
writing at least 2 weeks before initiation of on-site activities. The Regional Director shall consider
this information in efforts to coordinate field research activities to minimize adverse impacts on
marine mammals in the wild. The principal investigator must cooperate with coordination efforts by
the Regional Director in this regard;
(6) If research activities result in a taking which exceeds Level B harassment, the applicant shall:
(i)

Report the taking within 12 hours to the Director, Office of Protected Resources, or his designee
as set forth in the letter authorizing research; and

(ii) Temporarily discontinue for 72 hours all field research activities that resulted in the taking.
During this time period, the applicant shall consult with NMFS as to the circumstances
surrounding the taking and any precautions necessary to prevent future taking, and may agree
to amend the research protocol, as deemed necessary by NMFS.
(7) NMFS may review scientific research conducted pursuant to the General Authorization. If requested
by NMFS, the applicant must cooperate with any such review and shall:
(i)

Allow any employee of NOAA or any other person designated by the Director, Office of Protected
Resources to observe research activities; and

(ii) Provide any documents or other information relating to the scientific research;
(8) Any photographs, videotape, or film obtained during the conduct of research under the General
Authorization must be identified by a statement that refers to the General Authorization or ESA
permit number, and includes the file number provided by NMFS in the confirmation letter, the name
of the photographer, and the date the image was taken. This statement must accompany the
image(s) in all subsequent uses or sales. The annual report must note incidental scientific,
educational, or commercial uses of the images, and if there are any such uses, the names of all
photographers; and
(9) Persons conducting scientific research under authority of the General Authorization may not transfer
or assign any authority granted thereunder to any other person.
(e) Suspension, revocation, or modification.
(1) NMFS may suspend, revoke, or modify the authority to conduct scientific research under the General
Authorization if:
(i)

The letter of intent included false information or statements of a material nature;

50 CFR 216.45(e)(1)(i) (enhanced display)

page 88 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.45(e)(1)(ii)

(ii) The research does not constitute bona fide scientific research;
(iii) Research activities result in takings of marine mammals other than by Level B harassment;
(iv) Research activities differ from those described in the letter of intent submitted by the applicant
and letter of confirmation issued by NMFS; or
(v) The applicant violates any term or condition set forth in this section.
(2) Any suspension, revocation, or modification is subject to the requirements of 15 CFR part 904.
[59 FR 50376, Oct. 3, 1994]

§ 216.46 U.S. citizens on foreign flag vessels operating under the International Dolphin
Conservation Program.
The MMPA's provisions do not apply to a citizen of the United States who incidentally takes any marine mammal
during fishing operations in the ETP which are outside the U.S. exclusive economic zone (as defined in section 3 of
the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1802)), while employed on a fishing
vessel of a harvesting nation that is participating in, and in compliance with, the IDCP.
[65 FR 56, Jan. 3, 2000]

§ 216.47 Access to marine mammal tissue, analyses, and data.
(a) Applications for the National Marine Mammal Tissue Bank samples (NMMTB).
(1) A principal investigator, contributor or holder of a scientific research permit issued in accordance
with the provisions of this subpart may apply for access to a tissue specimen sample in the NMMTB.
Applicants for tissue specimen samples from the NMMTB must submit a signed written request
with attached study plan to the Marine Mammal Health and Stranding Response Program
(MMHSRP) Program Manager, Office of Protected Resources, NMFS. The written request must
include:
(i)

A clear and concise statement of the proposed use of the banked tissue specimen. The
applicant must demonstrate that the proposed use of the banked tissue is consistent with the
goals of the NMMTB and the MMHSRP.
(A) The goals of the MMHSRP are to facilitate the collection and dissemination of reference
data on marine mammals and health trends of marine mammal populations in the wild; to
correlate the health of marine mammals and marine mammal populations in the wild with
available data on physical, chemical, and biological environmental parameters; and to
coordinate effective responses to unusual mortality events.
(B) The goal of the NMMTB is to maintain quality controlled marine mammal tissues that will
permit retrospective analyses to determine environmental trends of contaminants and
other analytes of interest and that will provide the highest quality samples for analyses
using new and innovative techniques.

(ii) A copy of the applicant's scientific research permit. The applicant must demonstrate that the
proposed use of the banked tissue is authorized by the permit;
(iii) Name of principal investigator, official title, and affiliated research or academic organization;
50 CFR 216.47(a)(1)(iii) (enhanced display)

page 89 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.47(a)(1)(iv)

(iv) Specific tissue sample and quantity desired;
(v) Research facility where analyses will be conducted. The applicant must demonstrate that the
research facility will follow the Analytical Quality Assurance (AQA) program, which was
designed to ensure the accuracy, precision, level of detection, and intercompatibility of data
resulting from chemical analyses of marine mammal tissues. The AQA consists of annual
interlaboratory comparisons and the development of control materials and standard reference
materials for marine mammal tissues;
(vi) Verification that funding is available to conduct the research;
(vii) Estimated date for completion of research, and schedule/date of subsequent reports;
(viii) Agreement that all research findings based on use of the banked tissue will be reported to the
NMMTB, MMHSRP Program Manager and the contributor; and the sequences of tissue
specimen samples that are used/released for genetic analyses (DNA sequencing) will be
archived in the National Center for biotechnology Information's GenBank. Sequence accessions
in GenBank should document the source, citing a NIST field number that indentifies the animal;
and
(ix) Agreement that credit and acknowledgment will be given to U.S. Fish and Wildlife Service
(USFWS), US Geologic Service (USGS), National Institute of Standards and Technology (NIST),
the Minerals Management Service (MMS), NMFS, the NMMTB, and the collector for use of
banked tissues.
(2) The applicant shall insert the following acknowledgment in all publications, abstracts, or
presentations based on research using the banked tissue:
The specimens used in this study were collected by [the contributor] and provided by the National Marine
Mammal Tissue Bank, which is maintained in the National Biomonitoring Specimen Bank at NIST and
which is operated under the direction of NMFS with the collaboration of MMS, USGS, USFWS, and NIST
through the Marine Mammal Health and Stranding Response Program [and the Alaska Marine Mammal
Tissue Archival Project if the samples are from Alaska].
(3) Upon submission of a complete application, the MMHSRP Program Manager will send the request
and attached study plan to the following entities which will function as the review committee:
(i)

Appropriate Federal agency (NMFS or USFWS) marine mammal management office for that
particular species; and

(ii) Representatives of the NMMTB Collaborating Agencies (NMFS, USFS, USGS Biological
Resources Division, and NIST) If no member of the review committee is an expert in the field
that is related to the proposed research activity, any member may request an outside review of
the proposal, which may be outside of NMFS or USFWS but within the Federal Government.
(4) The MMHSRP Program Manager will send the request and attached study plan to any contributor(s)
of the tissue specimen sample. The contributor(s) of the sample may submit comments on the
proposed research activity to the Director, Office of Protected Resources within 30 days of the date
that the request was sent to the contributor(s).
(5) The USFWS Representative of the NMMTB Collaborating Agencies will be chair of review committees
for requests involving species managed by the DOI. The MMHSRP Program Manager will be chair of
all other review committees.
50 CFR 216.47(a)(5) (enhanced display)

page 90 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.47(a)(6)

(6) Each committee chair will provide recommendations on the request and an evaluation of the study
plan to the Director, Office of Protected Resources, NMFS.
(7) The Director, Office of Protected Resources, NMFS, will make the final decision on release of the
samples based on the advice provided by the review committee, comments received from any
contributor(s) of the sample within the time provided in paragraph (a)(4) of this section, and
determination that the proposed use of the banked tissue specimen is consistent with the goals of
the MMHSRP and the NMMTB. The Director will send a written decision to the applicant and send
copies to all review committee members. If the samples are released, the response will indicate
whether the samples have been homogenized and, if not, the homogenization schedule.
(8) The applicant will bear all shipping and homogenization costs related to use of any specimens from
the NMMTB.
(9) The applicant will dispose of the tissue specimen sample consistent with the provisions of the
applicant's scientific research permit after the research is completed, unless the requester submits
another request and receives approval pursuant to this section. The request must be submitted
within three months after the original project has been completed.
(b) [Reserved]
[69 FR 41979, July 13, 2004]

§§ 216.48-216.49 [Reserved]
Subpart E—Designated Ports
§ 216.50 Importation at designated ports.
(a) Any marine mammal or marine mammal product which is subject to the jurisdiction of the National
Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce
and is intended for importation into the United States shall be subject to the provisions of 50 CFR part 14.
(b) For the information of importers, designated ports of entry for the United States are:
New York, N.Y.
Miami, Fla.
Chicago, Ill.
San Francisco, Calif.
Los Angeles, Calif.
New Orleans, La.
Seattle, Wash.
Honolulu, Hi.
50 CFR 216.50(b) (enhanced display)

page 91 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.50(c)

(c) Additionally, marine mammals or marine mammal products which are entered into Alaska, Hawaii, Puerto
Rico, Guam, American Samoa or the Virgin Islands and which are not to be forwarded or transhipped
within the United States may be imported through the following ports:
Alaska—Juneau, Anchorage, Fairbanks
Hawaii—Honolulu
Puerto Rico—San Juan
Guam—Honolulu, Hi.
American Samoa—Honolulu, Hi.
Virgin Islands—San Juan, P.R.
(d) Importers are advised to see 50 CFR part 14 for importation requirements and information.
[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]

Subpart F—Pribilof Islands, Taking for Subsistence Purposes
§ 216.71 Allowable take of fur seals.
Pribilovians may take fur seals on the Pribilof Islands if such taking is
(a) For subsistence uses, and
(b) Not accomplished in a wasteful manner.
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.72 Restrictions on subsistence use of fur seals.
(a) The harvests of seals on St. Paul and St. George Islands shall be treated independently for the purposes
of this section. Any suspension, termination, or extension of the harvest is applicable only to the island for
which it is issued.
(b)-(c) [Reserved]
(d) St. George Island. The subsistence fur seal harvest restrictions described in paragraphs (d)(1) through (5)
of this section apply exclusively to the harvest of sub-adult fur seals; restrictions that apply exclusively to
the harvest of young of the year fur seals can be found in paragraphs (d)(6) through (11) of this section.
For the taking of fur seals for subsistence uses, Pribilovians on St. George Island may harvest up to a total
of 500 male fur seals per year over the course of both the sub-adult male harvest and the male young of
the year harvest. Pribilovians are authorized each year up to three mortalities of female fur seals
associated with the subsistence seasons. Any female fur seal mortalities will be included in the total
authorized subsistence harvest of 500 fur seals per year.
(1) Pribilovians may only harvest sub-adult male fur seals 124.5 centimeters or less in length from June
23 through August 8 annually on St. George Island.
50 CFR 216.72(d)(1) (enhanced display)

page 92 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.72(d)(2)

