APPENDIX

1

Operational regulations for tuna fishermen from the Code of Federal Regulations. October 1990.

National Marine Fisheries Service/NOAA, Commerce § 216.21

Subpart C—General Exceptions

§ 216.21 Actions permitted by international treaty, convention, or agreement.

The Act 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 Act shall not apply to activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals signed at Washington on Febru-



The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement



Below are the first 10 and last 10 pages of uncorrected machine-read text (when available) of this chapter, followed by the top 30 algorithmically extracted key phrases from the chapter as a whole.
Intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text on the opening pages of each chapter. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

Do not use for reproduction, copying, pasting, or reading; exclusively for search engines.

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY APPENDIX 1 Operational regulations for tuna fishermen from the Code of Federal Regulations. October 1990. National Marine Fisheries Service/NOAA, Commerce § 216.21 Subpart C—General Exceptions § 216.21 Actions permitted by international treaty, convention, or agreement. The Act 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 Act shall not apply to activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals signed at Washington on Febru-

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY ary 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. § 216.22 Taking by State or local government officials. 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: Is accomplished in a humane manner; Is for the protection or welfare of such mammal or for the protection of the public health or welfare; and 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. 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: The animal involved; The circumstances requiring the taking; The method of taking; The name and official position of the State official or employee involved; 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 Such other information as the Secretary may require. § 216.23 Native exceptions. 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: By Alaskan Natives who reside in Alaska for subsistence, or For purposes of creating and selling authentic native articles of handicraft and clothing, and In each case, not accomplished in a wasteful manner. Restrictions. 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: 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 It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan Native; or It is an edible portion and it is sold in an Alaskan Native village or town. 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: 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

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY will be returned directly or through a registered agent to the Indian, Aleut or Eskimo; or It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo; or It has first been transformed into an authentic native article of handicraft or clothing; or It is an edible portion and sold (A) in an Alaskan Native village or town, or (B) to an Alaskan Native for his consumption. 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: The name and address of the applicant; A description of the applicant's procedures for receiving, storing, processing, and shipping materials; 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; Such other information as the Secretary may request; 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. 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. Notwithstanding the preceding provisions of this section, whenever, under the Act, the Secretary determines any species of stock of marine mammals to be depleted, he may prescribe regulations pursuant to section 103 of the Act 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. § 216.24 Taking and related acts incidental to commercial fishing operations. NOTE TO § 216.24: The provisions of 50 CFR part 229, rather than § 216.24, will govern the incidental taking of marine mammals in the course of commercial fishing operations by persons using vessels of the United States, other than vessels used in the eastern tropical Pacific yellowfin tuna purse seine fishery, and vessels which have valid fishing permits issued in accordance with section 204(b) of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1824(b)) for the period from November 23, 1988, through October 1, 1993. Other commercial fisheries remain subject to regulations under § 216.24. No marine mammals may be taken in the course of a commercial fishing operation unless: The taking constitutes an incidential catch as defined in § 216.3, a general permit and certificate(s) of inclusion have been obtained in accordance with these regulations and such taking is not in violation of such permit, certificate(s), and regulations. A vessel on a commercial fishing trip involving the utilization of purse seines to capture yellowfin tuna which is not operating under a category two general permit and certificates of inclusion, and which during any part of its fishing trip is in the Pacific Ocean area described in the General Permit