(2) Pribilovians may harvest sub-adult male fur seals at the hauling grounds shown in Figure 1 to part
216. No hauling ground may be harvested more than twice per week.
(3) [Reserved]
(4) The scheduling of the sub-adult male harvest is at the discretion of the Pribilovians, but must be
such as to minimize stress to the harvested seals. The Pribilovians must give adequate advance
notice of their harvest schedules to the NMFS representatives to allow for necessary monitoring
activities. No fur seal may be taken except by experienced sealers using the traditional harvesting
methods, including stunning followed immediately by exsanguination. The harvesting method shall
include organized drives of sub-adult male fur seals to killing fields, unless the NMFS representatives
determine, in consultation with the Pribilovians conducting the harvest, that alternative methods will
not result in increased disturbance to the rookery or the increased accidental take of female seals.
(5) [Reserved]
(6) Pribilovians may only harvest male young of the year from September 16 through November 30
annually on St. George Island. Pribilovians may harvest up to 150 male fur seal young of the year
annually.
(7) No more than 50 male young of the year may be harvested from each of the following regions where
fur seals congregate: East region includes the breeding areas known as East Reef and East Cliffs
rookeries and the associated non-breeding hauling grounds; South region includes the breeding
areas known as Zapadni and South rookeries and the associated non-breeding hauling grounds; and
North region includes the breeding areas known as North and Staraya Artil rookeries and associated
non-breeding hauling grounds, as shown in Figure 1 to part 216. No area may be harvested more
than twice per week and must be in accordance with paragraph (d)(10) of this section.
(8) The scheduling of the young of the year harvest is at the discretion of the Pribilovians, but must be
such as to minimize stress to the harvested and un-harvested fur seals and minimize the take of
female fur seals. The Pribilovians must give adequate advance notice of their harvest schedules to
the NMFS representatives to allow for necessary monitoring activities. No fur seal may be taken
except by sealers using the harvesting methods implemented to reduce disturbance, injury, and
accidental mortality of female fur seals. Pribilovians may use, but are not limited to, organized drives
of young of the year fur seals from congregating areas to inland killing fields. Methods of harvest
must include identification of male young of the year, followed by stunning and immediate
exsanguination, unless the NMFS representatives, in consultation with the Pribilovians conducting
the harvest, determine that alternative methods will not result in increased stress to harvested and
un-harvested fur seals, increased disturbance or injury to resting fur seals, or the accidental mortality
of female seals.
(9) [Reserved]
(10) No young of the year fur seals may be taken from any designated breeding area or its associated
hauling ground(s) where the most recent NMFS analysis projects that pup production has greater
than a 5 percent probability of falling below a level capable of sustaining a harvest in 10 years.
(11) No more than 120 days after the final subsistence harvest each calendar year, NMFS representatives
and St. George Island community members must review the implementation of the harvest and
consider best harvest practices and determine if implementation can be improved to better meet the
subsistence needs of the St. George Island community or reduce negative effects on fur seals.

50 CFR 216.72(d)(11) (enhanced display)

page 93 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.72(e)

(e) St. Paul Island. For the taking of fur seals for subsistence uses, Pribilovians on St. Paul Island are
authorized to take by hunt and harvest up to 2,000 juvenile (less than 7 years old, including pups) male fur
seals per year.
(1) Juvenile male fur seals may be killed with firearms from January 1 through May 31 annually, or may
be killed using alternative hunting methods developed through the St. Paul Island Co-management
Council if those methods are consistent with § 216.71 and result in substantially similar effects. A
firearm is any weapon, such as a pistol or rifle, capable of firing a missile using an explosive charge
as a propellant.
(2) Juvenile male fur seals may be harvested without the use of firearms from June 23 through
December 31 annually. Authorized harvest may be by established harvest methods of herding and
stunning followed immediately by exsanguination, or by alternative harvest methods developed
through the St. Paul Island Co-management Council if those methods are consistent with § 216.71
and result in substantially similar effects.
(3) Pribilovians are authorized each year up to 20 mortalities of female fur seals associated with the
subsistence seasons. Any female fur seal mortalities will be included in the total number of fur seals
authorized per year for subsistence uses (2,000).
(f) Subsistence use suspension provisions.
(1) The Assistant Administrator is required to suspend the take provided for in § 216.71 on St. George
and/or St. Paul Islands, as appropriate, when:
(i)

He or she determines that subsistence use is being conducted in a wasteful manner; or

(ii) With regard to St. George Island, two female fur seals have been killed during the subsistence
seasons on St. George Island.
(2) A suspension based on a determination under paragraph (f)(1)(i) of this section may be lifted by the
Assistant Administrator if he or she finds that the conditions that led to the determination that
subsistence use was being conducted in a wasteful manner have been remedied.
(3) A suspension based on a determination under paragraph (f)(1)(ii) of this section may be lifted by the
Assistant Administrator if he or she finds that the conditions that led to the killing of two female fur
seals on St. George Island have been remedied and additional or improved methods to detect female
fur seals during the subsistence seasons are being implemented.
(g) Subsistence use termination provisions. The Assistant Administrator shall terminate the annual take
provided for in § 216.71 on the Pribilof Islands, as follows:
(1) For St. Paul Island:
(i)

For the hunting of juvenile male fur seals with firearms, at the end of the day on May 31 or when
2,000 fur seals have been killed, whichever comes first;

(ii) For the harvest of juvenile male fur seals without firearms, at the end of the day on December
31 or when 2,000 fur seals have been killed, whichever comes first; or
(iii) When 20 female fur seals have been killed during the subsistence seasons.
(2) For St. George Island:

50 CFR 216.72(g)(2) (enhanced display)

page 94 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

(i)

50 CFR 216.72(g)(2)(i)

For the sub-adult male harvest, at the end of the day on August 8 or when 500 sub-adult male
seals have been harvested, whichever comes first;

(ii) For the male young of the year harvest, at the end of the day on November 30 or earlier when
either of the following occurs first: 150 male young of the year fur seals have been harvested or
a total of 500 male sub-adult and male young of the year fur seals have been harvested; or
(iii) When three female fur seals have been killed during the subsistence seasons.
[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 FR 35474, July 12, 1994. Redesignated at 61 FR 11750,
Mar. 22, 1996, as amended at 79 FR 65337, Nov. 4, 2014; 84 FR 52382, Oct. 2, 2019; 85 FR 15948, Mar. 20, 2020]

§ 216.73 Disposition of fur seal parts.
Except for transfers to other Alaskan Natives for barter or sharing for personal or family consumption, no part of a
fur seal taken for subsistence uses may be sold or otherwise transferred to any person unless it is a nonedible
byproduct which:
(a) Has been transformed into an article of handicraft, or
(b) Is being sent by an Alaskan Native directly, or through a registered agent, to a tannery registered under 50
CFR 216.23(c) for the purpose of processing, and will be returned directly to the Alaskan Native for
conversion into an article of handicraft, or
(c) Is being sold or transferred to an Alaskan Native, or to an agent registered under 50 CFR 216.23(c) for
resale or transfer to an Alaskan Native, who will convert the seal part into a handicraft.
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.74 Cooperation between fur seal subsistence users, tribal and Federal officials.
Federal scientists and Pribilovians cooperatively manage the subsistence use of northern fur seals under section
119 of the Marine Mammal Protection Act (16 U.S.C. 1388). The federally recognized tribes on the Pribilof Islands
have signed agreements describing a shared interest in the conservation and management of fur seals and the
designation of co-management councils that meet and address the purposes of the co-management agreements
for representatives from NMFS, St. George and St. Paul tribal governments. NMFS representatives are responsible
for compiling information related to sources of human-caused mortality and serious injury of marine mammals. The
Pribilovians are responsible for reporting their subsistence needs and actual level of subsistence take. This
information is used to update stock assessment reports and make determinations under § 216.72. Pribilovians who
take fur seals for subsistence uses collaborate with NMFS representatives and the respective Tribal representatives
to consider best subsistence use practices under co-management and to facilitate scientific research.
[84 FR 52383, Oct. 2, 2019, as amnded at 85 FR 15948, Mar. 20, 2020]

Subpart G—Pribilof Islands Administration
§ 216.81 Visits to fur seal rookeries.
From June 1 to October 15 of each year, no person, except those authorized by a representative of the National
Marine Fisheries Service, or accompanied by an authorized employee of the National Marine Fisheries Service, shall
approach any fur seal rookery or hauling grounds nor pass beyond any posted sign forbidding passage.
50 CFR 216.81 (enhanced display)

page 95 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.82

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.82 Dogs prohibited.
In order to prevent molestation of fur seal herds, the landing of any dogs at Pribilof Islands is prohibited.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.83 Importation of birds or mammals.
No mammals or birds, except household cats, canaries and parakeets, shall be imported to the Pribilof Islands
without the permission of an authorized representative of the National Marine Fisheries Service.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.84 [Reserved]
§ 216.85 Walrus and Otter Islands.
By Executive Order 1044, dated February 27, 1909, Walrus and Otter Islands were set aside as bird reservations. All
persons are prohibited to land on these islands except those authorized by the appropriate representative of the
National Marine Fisheries Service.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.86 Local regulations.
Local regulations will be published from time to time and will be brought to the attention of local residents and
persons assigned to duty on the Islands by posting in public places and brought to the attention of tourists by
personal notice.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.87 Wildlife research.
(a) Wildlife research, other than research on North Pacific fur seals, including specimen collection, may be
permitted on the Pribilof Islands subject to the following conditions:
(1) Any person or agency, seeking to conduct such research shall first obtain any Federal or State of
Alaska permit required for the type of research involved.
(2) Any person seeking to conduct such research shall obtain prior approval of the Director, Pribilof
Islands Program, National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, 1700 Westlake Avenue North, Seattle, WA 98109, by filing with the Director an
application which shall include:
(i)

Copies of the required Federal and State of Alaska permits; and

(ii) A resume of the intended research program.

50 CFR 216.87(a)(2)(ii) (enhanced display)

page 96 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.87(a)(3)

(3) All approved research shall be subject to all regulations and administrative procedures in effect on
the Pribilof Islands, and such research shall not commence until approval from the Director is
received.
(4) Any approved research program shall be subject to such terms and conditions as the Director,
Pribilof Islands Program deems appropriate.
(5) Permission to utilize the Pribilof Islands to conduct an approved research 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
Islands.
[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 requirements for using the official mark described 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 exported
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 standards.
(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 exported 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 contained 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 seriously 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 intentionally deployed on or to
encircle dolphins, 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
dolphins is not having a significant adverse impact on any depleted stock.
(2) Driftnet. By a vessel engaged in large-scale driftnet fishing; or

50 CFR 216.91(a)(2) (enhanced display)

page 97 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.91(a)(3)

(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 appropriate,
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 intentionally 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 written 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 seriously injured in the sets in which the tuna
were caught;
(B) For a vessel other than one described 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 fishing 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
(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
Program 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
participating in a national or international observer program are qualified and authorized to
issue observer statements for purposes of the dolphin-safe labeling program, and where such
an observer 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 Assistant Administrator shall be
announced 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 deployed 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 dolphins and tuna (similar to the association
between dolphins and tuna in the ETP) or a regular and significant mortality or serious injury of
50 CFR 216.91(a)(3)(v) (enhanced display)

page 98 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.91(a)(3)(v)(A)

dolphins is occurring, a written statement, executed 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 determines an observer statement is
unnecessary. Determinations under this paragraph (a)(3)(v) 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 that:
(A) No fishing gear was intentionally deployed on or used to encircle dolphins during the trip
on which the tuna were caught;
(B) No dolphins were killed or seriously 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 separate from tuna caught in a nondolphin-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 deployment
where a dolphin was killed or seriously 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 requirements:
(A) The importer of record or U.S. processor of tuna or tuna products, as applicable, maintains
information on the complete chain of custody, including storage facilities, transshippers,
processors, re-processors, and wholesalers/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 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 accompanied 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 correct;
(B) The tuna or tuna products meet the dolphin-safe labeling standards under this section; and
50 CFR 216.91(a)(5)(ii)(B) (enhanced display)

page 99 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.91(a)(5)(ii)(C)

(C) The chain of custody information is correct.
(iii) The information referred to in paragraphs (a)(5)(i) and (ii) of this section is maintained at the
place of business of the importer of record or the U.S. processor, as applicable, for a period of 2
years from the date of the import 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 deceive consumers about the
level of protection 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 dolphins, 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 activities 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 processing 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 tracking 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 yellowfin tuna was harvested by a U.S. vessel fishing in compliance with the requirements of the
IDCP and applicable U.S. law, or by a vessel belonging to a nation that has obtained an affirmative
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 applicable 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 accompanied as described in § 216.24(f)(3) by a properly
completed FCO; and

50 CFR 216.92(b)(2)(ii) (enhanced display)

page 100 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.92(b)(2)(iii)

(iii) The tuna or tuna products are accompanied as described in § 216.24(f)(3) by valid
documentation signed by a representative of the appropriate IDCP member nation, containing
the harvesting vessel names and tuna tracking form numbers represented in the shipment, and
certifying that:
(A) There was an IDCP approved observer on board the vessel(s) during the entire trip(s); and
(B) The tuna contained in the shipment were caught according to the dolphin-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 program.
The Administrator, Southwest Region, has established a national tracking and verification program to accurately
document the dolphin-safe condition of tuna, under the standards set forth in §§ 216.91 and 216.92. The tracking
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 operations is attained
through the establishment 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 Agreement 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 approved 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 following each set, and the vessel captain and observer review and sign both TTFs at
the end of the fishing trip certifying that the information on the forms is accurate. TTFs are confidential
official documents of the IDCP, consistent with Article XVIII of the Agreement on the IDCP, and the
Agreement on the IDCP Rules of Confidentiality.
(b) Dolphin-Safe Certification. Upon request, 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 certification is requested is dolphin-safe under the requirements of the Agreement 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 personnel 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 dolphinsafe if the first tuna loaded into the well during a trip was captured in a set in which no dolphin
died or was seriously injured. The observer will initially identify a vessel fish well as non-

50 CFR 216.93(c)(1)(i) (enhanced display)

page 101 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.93(c)(1)(ii)

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 designated nondolphin-safe is considered non-dolphin-safe tuna. The observer 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.
(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 included fishing in the ETP, must
provide at least 48 hours' notice of the vessel'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 unloading, 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 identification 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 international 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 harvested 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 authorized observer under § 216.91. Any
tuna loaded into a well previously designated non-dolphin-safe is considered non-dolphin-safe
tuna. The captain or, where applicable, a qualified and authorized 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-dolphin-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 identification of the dolphin-safe or non-dolphin-safe
designation of the tuna as it left the fishing vessel.

50 CFR 216.93(c)(2)(ii) (enhanced display)

page 102 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.93(c)(3)

(3) Other vessels. This paragraph (c)(3) applies to tuna product labeled dolphin-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 separate from nondolphin-safe tuna by using netting, other material, or separate storage areas. The captain or,
where applicable, a qualified and authorized 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 identification 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 company in the 50 states, Puerto Rico, or American Samoa receives a
domestic or imported shipment of tuna for processing, 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 report to the Administrator, Southwest Region, of all tuna received at
their processing facilities in each calendar month whether or not the tuna is actually canned or
stored during that month. Monthly cannery receipt reports must be submitted electronically or by
mail before the last day of the month following the month being reported. 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 decimal, ocean area of capture (ETP, western Pacific, Indian, eastern and western
Atlantic, other), catcher vessel, gear type, trip dates, carrier name, unloading dates, and location
of unloading. 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 submitted in
conjunction with the monthly 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 identifier number(s) and dolphin-safe or non-dolphin-safe designation
of each container or lot; and
(iii) Details of the disposition of fish (for example, canning, sale, rejection, etc.).

50 CFR 216.93(d)(3)(iii) (enhanced display)

page 103 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.93(d)(4)

(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, conveyers, tables, or other canning and labeling machinery.
(e) Tracking processor operations other than cannery operations. U.S. tuna processors 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 products, except fresh tuna, that are imported 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 statements must be submitted
by the importer 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 certifications, any reports required in paragraphs
(a), (b), (d) and (e) of this section, invoices, other import documents, and trip reports.
(2) Record submission. At the time of, or in advance of, importation of a shipment of tuna or tuna
products, any importer of tuna or tuna products must submit all corresponding FCOs and required
certifications and statements for those tuna or tuna products as required by § 216.24(f)(2).
(3) Audits and spot checks. Upon request of the Administrator, Southwest Region, any exporter,
transshipper, importer, processor, or wholesaler/distributor of tuna or tuna products must provide the
Administrator, Southwest Region, timely access to all pertinent records and facilities to allow for
audits and spot-checks on caught, landed, stored, and processed tuna.
(h) Confidentiality of proprietary information. Information submitted to the Assistant Administrator under this
section will be treated as confidential in accordance with NOAA Administrative Order 216-100 “Protection
of Confidential Fisheries Statistics.”
[78 FR 41002, July 9, 2013, as amended at 81 FR 51133, Aug. 3, 2016]

§ 216.94 False statements or endorsements.
Any person who knowingly and willfully makes a false statement or false endorsement required by § 216.92 is liable
for a civil penalty not to exceed $100,000, that may be assessed in an action brought in any appropriate District
Court of the United States on behalf 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:
50 CFR 216.95(a) (enhanced display)

page 104 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.95(b)

(b) Location and size of the official mark. The official mark on labels must allow the consumer to identify the
official 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 Marine Mammals Incidental to
Specified Activities
Source: 61 FR 15887, Apr. 10, 1996, unless otherwise noted.

50 CFR 216.95(b) (enhanced display)

page 105 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.101

§ 216.101 Purpose.
The regulations in this subpart implement 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 incidental,
but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographic region.

§ 216.102 Scope.
The taking of small numbers of marine 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 taking by the specified activity during
the specified time period will have a negligible 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 subsistence uses;
(b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an
incidental harassment authorization issued under § 216.107, setting forth permissible 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 subsistence
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
authorization, 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
subsequent 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 taking 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,
unavoidable or accidental. (A complete definition of “take” is contained in § 216.3).
Negligible impact is an impact resulting from the specified activity that cannot be reasonably expected to, and is
not reasonably likely to, adversely affect the species or stock through effects 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 taking of small numbers of marine mammals.
50 CFR 216.103 “Specified activity” (enhanced display)

page 106 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.103 “Specified geographical region”

Specified geographical region means an area within which a specified activity is conducted and that has certain
biogeographic characteristics.
Unmitigable adverse impact means an impact resulting from the specified activity:
(1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet
subsistence needs by:
(i)

Causing the marine mammals to abandon or avoid hunting areas;

(ii) Directly displacing subsistence users; or
(iii) Placing physical barriers between the marine mammals and the subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to increase the availability of marine
mammals to allow subsistence needs to be met.