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY for gear Category 2 operations, must not carry more than two speedboats. Upon written request in advance of entering the General Permit area, the limitation in (a)(2) may be waived by the Regional Director of the Southwest Region for the purpose of allowing transit through the General Permit area. The waiver will provide in writing the terms and conditions under which the vessel must operate, including a requirement to report by radio to the Regional Director the vessel's date of exit from or subsequent entry to the permit area, in order to transit the area with more than two speedboats. General permits. General permits to allow the taking of marine mammals, except those for which taking is prohibited under the Endangered Species Act of 1973, in connection with commercial fishing operations will be issued to persons using fishing gear in any one of the following categories: Category 1: Towed or dragged gear. Commercial fishing operations utilizing towed or dragged gear such as bottom otter trawls, bottom pair trawls, multi-rig trawls, and dredging gear; Category 2: Encircling gear, pursue seining involving the inten tional taking of marine mammals. Commercial fishing operations utilizing purse seines to capture tuna by international encircling marine mammals. Only vessels that meet the fishing gear and equipment requirements contained in § 216.24(d)(2)(iv) of these regulations may be included in this category; Category 3: Encircling gear, pursue seining not involving the inter national taking of marine mammals. Commercial fishing operations utilizing pursue seining, which do not intentionally encircle marine mammals; Category 4: Stationary gear. Commercial fishing operations utilizing stationary gear such as traps, pots, weirs, and pound nets; Category 5: Other gear. Commerical fishing operations utilizing trolling, gill nets, hook and line gear, and any gear not classified under paragraph (b)(1)(i), (b)(1)(ii), (b)(1)(iii), (b)(1)(iv), or (b)(1)(vi) of this section; and Category 6: Commercial passenger fishing vessel operation. Commercial fishing operations from a commercial passenger fishing vessel for the purpose of active sportfishing as defined in § 216.3. Permits shall be issued as general permits to a class of fishermen using one of the general categories of gear set out above. Any member of such class may apply for a general permit on behalf of any members of the class. Subsequent to the granting of general permit, vessel owners, managing owners, or operators (as required) may make application to be included under the terms of a general permit by obtaining a certificate of inclusion. Applications for a general, permit shall contain: Name, address, and telephone number of the applicant. If the applicant is an organization or corporate entity, a copy of the corporate or organizational charter which sets forth the basis for application on behalf of a group of class of commercial fishermen must be included; A description of permit for which application is being made; A description of the fishing operations by which marine mammals are taken; and a statement explaining why the applicant cannot avoid taking marine mammals incidentally to commercial fishing operations; The date when the general permit is requested to become effective; A list of the fish sought by persons requesting certificates under the general permit and the general areas of operations of their vessels. A statement identifying the marine mammals and numbers of marine mammals which are expected to be taken under the general permit; A statement by the applicant demonstrating that the requested taking of marine mammal species or stocks during commercial fishing operations is consistent with the purposes of the Act, and the applicable regulations established under section 103 of the Act. A description of the procedures and techniques that will be utilized in

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY order that takings under the permit will be consistent with the purposes and policies of the Act and these regulations; and A certification, signed by the applicant, in the following language: I 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 a general permit under the Marine Mammal Protection Act of 1972 and regulations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001, or the penalties provided under the Marine Mammal Protection Act of 1972. The original and two copies of the application for general permit must be submitted to the Assistant Administrator. Applications should be received not less than 180 days prior to the date upon which the permit is to become effective. Assistance may be obtained by writing the Assistant Administrator or by calling the Office of Marine Mammals and Endangered Species, telephone number 202–634– 7461. A general permit shall be valid for the time period indicated on the face of the permit. General permits may contain terms and conditions prescribed in accordance with section 104(b)(2) of the Act, 16 U.S.C. 1374(b)(2). General permits may be suspended, revoked, modified, or denied. Procedures governing permit sanctions or denials for reasons relating to enforcement are found at subpart D of 15 CFR part 904. The Assistant Administrator shall determine the adequacy and completeness of an application, and if found to be adequate and complete will promptly publish a notice of receipt of such application in the F EDERAL REGISTER. Interested parties will have thirty days from the date of publication in which to submit written comments with respect to the granting of such permit. If within thirty days after the date of publication of the FEDERAL REGISTER notice concerning receipt of an application for a general permit, any interested party or parties request a hearing on the application, the Assistant Administrator may within sixty days following the date of publication of the FEDERAL REGISTER notice afford such party or parties an opportunity for such a hearing. Any hearing held in connection with an application for a general permit shall be conducted in the same manner as hearings convened in connection with a scientific research or a public display permit application under § 216.33. There is no fee for filing an application for a general permit. Certificates of inclusion— Vessel certificates of inclusion. The owner or managing owner of a vessel that participates in commercial fishing operations for which a general permit is required under this subpart shall be the holder of a valid vessel certificate of inclusion under that general permit. Such certificates shall not be transferable and shall be renewed annually. Provided advance written notice is given, a vessel certificate holder may surrender his certificate to the Regional Office from which the certificate was issued. However, once surrendered the certificate shall not be returned nor shall a new certificate be issued before the end of the calendar year. This provision shall not apply when a change of vessel ownership occurs. Operator's certificate of inclu sion. The person in charge of and actually controlling fishing operations (after this referred to as the operator) on a vessel engaged in commercial fishing operations for which a Category 2 or Category 6 general permit is required under this subpart, must be the holder of a valid operator 's certificate of inclusion. These certificates are not transferable and will be valid only on a vessel having a valid vessel certificate of inclusion for the same category. In order to receive a certification of inclusion, the operator must have satisfactorily completed required training. An operator's certificate of inclusion must be renewed annually. A vessel certificate issued pursuant to paragraph (c)(1) of this section shall be aboard the vessel while it is engaged in fishing operations and the operator's certificate issued pursuant to paragraph (c)(2) of this section