§ 216.104 Submission of requests.
(a) In order for the National Marine Fisheries Service to consider authorizing the taking by U.S. citizens of
small numbers of marine mammals incidental to a specified activity (other than commercial fishing), or to
make a finding that an incidental take is unlikely to occur, a written request must be submitted to the
Assistant Administrator. All requests must include the following information for their activity:
(1) A detailed description of the specific activity or class of activities that can be expected to result in
incidental taking of marine mammals;
(2) The date(s) and duration of such activity and the specific geographical region where it will occur;
(3) The species and numbers of marine mammals likely to be found within the activity area;
(4) A description of the status, distribution, and seasonal distribution (when applicable) of the affected
species or stocks of marine mammals likely to be affected by such activities;
(5) The type of incidental taking authorization that is being requested (i.e., takes by harassment only;
takes by harassment, injury and/or death) and the method of incidental taking;
(6) By age, sex, and reproductive condition (if possible), the number of marine mammals (by species)
that may be taken by each type of taking identified in paragraph (a)(5) of this section, and the
number of times such takings by each type of taking are likely to occur;
(7) The anticipated impact of the activity upon the species or stock of marine mammal;
(8) The anticipated impact of the activity on the availability of the species or stocks of marine mammals
for subsistence uses;
(9) The anticipated impact of the activity upon the habitat of the marine mammal populations, and the
likelihood of restoration of the affected habitat;
(10) The anticipated impact of the loss or modification of the habitat on the marine mammal populations
involved;
(11) The availability and feasibility (economic and technological) of equipment, methods, and manner of
conducting such activity or other means of effecting the least practicable adverse impact upon the
affected species or stocks, their habitat, and on their availability for subsistence uses, paying
particular attention to rookeries, mating grounds, and areas of similar significance;
50 CFR 216.104(a)(11) (enhanced display)

page 107 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.104(a)(12)

(12) Where the proposed activity would take place in or near a traditional Arctic subsistence hunting area
and/or may affect the availability of a species or stock of marine mammal for Arctic subsistence
uses, the applicant must submit either a plan of cooperation or information that identifies what
measures have been taken and/or will be taken to minimize any adverse effects on the availability of
marine mammals for subsistence uses. A plan must include the following:
(i)

A statement that the applicant has notified and provided the affected subsistence community
with a draft plan of cooperation;

(ii) A schedule for meeting with the affected subsistence communities to discuss proposed
activities and to resolve potential conflicts regarding any aspects of either the operation or the
plan of cooperation;
(iii) A description of what measures the applicant has taken and/or will take to ensure that
proposed activities will not interfere with subsistence whaling or sealing; and
(iv) What plans the applicant has to continue to meet with the affected communities, both prior to
and while conducting the activity, to resolve conflicts and to notify the communities of any
changes in the operation;
(13) The suggested means of accomplishing the necessary monitoring and reporting that will result in
increased knowledge of the species, the level of taking or impacts on populations of marine
mammals that are expected to be present while conducting activities and suggested means of
minimizing burdens by coordinating such reporting requirements with other schemes already
applicable to persons conducting such activity. Monitoring plans should include a description of the
survey techniques that would be used to determine the movement and activity of marine mammals
near the activity site(s) including migration and other habitat uses, such as feeding. Guidelines for
developing a site-specific monitoring plan may be obtained by writing to the Director, Office of
Protected Resources; and
(14) Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and
activities relating to reducing such incidental taking and evaluating its effects.
(b)
(1) The Assistant Administrator shall determine the adequacy and completeness of a request and, if
determined to be adequate and complete, will begin the public review process by publishing in the
FEDERAL REGISTER either:
(i)

A proposed incidental harassment authorization; or

(ii) A notice of receipt of a request for the implementation or reimplementation of regulations
governing the incidental taking.
(2) Through notice in the FEDERAL REGISTER, newspapers of general circulation, and appropriate electronic
media in the coastal areas that may be affected by such activity, NMFS will invite information,
suggestions, and comments for a period not to exceed 30 days from the date of publication in the
FEDERAL REGISTER. All information and suggestions will be considered by the National Marine
Fisheries Service in developing, if appropriate, the most effective regulations governing the issuance
of letters of authorization or conditions governing the issuance of an incidental harassment
authorization.

50 CFR 216.104(b)(2) (enhanced display)

page 108 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.104(b)(3)

(3) Applications that are determined to be incomplete or inappropriate for the type of taking requested,
will be returned to the applicant with an explanation of why the application is being returned.
(c) The Assistant Administrator shall evaluate each request to determine, based upon the best available
scientific evidence, whether the taking by the specified activity within the specified geographic region will
have a negligible impact on the species or stock and, where appropriate, will not have an unmitigable
adverse impact on the availability of such species or stock for subsistence uses. If the Assistant
Administrator finds that the mitigating measures would render the impact of the specified activity
negligible when it would not otherwise satisfy that requirement, the Assistant Administrator may make a
finding of negligible impact subject to such mitigating measures being successfully implemented. Any
preliminary findings of “negligible impact” and “no unmitigable adverse impact” shall be proposed for
public comment along with either the proposed incidental harassment authorization or the proposed
regulations for the specific activity.
(d) If, subsequent to the public review period, the Assistant Administrator finds that the taking by the
specified activity would have more than a negligible impact on the species or stock of marine mammal or
would have an unmitigable adverse impact on the availability of such species or stock for subsistence
uses, the Assistant Administrator shall publish in the FEDERAL REGISTER the negative finding along with the
basis for denying the request.

§ 216.105 Specific regulations.
(a) For all petitions for regulations under this paragraph, applicants must provide the information requested in
§ 216.104(a) on their activity as a whole, which includes, but is not necessarily limited to, an assessment
of total impacts by all persons conducting the activity.
(b) For allowed activities that may result in incidental takings of small numbers of marine mammals by
harassment, serious injury, death or a combination thereof, specific regulations shall be established for
each allowed activity that set forth:
(1) Permissible methods of taking;
(2) Means of effecting the least practicable adverse impact on the species and its habitat and on the
availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting, including requirements for the independent peer-review
of proposed monitoring plans where the proposed activity may affect the availability of a species or
stock for taking for subsistence uses.
(c) Regulations will be established based on the best available information. As new information is developed,
through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after
notice and opportunity for public review.

§ 216.106 Letter of Authorization.
(a) A Letter of Authorization, which may be issued only to U.S. citizens, is required to conduct activities
pursuant to any regulations established under § 216.105. Requests for Letters of Authorization shall be
submitted to the Director, Office of Protected Resources. The information to be submitted in a request for
an authorization will be specified in the appropriate subpart to this part or may be obtained by writing to
the above named person.
(b) Issuance of a Letter of Authorization will be based on a determination that the level of taking will be
consistent with the findings made for the total taking allowable under the specific regulations.
50 CFR 216.106(b) (enhanced display)

page 109 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.106(c)

(c) Letters of Authorization will specify the period of validity and any additional terms and conditions
appropriate for the specific request.
(d) Notice of issuance of all Letters of Authorization will be published in the FEDERAL REGISTER within 30 days
of issuance.
(e) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as
appropriate, if, after notice and opportunity for public comment, the Assistant Administrator determines
that:
(1) The regulations prescribed are not being substantially complied with; or
(2) The taking allowed is having, or may have, more than a negligible impact on the species or stock or,
where relevant, an unmitigable adverse impact on the availability of the species or stock for
subsistence uses.
(f) The requirement for notice and opportunity for public review in § 216.106(e) shall not apply if the
Assistant Administrator determines that an emergency exists that poses a significant risk to the wellbeing
of the species or stocks of marine mammals concerned.
(g) A violation of any of the terms and conditions of a Letter of Authorization or of the specific regulations
shall subject the Holder and/or any individual who is operating under the authority of the Holder's Letter of
Authorization to penalties provided in the MMPA.

§ 216.107 Incidental harassment authorization for Arctic waters.
(a) Except for activities that have the potential to result in serious injury or mortality, which must be
authorized under § 216.105, incidental harassment authorizations may be issued, following a 30-day
public review period, to allowed activities that may result in only the incidental harassment of a small
number of marine mammals. Each such incidental harassment authorization shall set forth:
(1) Permissible methods of taking by harassment;
(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the
availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting, including requirements for the independent peer-review
of proposed monitoring plans where the proposed activity may affect the availability of a species or
stock for taking for subsistence uses.
(b) Issuance of an incidental harassment authorization will be based on a determination that the number of
marine mammals taken by harassment will be small, will have a negligible impact on the species or stock
of marine mammal(s), and will not have an unmitigable adverse impact on the availability of species or
stocks for taking for subsistence uses.
(c) An incidental harassment authorization will be either issued or denied within 45 days after the close of the
public review period.
(d) Notice of issuance or denial of an incidental harassment authorization will be published in the FEDERAL
REGISTER within 30 days of issuance of a determination.
(e) Incidental harassment authorizations will be valid for a period of time not to exceed 1 year but may be
renewed for additional periods of time not to exceed 1 year for each reauthorization.

50 CFR 216.107(e) (enhanced display)

page 110 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.107(f)

(f) An incidental harassment authorization shall be modified, withdrawn, or suspended if, after notice and
opportunity for public comment, the Assistant Administrator determines that:
(1) The conditions and requirements prescribed in the authorization are not being substantially complied
with; or
(2) The authorized taking, either individually or in combination with other authorizations, is having, or
may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable
adverse impact on the availability of the species or stock for subsistence uses.
(g) The requirement for notice and opportunity for public review in paragraph (f) of this section shall not apply
if the Assistant Administrator determines that an emergency exists that poses a significant risk to the
well-being of the species or stocks of marine mammals concerned.
(h) A violation of any of the terms and conditions of an incidental harassment authorization shall subject the
holder and/or any individual who is operating under the authority of the holder's incidental harassment
authorization to penalties provided in the MMPA.

§ 216.108 Requirements for monitoring and reporting under incidental harassment
authorizations for Arctic waters.
(a) Holders of an incidental harassment authorization in Arctic waters and their employees, agents, and
designees must cooperate with the National Marine Fisheries Service and other designated Federal, state,
or local agencies to monitor the impacts of their activity on marine mammals. Unless stated otherwise
within an incidental harassment authorization, the holder of an incidental harassment authorization
effective in Arctic waters must notify the Alaska Regional Director, National Marine Fisheries Service, of
any activities that may involve a take by incidental harassment in Arctic waters at least 14 calendar days
prior to commencement of the activity.
(b) Holders of incidental harassment authorizations effective in Arctic waters may be required by their
authorization to designate at least one qualified biological observer or another appropriately experienced
individual to observe and record the effects of activities on marine mammals. The number of observers
required for monitoring the impact of the activity on marine mammals will be specified in the incidental
harassment authorization. If observers are required as a condition of the authorization, the observer(s)
must be approved in advance by the National Marine Fisheries Service.
(c) The monitoring program must, if appropriate, document the effects (including acoustical) on marine
mammals and document or estimate the actual level of take. The requirements for monitoring plans, as
specified in the incidental harassment authorization, may vary depending on the activity, the location, and
the time.
(d) Where the proposed activity may affect the availability of a species or stock of marine mammal for taking
for subsistence purposes, proposed monitoring plans or other research proposals must be independently
peer-reviewed prior to issuance of an incidental harassment authorization under this subpart. In order to
complete the peer-review process within the time frames mandated by the MMPA for an incidental
harassment authorization, a proposed monitoring plan submitted under this paragraph must be submitted
to the Assistant Administrator no later than the date of submission of the application for an incidental
harassment authorization. Upon receipt of a complete monitoring plan, and at its discretion, the National
Marine Fisheries Service will either submit the plan to members of a peer review panel for review or within
60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan. The applicant
must submit a final monitoring plan to the Assistant Administrator prior to the issuance of an incidental
harassment authorization.
50 CFR 216.108(d) (enhanced display)

page 111 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.108(e)

(e) At its discretion, the National Marine Fisheries Service may place an observer aboard vessels, platforms,
aircraft, etc., to monitor the impact of activities on marine mammals.
(f)
(1) As specified in the incidental harassment authorization, the holder of an incidental harassment
authorization for Arctic waters must submit reports to the Assistant Administrator within 90 days of
completion of any individual components of the activity (if any), within 90 days of completion of the
activity, but no later than 120 days prior to expiration of the incidental harassment authorization,
whichever is earlier. This report must include the following information:
(i)

Dates and type(s) of activity;

(ii) Dates and location(s) of any activities related to monitoring the effects on marine mammals;
and
(iii) Results of the monitoring activities, including an estimate of the actual level and type of take,
species name and numbers of each species observed, direction of movement of species, and
any observed changes or modifications in behavior.
(2) Monitoring reports will be reviewed by the Assistant Administrator and, if determined to be
incomplete or inaccurate, will be returned to the holder of the authorization with an explanation of
why the report is being returned. If the authorization holder disagrees with the findings of the
Assistant Administrator, the holder may request an independent peer review of the report. Failure to
submit a complete and accurate report may result in a delay in processing future authorization
requests.
(g) Results of any behavioral, feeding, or population studies, that are conducted supplemental to the
monitoring program, should be made available to the National Marine Fisheries Service before applying
for an incidental harassment authorization for the following year.

Subpart J—Taking of Eastern North Pacific (ENP) Gray Whales (Eschrichtius robustus) by the
Makah Indian Tribe Off the Coast of Washington State
Source: 89 FR 51636, June 18, 2024, unless otherwise noted.

§ 216.110 Purpose.
The purpose of this subpart is to establish regulations governing the take of whales from the Eastern North Pacific
(ENP) gray whale (Eschrichtius robustus) stock by the Makah Indian Tribe and its enrolled members in accordance
with the Secretary's determination to issue a waiver of the Marine Mammal Protection Act (MMPA) take moratorium
pursuant to 16 U.S.C. 1371(a)(3).

§ 216.111 Scope.
This subpart authorizes the taking of ENP gray whales only by enrolled members of the Makah Indian Tribe only.

§ 216.112 Definitions.
In addition to the definitions provided in the MMPA, for purposes of this subpart, the following definitions apply:
50 CFR 216.112 (enhanced display)

page 112 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.112 “Barter”

Barter means the exchange of parts from gray whales taken under this subpart for other wildlife or fish or their
parts or for other food or for nonedible items other than money if the exchange is of a noncommercial
nature.
Bonilla-Tatoosh Line means the line running from the western end of Cape Flattery (48°22′53″ N lat., 124°43′54″
W long.) to Tatoosh Island Lighthouse (48°23′30″ N lat., 124°44′12″ W long.) to the buoy adjacent to
Duntze Rock (48°28′00″ N lat., 124°45′00″ W long.), then in a straight line to Bonilla Point (48°35′30″ N lat.,
124°43′00″ W long.) on Vancouver Island, British Columbia.
Calf means any gray whale less than 1 year old.
Enrolled member or member of the Makah Indian Tribe means a person whose name appears on the
membership roll maintained by the Makah Tribal Council.
ENP gray whale means a member of the Eastern North Pacific stock of gray whales (Eschrichtius robustus).
Export means the act of sending goods from one country to another.
Gray whale means a member of the species Eschrichtius robustus.
Harpooner means a member of the Makah Indian Tribe who has been certified by the Tribe as having
demonstrated the qualifications commensurate with the duties and responsibilities of harpooning a gray
whale.
Hunt and hunting mean to pursue, strike, harpoon, shoot, or land a gray whale under a hunt permit issued under
§ 216.113(b) or to attempt any such act, but does not include hunting approaches, training approaches, or
training harpoon throws. As a noun, hunt also means any act of hunting.
Hunt permit means a permit issued by NMFS in accordance with 16 U.S.C. 1374 and this subpart.
Hunting approach means to cause, in any manner, a vessel to be within 100 yards (91.5 m) of a gray whale
during a hunt.
Land and landing mean bringing a gray whale or any products thereof onto the land in the course of hunting.
Makah Indian handicrafts means articles made by a member of the Makah Indian Tribe that contain any
nonedible products of an ENP gray whale that was obtained pursuant to a permit issued under this
subpart, are significantly altered from their natural form, and are produced, decorated, or fashioned in the
exercise of traditional Makah Indian handicrafts without the use of pantographs, multiple carvers, or
similar mass copying devices. Makah Indian handicrafts include, but are not limited to, articles that are
carved, beaded, drawn, or painted.
Makah Indian Tribe or Tribe means the Makah Indian Tribe of the Makah Indian Reservation as described in the
list of federally recognized Indian tribes maintained by the U.S. Department of the Interior.
Minimum population estimate for Pacific Coast Feeding Group (PCFG) gray whales is the lower 20th percentile
of the PCFG population estimate.
NMFS means the National Marine Fisheries Service.
NMFS hunt observer means a person designated by NMFS to accompany and observe a hunt.
Pacific Coast Feeding Group (PCFG) gray whale or PCFG whale means an ENP gray whale photo-identified during
2 or more years between June 1 and November 30 within the region between northern California and
northern Vancouver Island (from 41° N lat. to 52° N lat.) and entered into a photo-identification catalog(s)
recognized by the Regional Administrator.
50 CFR 216.112 “Pacific Coast Feeding Group (PCFG) gray whale or PCFG whale” (enhanced display)

page 113 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.112 “PCFG population estimate”

PCFG population estimate means an abundance estimate based on data derived from photo-identification
surveys and catalog(s) recognized by the Regional Administrator. Such data will also be the basis for
projecting PCFG population estimates in future hunting seasons.
Recordkeeping and reporting mean the collection and delivery of photographs, biological data, harvest data, and
other information regarding activities conducted under the authority of this subpart.
Regional Administrator means the Regional Administrator of NMFS for the West Coast Region.
Rifleman means a member of the Makah Indian Tribe who has been certified by the Tribe as having
demonstrated the qualifications commensurate with the duties and responsibilities of shooting a gray
whale.
Safety officer means a member of the Makah Indian Tribe who has been certified by the Tribe as having
demonstrated the qualifications commensurate with the duties and responsibilities of evaluating hunt
conditions including, but not limited to visibility, target range and bearing, and sea condition.
Share means to voluntarily transfer or gift edible or nonedible parts from gray whales taken under this subpart to
another person without compensation.
Strike or struck means to cause a harpoon, darting gun, or other weapon, or a projectile from a rifle or other
weapon, to penetrate a gray whale's skin or an instance in which a gray whale's skin is penetrated by such
a weapon or projectile during hunting. Multiple strikes on the same whale are considered a single strike.
Struck and lost refers to a gray whale that is struck but not landed.
Summer/fall hunt means a hunting season spanning 4 consecutive months from July 1 to October 31.
Training approach means to cause, in any manner, a training vessel to be within 100 yards (91.5 m) of a gray
whale.
Training harpoon throw means an attempt to contact a gray whale with a blunted spear-like device that is
incapable of penetrating the skin of a gray whale.
Training vessel means a canoe or other watercraft used to train for a hunt that does not carry weapons ordinarily
used by a harpooner or rifleman to strike a gray whale.
Tribal hunt observer means a Tribal member or representative designated by the Tribe who has been certified by
the Tribe as having demonstrated the qualifications commensurate with the duties and responsibilities of
monitoring and reporting on a hunt.
U&A or Makah Indian Tribe's U&A means the Tribe's usual and accustomed fishing grounds, which area consists
of the United States waters in the western Strait of Juan de Fuca west of 123°42′17″ W long. and waters
of the Pacific Ocean off the mainland shoreline of the Washington coast north of 48°02′15″ N lat.
(Norwegian Memorial) and east of 125°44′00″ W long.
Unsuccessful strike attempt means any attempt to strike a gray whale while hunting that does not result in a
strike.
Western North Pacific (WNP) gray whale means a member of the Western North Pacific stock of gray whales
(Eschrichtius robustus).
Whaling captain means a member of the Makah Indian Tribe who has been certified by the Tribe as having
demonstrated the qualifications commensurate with the duties and responsibilities of leading a hunt and
is authorized by the Makah Indian Tribe to be in control of the whaling crew.
50 CFR 216.112 “Whaling captain” (enhanced display)

page 114 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.112 “Whaling crew”

Whaling crew means those members of the Makah Indian Tribe taking part in a hunt under the control of a
whaling captain, not including the Tribal hunt observer.
Winter/spring hunt means a hunting season spanning 6 consecutive months from December 1 to May 31 of the
calendar year following a summer/fall hunt.

§ 216.113 Issuance and duration of permits.
(a) Application.
(1) To obtain an initial hunt permit, the Makah Indian Tribe must submit an application to the Regional
Administrator signed by an official of the Makah Tribal Council that contains the following
information and statements:
(i)

The proposed duration of the permit;

(ii) The maximum number of gray whales to be subjected to hunting or training approaches, struck,
landed, and subjected to unsuccessful strike attempts;
(iii) A demonstration that the proposed method of taking is humane;
(iv) A demonstration that the proposed taking is consistent with this subpart;
(v) A copy of the currently enacted Makah Indian Tribal ordinance governing whaling by Makah
Indian Tribal members;
(vi) A description of the certification process for whaling captains, riflemen, harpooners, Tribal hunt
observers, and safety officers, including any guidelines or manuals used by the Tribe to certify
such persons;
(vii) Any additional hunt permit conditions proposed by the Tribe and a justification for the proposed
conditions; and
(viii) Any modification to this subpart sought by the Tribe and a justification for the proposed
modification.
(2) To obtain subsequent hunt permits, the Makah Indian Tribe must submit an application to the
Regional Administrator, signed by an official of the Makah Tribal Council, that contains the
information required in paragraph (a)(1) of this section and the following information and
statements:
(i)

A description of how the Makah Indian Tribe has complied with the requirements of this subpart
and previously issued hunt permits;

(ii) A description of circumstances associated with gray whale(s) struck and lost under the most
recently issued hunt permit, a description of the measures taken to retrieve such whale(s), and
a description of measures taken by the Makah Indian Tribe to minimize future incidents of
struck and lost gray whales; and
(iii) A description of products obtained from gray whales landed under the most recently issued
hunt permit, including a description of the disposition of any gray whale products deemed
unsuitable for use by Makah Indian Tribal members.