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY shall be in the possession of the operator to whom it was issued. Certificates shall be shown upon request to an enforcement agent or other designated agent of the National Marine Fisheries Service. However, vessels and operators at sea on a fishing trip on the expiration date of their certificate of inclusion, to whom or to which a certificate of inclusion for the next year has been issued, may take marine mammals under the terms of the new certificate. The vessel owners or operators are obligated to obtain physically or to place the new certificate aboard, as appropriate, when the vessel next returns to port. Application(s) for certificates of inclusion under paragraph (c)(1) of this section should be addressed as follows: Category 1, 3, 4, 5, and 6 applications: Owners or managing owners of vessels registered in Colorado, Idaho, Montana, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming, should make application to the Regional Director, Northwest Region, National Marine Fisheries Service, 1700 Westlake Avenue, Seattle, Washington 98102. Owners or managing owners of vessels registered in Arizona, California, Hawaii, Nevada, and the territories of American Samoa, Guam, and the Trust Territory of the Pacific Islands should make application to the Regional Director, Southwest Region, National Marine Fisheries Service, 300 South Ferry Street, Terminal Island, California 90731. Owners or managing owners of vessels registered in Alaska should make application to the Regional Director, Alaska Region, National Marine Fisheries Service, P.O. Box 1668, Juneau, Alaska 99802. Owners or managing owners of vessels registered in Connecticut, Delaware, District of Columbia, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Vermont, Virginia, West Virginia, and Wisconsin should make application to the Regional Director, Northeast Region, National Marine Fisheries Service, 14 Elm Street, Federal Building, Gloucester, Massachusetts 01930. Owners or managing owners of vessels registered in Alabama, Arkansas, Florida, Georgia, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Mexico, North Carolina, Oklahoma, Puerto Rico. South Carolina, Tennessee, Texas, and Virgin Islands, should make application to the Regional Director, National Marine Fisheries Service, Southeast Region, 9450 Gandy Boulevard North, Duval Building, St. Petersburg, Florida 33702. Category 2 applications: Owners or managing owners of purse seine vessels in this category shall make application to the field office, National Marine Fisheries Service, Southwest Region, 1520 State Street, suite 200, San Diego, California 92101. Applications for vessel certificates of inclusion under paragraph (c)(1) of this section shall contain: The name of the vessel which is to appear on the certificate(s) of inclusion; The category of the general permit under which the applicant wishes to be included; The species of fish sought and general area of operations; The identity of State and local commercial fishing licenses, if applicable, under which vessel operations are conducted, and dates of expiration; The name of the operator and date of training, if applicable; and The name and signature of the applicant, whether owner or managing owner, address, and if applicable, the organization acting on behalf of the vessel. Fees. Applications for certificates of inclusion under paragraph (c)(1) of this section shall contain a payment for each vessel named in the application in accordance with the following schedule: Categories 1: Towed or dragged gear; 3: Encircling gear, purse seining not involving the intentional taking of marine mammals; 4: Stationary gear; 5: Other gear; and 6: Commercial passenger fishing vessel— $10.00.