50 CFR 216.113(a)(2)(iii) (enhanced display)

page 115 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.113(a)(3)

(3) The Regional Administrator will notify the Makah Indian Tribe of receipt of the application and will
review the application for completeness. Incomplete applications will be returned with explanation. If
the Makah Indian Tribe fails to resubmit a complete application within 60 days, the application will
be deemed withdrawn.
(4) After receipt of a complete application and the preparation of any National Environmental Policy Act
(NEPA) documentation that the Regional Administrator has determined to be necessary, the Regional
Administrator will publish a notice of receipt in the FEDERAL REGISTER and review the application as
required by 16 U.S.C. 1374.
(b) Issuance.
(1) The Regional Administrator may issue hunt permits to the Makah Indian Tribe authorizing hunting of
ENP gray whales, as well as hunting approaches, training approaches, and training harpoon throws
by enrolled members in accordance with 16 U.S.C. 1374 and the requirements of this subpart.
(2) The Regional Administrator may not authorize hunting, hunting approaches, training approaches, or
training harpoon throws from December 1 through May 31 unless:
(i)

The Tribe has obtained separate authorization to take WNP gray whales under any applicable
provision of the MMPA; or

(ii) The Regional Administrator determines, in consultation with the NMFS Office of Protected
Resources, that take of WNP gray whales is not anticipated.
(3) The Regional Administrator may not authorize hunting unless the population of the ENP gray whale
stock is within its Optimum Sustainable Population (OSP) and the hunting authorized under the
permit would not cause the stock to diminish below OSP.
(4) The duration of the initial hunt permit may not exceed 3 years from its effective date, and thereafter
the duration of a hunt permit may not exceed 5 years.
(5) Each hunt permit will specify the following terms and conditions:
(i)

Those terms required by 16 U.S.C. 1374(b);

(ii) The limits established under § 216.114(c);
(iii) The area where hunts, hunting approaches, training approaches, and training harpoon throws
are allowed, which will be limited to the waters of the Makah Indian Tribe's U&A west of the
Bonilla-Tatoosh Line except as provided in § 216.117(a)(9), and any site and time restrictions to
protect Olympic Coast National Marine Sanctuary resources pursuant to consultation under 16
U.S.C. 1434(d) of the National Marine Sanctuaries Act;
(iv) The beginning and ending dates in each calendar year when the Makah Tribe may engage in
hunting activities, as described in § 216.114(a), and training activities, as described in §
216.114(b);
(v) The type and timing of notice that the Makah Indian Tribe must provide to NMFS before issuing
a Tribal whaling permit authorizing a hunt, hunting approaches, training approaches, or training
harpoon throws;
(vi) Measures to be taken by the hunt permit holder to provide for the safety of the whaling crew, the
public, and others during a hunt;
50 CFR 216.113(b)(5)(vi) (enhanced display)

page 116 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.113(b)(5)(vii)

(vii) That the hunt permit authorizes only the take of ENP gray whales and not the take of any other
marine mammals; and
(viii) Such other provisions as the Regional Administrator deems necessary.
(6) Before issuing a hunt permit, the Regional Administrator must make the following determinations:
(i)

The authorized manner of hunting is humane;

(ii) The Makah Indian Tribe has enacted a Tribal ordinance governing hunting that is consistent
with this subpart;
(iii) The Makah Indian Tribe has in place certification procedures for whaling captains, riflemen,
harpooners, Tribal hunt observers, and safety officers and a process to ensure compliance with
those procedures;
(iv) There are adequate photo-identification catalogs and processes available to allow for the
identification of WNP gray whales and PCFG whales as described in § 216.115(b);
(v) The most recent PCFG population estimate is at least 192 whales and the associated minimum
population estimate is at least 171 whales;
(vi) The PCFG population estimate for the first hunting season covered by the permit is projected to
be at least 192 whales and the associated minimum population estimate is projected to be at
least 171 whales;
(vii) Whether take authorization for WNP gray whales is required by the permit for the winter/spring
hunt, or, if not, that the Regional Administrator, in consultation with the Office of Protected
Resources, has determined that take of WNP gray whales is not anticipated;
(viii) The population of the ENP gray whale stock is within its OSP and the hunting authorized in the
permit will not cause the stock to diminish below OSP; and
(ix) Except for the initial hunt permit, before issuing a hunt permit the Regional Administrator must
determine that the Makah Indian Tribe has complied with the requirements of this subpart and
all prior permit terms and conditions, or if the Makah Indian Tribe has not fully complied, that it
has adopted measures to ensure compliance.

§ 216.114 Hunt management requirements and restrictions.
(a) Hunting seasons. Summer/fall hunts and hunting approaches will only be authorized from July 1 through
October 31, and winter/spring hunts and hunting approaches will only be authorized from December 1
through May 31 of the following calendar year, provided that:
(1) Throughout the duration of the waiver, the authorized hunting dates will alternate between winter/
spring hunts and summer/fall hunts, with winter/spring hunts starting in December of the same
calendar year as a summer/fall hunt and summer/fall hunts starting in the calendar year following
the year in which a winter/spring hunt has ended;
(2) If the start date in the initial hunt permit falls within a winter/spring hunt period, the subsequent
summer/fall hunt will commence in the calendar year following the ending date of said winter/spring
hunt; and

50 CFR 216.114(a)(2) (enhanced display)

page 117 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.114(a)(3)

(3) If the start date in the initial hunt permit of the initial hunt season falls within a summer/fall hunt
period, the subsequent winter/spring hunt will commence in December of the same calendar year as
said summer/fall hunt.
(b) Training period. Hunt permits may authorize training approaches in any month and training harpoon
throws in any month, except as provided in paragraph (c)(2) of this section and provided all necessary
authorizations have been obtained. The authorized training period shall be specified in the permit, as
provided in § 216.113(b)(5)(iv).
(c) Hunting and training limits. The following limits on the number of ENP gray whales approached, subjected
to unsuccessful strike attempts, struck, struck and lost, and landed apply.
(1) A hunt permit may authorize no more than 353 approaches, including both hunting and training
approaches, each calendar year of which no more than 142 of such approaches may be on PCFG
whales. Any hunting approach on a gray whale that has already been struck will not count against
these limits.
(2) A hunt permit may authorize no more than 18 unsuccessful strike attempts during winter/spring
hunts and no more than 12 unsuccessful strike attempts during summer/fall hunts. Any
unsuccessful strike attempt on a gray whale that has already been struck will not count against
these limits. Training harpoon throws may be authorized between July 1 and October 31 in years of
summer/fall hunts and at any time during winter/spring hunts as well as the subsequent 7 months
of the calendar year in which those winter/spring hunts end. Each training harpoon throw will count
against the unsuccessful strike attempt limit during the calendar year in which the harpoon throw is
made.
(3) A hunt permit may authorize no more than three ENP gray whales to be struck in a winter/spring hunt
and no more than two ENP gray whales to be struck in a summer/fall hunt. Multiple strikes on the
same whale will count as a single strike. In a winter/spring hunt, a hunt permit may authorize no
more than one ENP gray whale to be struck within the 24-hour period commencing at the time of the
initial strike against the whale. The Regional Administrator may authorize the full number of ENP
gray whales to be struck in the initial hunt permit and will adjust strikes downward in subsequent
permits if necessary to ensure that no more than 16 PCFG whales are struck over the waiver period,
of which no more than 8 struck whales may be PCFG females.
(4) A hunt permit may authorize no more than three ENP gray whales to be struck and lost in any
calendar year.
(5) A hunt permit may authorize no more than three ENP gray whales to be landed in a winter/spring
hunt and no more than one ENP gray whale to be landed in a summer/fall hunt; the number of ENP
gray whales that the hunt permit may authorize to be landed in any calendar year will not exceed the
number agreed between the United States and the Russian Federation as the United States' share of
the catch limit established by the International Whaling Commission.
(d) Limits on PCFG whales.
(1) Thirty days prior to the beginning of a hunting season specified in paragraph (a) of this section, the
Regional Administrator will notify the Makah Indian Tribe in writing of the maximum number of PCFG
whales, including females, that may be struck during the upcoming hunting season. The limit will
take into account the abundance of PCFG whales relative to the conditions specified under §
216.113(b)(6)(v) and (vi) and the number of strikes made on PCFG whales as described under
paragraph (c)(3) of this section.
50 CFR 216.114(d)(1) (enhanced display)

page 118 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.114(d)(2)

(2) By November 1 of each year, the Regional Administrator will notify the Makah Indian Tribe in writing
of the proportion of gray whales in the hunt area that will be presumed to be PCFG whales and the
proportion of PCFG whales that will be presumed to be females for each month of the upcoming
calendar year. The presumed proportion of PCFG whales will be based on the best available
evidence for the months of December through May and will be 100 percent for the months of June
through November. The presumed proportion of female PCFG whales will be based on the best
available information for each month. These proportions will be used for purposes of accounting for
PCFG whales that are not otherwise identified or accounted for as provided under § 216.115(b).
(3) The Regional Administrator will notify the Makah Indian Tribe in writing when the Tribe has reached
the limit of PCFG whales that may be struck in any hunting season.
(4) Notwithstanding the limits specified in this section, no hunting will be authorized for an upcoming
season if the Regional Administrator determines, and notifies the Makah Indian Tribe pursuant to
paragraph (d)(1) of this section, that either of the following conditions applies:
(i)

The most recent PCFG population estimate, based on photo-identification surveys, is less than
192 whales or the associated minimum population estimate is less than 171 whales; or

(ii) The PCFG population estimate for the upcoming hunting season is projected to be less than
192 whales or the associated minimum population estimate is projected to be less than 171
whales.
(e) ENP gray whales. If the Regional Administrator determines and notifies the Makah Indian Tribe in writing
that the population of the ENP gray whale stock has fallen below OSP, hunting must cease until the
Regional Administrator notifies the Tribe in writing that the stock has obtained OSP.
(f) WNP gray whales. The hunt permit will provide that in the event the Regional Administrator determines a
WNP gray whale was struck during a hunt, the Regional Administrator will notify the Makah Indian Tribe in
writing and require that the Tribe cease hunting for the duration of the permit unless and until the Regional
Administrator determines that measures have been taken to ensure no additional WNP gray whales will
be struck during the duration of the permit. No further hunt permits will be issued unless and until the
Regional Administrator determines that measures have been taken to prevent additional WNP gray whale
strikes during the remainder of the waiver period.

§ 216.115 Accounting and identification of gray whales.
(a) Images and samples. NMFS hunt observers, Tribal hunt observers, and members of the Makah Indian
Tribe may collect still or motion pictures as needed to document hunting and training approaches, strikes
(successful and unsuccessful attempts), and landings. Persons designated by NMFS and by the Makah
Indian Tribe may also collect, store, transfer, and analyze specimen samples from struck gray whales.
Such designated personnel should make every reasonable attempt to collect genetic samples from struck
whales without compromising the safety of the hunt.
(b) Identification and accounting of gray whales —
(1) Winter/spring hunts. Based on the best available evidence, the Regional Administrator will determine
in writing whether a gray whale that is struck in a winter/spring hunt is a WNP gray whale or a PCFG
whale or neither, or cannot be identified due to a lack of photographs or genetic data useful for
making identifications. A whale affirmatively identified as a PCFG whale will be counted accordingly.
A whale that cannot be identified will be presumed to be a PCFG whale in accordance with the

50 CFR 216.115(b)(1) (enhanced display)

page 119 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.115(b)(2)

proportions specified in § 216.114(d)(2) and will be counted accordingly. If the sex of a whale that is
counted, in whole or in part, as a PCFG whale cannot be identified, the proportions specified in §
216.114(d)(2) will be applied.
(2) Summer/fall hunts. Based on available evidence, the Regional Administrator will determine in writing
whether a gray whale that is struck in a summer/fall hunt is a WNP gray whale or cannot be
identified due to a lack of photographs or genetic data useful for making identifications. A gray
whale that cannot be identified as a WNP gray whale will be counted as a PCFG whale. If the sex of a
whale that is counted as a PCFG whale cannot be identified, the proportions specified in §
216.114(d)(2) will be applied.
(3) Hunting and training approaches. Gray whales subjected to hunting or training approaches are
presumed to be PCFG whales in accordance with the proportions specified in § 216.114(d)(2).
(4) Unauthorized strikes. If a Tribal member strikes an ENP gray whale without authorization under this
subpart, the strike will be counted against the total number of strikes allowed under this subpart and
will be counted against the United States' share of any applicable catch limit established by the
International Whaling Commission.

§ 216.116 Use of edible and nonedible whale products.
(a) Gray whales landed under a hunt permit may be utilized as follows:
(1) Edible products of ENP gray whales. Enrolled members of the Makah Indian Tribe may possess,
consume, and transport edible whale products and may share and barter such products with other
enrolled members, both within and outside the Makah Indian Tribe's reservation boundaries, subject
to the following restrictions:
(i)

Within the Tribe's reservation boundaries, enrolled members of the Makah Indian Tribe may
share edible ENP gray whale products with any person.

(ii) Outside the Makah Indian Tribe's reservation boundaries, enrolled members of the Makah
Indian Tribe may share edible ENP gray whale products:
(A) At the Tribal member's residence with any person, provided the products are shared for
consumption at the Tribal member's residence; or
(B) With any person attending a Tribal or intertribal gathering sanctioned by the Makah Tribal
Council, so long as there is not more than 2 pounds of such edible product per person
attending the gathering.
(iii) Any person who is not an enrolled member of the Makah Indian Tribe may possess, consume,
and transport edible ENP gray whale products within the Makah Indian Tribe's reservation
boundaries so long as the products are shared by an enrolled member of the Makah Indian
Tribe. Outside the Tribe's reservation boundaries, any person who is not an enrolled member of
the Makah Indian Tribe may possess, consume, and transport edible gray whale products only
at a Tribal member's residence or at a Tribal or intertribal gathering sanctioned by the Makah
Tribal Council if such products are shared by an enrolled member of the Makah Indian Tribe and
the person consumes the products at the gathering.
(2) Nonedible products of ENP gray whales.

50 CFR 216.116(a)(2) (enhanced display)

page 120 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

(i)

50 CFR 216.116(a)(2)(i)

Enrolled members of the Makah Indian Tribe may possess nonedible whale products that have
not been fashioned into Makah Indian handicrafts and Makah Indian handicrafts that have not
been marked and certificated per paragraph (a)(2)(iii) of this section, may transport such
products, and may share and barter such products with other enrolled members both within
and outside the Makah Indian Tribe's reservation boundaries.

(ii) Enrolled members of the Makah Indian Tribe may share or barter Makah Indian handicrafts that
have not been marked and certificated per paragraph (a)(2)(iii) of this section with any person
within the Tribe's reservation boundaries.
(iii) Any person may possess, transport, share, barter, offer for sale, sell, or purchase a Makah
Indian handicraft in the United States, provided the handicraft is permanently marked with a
distinctive marking approved by the Makah Tribal Council, and is accompanied by a certificate
of authenticity issued by the Makah Tribal Council or its designee and entered in the Tribe's
official record of Makah Indian handicrafts. Such handicrafts may be delivered, carried,
transported, or shipped in interstate commerce.
(iv) Within the Makah Indian Tribe's reservation boundaries, any person who is not an enrolled
member of the Makah Indian Tribe may possess and transport Makah Indian handicrafts that
have not been marked and certificated per paragraph (a)(2)(iii) of this section, provided the
handicraft was shared by or bartered from an enrolled member. Within the Makah Indian Tribe's
reservation boundaries, persons not enrolled as a member of the Makah Indian Tribe may share
or barter such handicrafts only with enrolled members.
(b) The Makah Indian Tribe is responsible for managing all activities of any Makah Indian Tribal member
carried out under this section.

§ 216.117 Prohibited acts.
(a) It is unlawful for the Makah Indian Tribe or any enrolled member of the Makah Indian Tribe to:
(1) Take any gray whale except as authorized by a hunt permit issued under § 216.113(b) or by any other
provision of this part.
(2) Participate in a hunt while failing to carry onboard the vessel at all times a hunt permit issued by
NMFS and a Tribal whaling permit issued by the Makah Indian Tribe, or an electronic copy or
photocopy of these permits.
(3) Make a training approach or a training harpoon throw while failing to carry onboard the training
vessel at all times an electronic copy or photocopy of the hunt permit issued by NMFS and a training
logbook approved by the Makah Indian Tribe for recording training approaches and training harpoon
throws.
(4) Participate in a hunt as a whaling captain, rifleman, harpooner, Tribal hunt observer, or safety officer,
unless the individual's name is included in a Tribal certification report issued under §
216.118(a)(6)(i).
(5) Violate any provision of any hunt permit issued under § 216.113(b).
(6) Make an approach on a calf or an adult gray whale accompanying a calf after a member of the
whaling crew has identified the presence of a calf.
(7) Fail to remain at least 100 yards (91.5 m) away from a calf or an adult accompanying a calf after a
member of the whaling crew has identified the presence of a calf.
50 CFR 216.117(a)(7) (enhanced display)

page 121 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.117(a)(8)

(8) Hunt or make a training harpoon throw on a calf or an adult gray whale accompanying a calf.
(9) Hunt outside the geographic area identified in § 216.113(b)(5)(iii) unless in pursuit of a gray whale
that has already been struck within that area.
(10) Hunt, make a hunting or training approach, or make a training harpoon throw after reaching the limits
specified in the hunt permit per § 216.113(b)(5)(i) through (viii).
(11) Hunt if the limit on PCFG whales or PCFG females that may be struck is less than one as a result of
accounting per § 216.115(b)(1) through (3).
(12) Hunt after the Makah Indian Tribe has been notified in writing by the Regional Administrator under §
216.114(d)(3) that the limit of PCFG whales that may be struck has been reached or that the PCFG
abundance is below the limits specified in § 216.114(d)(4).
(13) Hunt after a gray whale has been landed and before the Makah Indian Tribe has received notification
from the Regional Administrator in accordance with § 216.115(b).
(14) Hunt after the Makah Tribe has been notified by the Regional Administrator under § 216.114(e) that
the ENP gray whale population has fallen below OSP.
(15) Sell, offer for sale, or purchase any gray whale products, except Makah Indian handicrafts that have
been marked and certificated per § 216.116(a)(2).
(16) Export any gray whale products.
(17) Barter edible gray whale products with any person not enrolled as a member of the Makah Indian
Tribe.
(18) Share edible gray whale products outside the Makah Indian Tribe's reservation boundaries with any
person not enrolled as a member of the Makah Indian Tribe, except at a Tribal member's residence or
with persons attending a Tribal or intertribal gathering sanctioned by the Makah Tribal Council, so
long as there is not more than 2 pounds of edible product per person attending the gathering per §
216.116(a)(1)(ii)(B).
(19) Share or barter nonedible gray whale products:
(i)

Outside the Makah Indian Tribe's reservation boundaries with any person not enrolled as a
Makah Indian Tribal member, except Makah Indian handicrafts that are permanently marked
and certificated per § 216.116(a)(2).