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY Category 2: Encircling gear, purse seining involving the intentional taking of marine mammals—$200.00. Except as provided herein, vessel owners or managing owners desiring a vessel certificate of inclusion under more than one category of the general permit will not be required to pay a full fee for each certificate. After the initial fee for a certificate is paid for each vessel, additional certificates will be issued for a fee of $.50 (fifty cents) each. However, every application for a vessel certificate under Category 2 shall contain the full fee. Notwithstanding the provisions of paragraph (c)(6)(i) of this section, an applicant whose income is below Federal poverty guidelines may, upon showing in his application that his income is below such guidelines, be issued a certificate under the following schedule of fee payment: Categories, 1: Towed or dragged gear; 3: Encircling gear, purse seining not involving the intentional taking of marine mammals; 4: Stationary gear; 5: Other gear; and 6: Commercial passenger fishing vessels —$1.00. Category 2: Encircling gear, purse seining involving the intentional taking of marine mammals—$20.00. A fee is not required for an operator's certificate of inclusion. The Assistant Administrator may change the amount of these required fees at any time he determines a different payment to be reasonable, and said change shall be accomplished by publication in the FEDERAL REGISTER of the new fee schedule. The Regional Office receiving applications for certificates of inclusion from vessel owners, managing owners, or operators shall determine the adequacy and completeness of such applications, and upon its determination that such applications are adequate and complete, it shall approve such applications and issue the certificate(s). Failure to comply with provisions of the general permit, certificate, or these regulations may lead to suspension, revocation, modification, or denial of a certificate of inclusion. It may also subject the certificate holder, vessel, vessel owner, operator, or master to the penalties provided under the Act. Procedures governing permit sanctions and denials are found at subpart D of 15 CFR part 904. By using an operator or vessel certificate of inclusion under the Category 2 general permit, the certificate holder authorizes the release to the National Marine Fisheries Service of all data collected by observers aboard purse seine vessels during fishing trips under the Inter-American Tropical Tuna Commission observer program or any other international observer program in which the United States may participate. The certificate holder must furnish the international observer program all release forms required to provide the observer data to the National Marine Fisheries Service. Data obtained under such releases will be used for the same purposes as data collected directly by observers placed by the National Marine Fisheries Service and will be subject to the same standards of confidentiality. Terms and conditions of certificates under general permits shall include, but are not limited to the following: Towed or dragged gear. A certificate holder may take marine mammals so long as such taking is an incidental occurrence in the course of normal commercial fishing operations. Marine mammals taken incidental to commercial fishing operations shall be immediately returned to the environment where captured without further injury. A certificate holder may take such steps as are necessary to protect his catch, gear, or person from depredation, damage, or personal injury without inflicting death or injury to any marine mammal. Only after all means permitted by paragraph (d)(1)(ii) of this section have been taken to deter a marine mammal from depredating the catch, damaging the gear, or causing personal injury, may the certificate holder injure or kill the animal causing the depredation or immediate personal injury; however, in no event shall a certificate holder kill or injure an Atlantic bottlenosed dolphin, Tursiops truncatus, under the provisions of this paragraph. A certificate holder shall not injure or kill any animal permitted