(ii) Within the Makah Indian Tribe's reservation boundaries with any person not enrolled as a Makah
Indian Tribal member except a product that has been fashioned into a Makah Indian handicraft
whether or not it has been marked and certificated per § 216.116(a)(2)(iii).
(20) Make a false statement in an application for a hunt permit or in a report required under this subpart.
(21) Transfer or assign a hunt permit issued under this subpart.
(22) Fail to submit reports required by this subpart.
(23) Deny persons designated by NMFS access to landed gray whales for the purpose of collecting
specimen samples.
(24) Fail to provide required permits and reports for inspection upon request by persons designated by
NMFS.
50 CFR 216.117(a)(24) (enhanced display)

page 122 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.117(a)(25)

(25) Allow anyone other than enrolled Makah Indian Tribal members to be part of a whaling crew or to
allow anyone other than such members or Tribal hunt observers to be in a training vessel engaged in
hunt training.
(26) Hunt, or engage in hunting approaches, training approaches, or training harpoon throws without
additional authorization to take WNP gray whales, if the Regional Administrator has notified the Tribe
that additional authorization is required for the take of WNP gray whales.
(b) It is unlawful for any person who is not an enrolled member of the Makah Indian Tribe to:
(1) Share barter, purchase, sell, export, or offer to share, barter, purchase, sell, or export edible gray
whale products.
(2) Possess, consume, or transport edible gray whale products except:
(i)

Within the Makah Indian Tribe's reservation boundaries, when such products have been shared
by an enrolled Makah Indian Tribal member;

(ii) At the residence of a Tribal member, whether or not the residence is within the Tribe's
reservation boundaries; and
(iii) At Tribal or intertribal gatherings sanctioned by the Makah Tribal Council, whether or not the
gathering is within the Tribe's reservation boundaries.
(3) Purchase, sell, or offer to purchase or sell nonedible gray whale products except Makah Indian
handicrafts that are marked and certificated per § 216.116(a)(2).
(4) Export any gray whale products.
(5) Outside the Makah Indian Tribe's reservation boundaries, possess, transport, share, or barter
nonedible gray whale products except Makah Indian handicrafts that are marked and certificated per
§ 216.116(a)(2)(iii).
(6) Within the Makah Indian Tribe's reservation boundaries, possess, transport, share, or barter any
nonedible gray whale product except as provided in § 216.116(a)(2)(iii) and (iv).

§ 216.118 Requirements for monitoring, reporting, and recordkeeping.
(a) In addition to the reporting provisions described in § 230.8 of this chapter, the Makah Indian Tribe will:
(1) Ensure a certified Tribal hunt observer accompanies each hunt. The Tribal hunt observer will record
in a hunting logbook the time, date, and location (latitude and longitude, accurate to at least the
nearest second) of each hunting approach of a gray whale, each attempt to strike a gray whale, and
each gray whale struck. For each gray whale struck, the Tribal hunt observer will record whether the
whale was landed. If not landed, the Tribal hunt observer will describe the circumstances associated
with the striking of the whale and estimate whether the animal suffered a wound that might be fatal.
For every gray whale approached by the whaling crew, the Tribal hunt observer must make every
reasonable attempt to collect digital photographs useful for photo-identification purposes.
(2) Ensure that each vessel involved in a training approach has onboard a training logbook for recording
the date, location, and number of gray whales approached and the number of training harpoon
throws. Each training approach and training harpoon throw must be reported to the Tribal hunt
observer within 24 hours.

50 CFR 216.118(a)(2) (enhanced display)

page 123 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.118(a)(3)

(3) Maintain hunting and training logbooks specified in paragraphs (a)(1) and (2) of this section and
allow persons designated by NMFS to inspect them upon request.
(4) Ensure that each whaling captain allows a NMFS hunt observer to accompany and observe any hunt.
(5) Maintain an official record of all articles of Makah Indian handicraft, including the following
information for each article certified by the Makah Tribal Council or its designee: the date of the
certification; the permanent distinctive mark identifying the article as a Makah Indian handicraft; a
brief description of the handicraft, including artist's full name, gray whale product(s) used, and
approximate size; and at least one digital photograph of the entire handicraft. A copy of the official
record of Makah Indian handicrafts must be provided to NMFS personnel, including NMFS
enforcement officers, upon request.
(6) Ensure that the following reports are filed electronically with the NMFS West Coast Region's office in
Seattle, Washington, by the indicated date:
(i)

Tribal certification report. Thirty days prior to the beginning of a hunting season, a report that
includes the names of all Tribal hunt observers and enrolled Makah Indian Tribal members who
have been certified to participate in a hunt as whaling captains, riflemen, harpooners, and
safety officers. The Tribe may provide additional names during the hunting season.

(ii) Incident report. An incident report must be submitted within 48 hours after striking a gray
whale. The report may address multiple gray whales so long as the Tribe submits the report
within 48 hours of the first gray whale being struck. An incident report must contain the
following information:
(A) Struck and lost gray whale(s): The whaling captain's name; the Tribal hunt observer's
name; the date, location (latitude and longitude, accurate to at least the nearest second),
time, and number of strikes and attempted strikes if any; the method(s) of strikes and
attempted strikes; an estimate of the whale's total length. The report will describe the
circumstances associated with the striking of the whale and estimate whether the animal
suffered a wound that might be fatal. The report will include all photographs taken by a
Tribal hunt observer of gray whales struck and lost by the whaling crew. The report may
also contain any other observations by the Makah Indian Tribe concerning the struck and
lost whale(s) or circumstances of the hunt.
(B) Struck and landed gray whale(s): The whaling captain's name; the Tribal hunt observer's
name; the date, location (latitude and longitude, accurate to at least the nearest second),
time, and number of strikes and attempted strikes if any; the method(s) of strikes and
attempted strikes; the whale's body length as measured from the point of the upper jaw to
the notch between the tail flukes; an estimate of the whale's maximum girth; the extreme
width of the tail flukes; the whale's sex and, if female, lactation status; the length and sex
of any fetus in the landed whale; photographs of the whale(s), including the entire dorsal
right side, the entire dorsal left side, the dorsal aspect of the fluke, and the ventral aspect
of the fluke. All such photographs must include a ruler to convey scale and a sign
specifying the Makah Indian Tribe's name, whaling captain's name, whale species, and
date. The report must also describe the time to death (measured from the time of the first
strike to the time of death as indicated by relaxation of the lower jaw, no flipper movement,
or sinking without active movement) and the disposition of all specimen samples

50 CFR 216.118(a)(6)(ii)(B) (enhanced display)

page 124 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.118(a)(6)(iii)

collected and whale products, including any whale products deemed unsuitable for use by
Makah Indian Tribal members. The report may also contain any other observations by the
Makah Indian Tribe concerning the landed whale or circumstances of the hunt.
(iii) Hunt report. Within 30 days after the end of each hunting season, a report that describes the
following information for each day of hunting:
(A) Struck and lost gray whale(s): The report must contain the information specified in
paragraph (a)(6)(ii)(A) of this section.
(B) Struck and landed gray whale(s): The report must contain the information specified in
paragraph (a)(6)(ii)(B) of this section.
(C) Hunting approaches and unsuccessful strike attempt(s): For each gray whale approached
or subjected to an unsuccessful strike attempt(s), the report must contain: The whaling
captain's name; the Tribal hunt observer's name; the date, location (latitude and longitude,
accurate to at least the nearest second), time, and number of approaches and
unsuccessful strike attempts; the method of attempted strikes; an estimate of the total
length of any whale subjected to an unsuccessful strike attempt; and all photographs
taken by a Tribal hunt observer of gray whales approached by the whaling crew. The report
may also contain any other observations by the Makah Indian Tribe concerning the
whale(s) approached or subjected to unsuccessful strike attempts or circumstances of
the hunt.
(iv) Annual approach report. By January 15 of each year, a report containing the dates, location, and
number of gray whales subjected to hunting approaches, training approaches, and training
harpoon throws during the previous calendar year. The report may also contain any other
observations by the Makah Indian Tribe concerning the approached whales or circumstances of
the approaches and training harpoon throws.
(v) Annual handicraft report. By April 1 of each year, a report that describes all Makah Indian
handicrafts certified by the Makah Tribal Council or its designee during the previous calendar
year. The report must contain the following information for each handicraft certified: The date
of the certification; the permanent distinctive mark identifying the article as a Makah Indian
handicraft; a brief description of the handicraft, including artist's full name, gray whale
product(s) used, and approximate size; and at least one digital photograph of the entire
handicraft.
(vi) Availability of reports. The hunt report, annual approach report, and annual handicraft report
collected pursuant to this section will be maintained and made available for public review in the
NMFS West Coast Region's office in Seattle, Washington.
(b) Upon receiving an incident report specified in paragraph (a)(6)(ii) of this section documenting that eight
gray whales have been struck, the Regional Administrator will evaluate:
(1) The photo-identification and notification requirements described in §§ 216.113(b)(6)(iv) and
216.115. The evaluation will address the status of gray whale photo-identification catalogs used to
manage gray whale hunts authorized under this subpart, the survey efforts employed to keep those
catalogs updated, the level of certainty associated with identifying cataloged WNP gray whales and
PCFG whales, the role of ancillary information such as genetic data during catalog review, and any
other elements deemed appropriate by the Regional Administrator. The evaluation will be made
available to the public no more than 120 days after receiving the subject incident report.
50 CFR 216.118(b)(1) (enhanced display)

page 125 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.118(b)(2)

(2) The humaneness of the authorized manner of hunting as specified in § 216.113(a)(1)(iii). To evaluate
humaneness, NMFS will convene a team composed of a veterinarian, a marine mammal biologist,
and all Tribal hunt observers and NMFS hunt observers who were witness to the strikes described in
the incident reports required by this section. The team's evaluation will address the effectiveness of
the hunting methods used by the Makah Indian Tribe, the availability and practicability of other such
methods, and the time to death of hunted whales, and any other matters deemed appropriate by the
Regional Administrator and the team. The team's evaluation will be made available to the public no
more than 120 days after receiving the subject incident report.
(c) The NMFS West Coast Region's Seattle office is located at 7600 Sand Point Way NE, Seattle, WA
98115-0070.

§ 216.119 Expiration and amendment.
(a) The 10-year waiver period begins the first day of the first season after issuance of the initial hunt permit.
The waiver and this subpart will expire 10 years after the effective date of the initial hunt permit specified
under § 216.113(b), unless extended.
(b) If the initial permit begins during a hunt season, resulting in only a partial season being authorized, the
Regional Administrator may authorize a partial season that is equivalent in duration to the difference
between the partial season in the first hunt year and the full season. This second partial season can only
be authorized in the final calendar year during the waiver period.
(c) This subpart may be periodically reviewed and modified as provided in 16 U.S.C. 1373(e).

Subparts K-X [Reserved]

50 CFR 216.119(c) (enhanced display)

page 126 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.119(c)

Figure 1 to Part 216—Northern Fur Seal Breeding Areas (Rookeries) and Hauling Grounds on St.
George Island, Alaska

50 CFR 216.119(c) (enhanced display)

page 127 of 128

50 CFR Part 216 (up to date as of 12/13/2024)
Regulations Governing the Taking and Importing of Marine Mammals

50 CFR 216.119(c)

[79 FR 65338, Nov. 4, 2014]

50 CFR 216.119(c) (enhanced display)

page 128 of 128