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY to be killed or injured under this paragraph unless the infliction of such damage is substantial and immediate and is actually being caused at the time such steps are taken. In all cases, the burden is on the certificate holder to fully report and demonstrate that the animal was causing substantial and immediate damage or about to cause personal injury and that all possible steps to protect against such damage or injury as permitted by paragraph (d)(1)(ii) of this section were taken and that such attempts failed. Marine mammals taken in the course of commercial fishing operations shall be subject to the provisions of § 216.3 with respect to “Incidental catch,” and may not be retained except where a specific permit has been obtained authorizing the retention. All certificate holders shall maintain logs of incidental take of marine mammals in such form as prescribed by the Assistant Administrator. All deaths or injuries to marine mammals occurring in the course of commercial fishing operations under the conditions of a general permit shall be immediately recorded in the log and reported in writing to the Regional Director to whom the certificate application was made, or to an enforcement agent or other designated agent of the National Marine Fisheries Service, at the earliest opportunity, but no later than five days after such occurrence, except that if a vessel at sea returns to port later than five days after such occurrence then it shall be reported within 48 hours after arrival in any port. Reports must include: The location, time, and date of the death or injury; The identity and number of marine mammals killed or injured; and A description of the circumstances which led up to and caused the death or injury. Encircling gear, purse seining involving the intentional taking of marine mammals— Quotas: A certificated vessel may take marine mammals so long as the taking is an incidental occurrence in the course of normal commercial tuna purse seine fishing operations, and the fishing operations are under the immediate direction of a person who is the holder of a valid operator's certificate of inclusion; except that a vessel shall not encircle either: Pure schools of any species of dolphin except the offshore spotted dolphin (Stenella attenuata) stock, the striped dolphin (Stenella coeruleoalba) species, and the common dolphin (Dephinus delphis) species; or Any other species or stock or marine mammals that does not have an allowable take as listed below or whose allowable take has been exceeded. The numbers of marine mammals that may be taken during each calendar year by U.S. vessels in the course of commercial fishing operations will be limited to: Quotas for each calendar year Take Encirclement Mortality 1 Species/stock Management unit Spotted dolphin. (northern offshore) 2. 16,570,000 10,338,000 20,500 Do ..... (southern offshore). 4,605,000 2,873,000 5,697 Do ..... (coastal) ......... 202,000 126,000 3 250 Spinner dolphin. (eastern) 2,222,000 1,386,000 3 2,750 Do ..... (northern whitebelly). 1,205,000 699,000 5,321 Do .... (southern whitebelly)4. 568,000 329,000 2,506 Common dolphin. (northern tropical) 5. 723,000 450,000 1,890 Do ..... (central tropical). 2,619,000 845,000 8,112 Do ..... (southern tropical). 1,306,000 421,000 4,045 Striped dolphin. (northern tropical). 28,000 21,000 429 Do ..... (central tropical). 118,000 89,000 1,822 Do ............. (southern tropical). 265,000 199,000 4,095 1 The U.S. allowable mortality in any one year may not exceed 20,500. 2 Fifty percent of replacement yield for the northern offshore spotted dolphin is 42,898; however, the maximum allowable mortality in any year is 20,500. 3 Mortality level established by Pub. L. 98–364; not subject to flexible mortality schedule published in 46 FR 42068– 42069 (August 19, 1981). 4 Includes allowance for mixed species take. 5 Includes Baja neritic dolphin stock. The incidental mortality of marine mammals permitted under the general permit for each category will be monitored according to the methodology published in the FEDERAL REGISTER. The Assistant Administrator

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY shall determine on the basis of the evidence available to him the date upon which the allowable quotas will be reached or exceeded. Notice of the As sistant Administrator's determination shall be published in the FEDERAL REGISTER not less than seven days prior to the effective date. Except for the coastal spotted dolphin stock and the eastern spinner dolphin stock, if at the time the net skiff attached to the net is released from the vessel at the start of a set, and species or stocks that are prohibited from being taken are not reasonably observable, the fact that individuals of that species or stock are subsequently taken will not be cause for issuance of a notice of violation provided that all procedures required by the applicable regulations have been followed. The general permit is valid until surrendered by the permit holder or suspended or terminated by the Assistant Administrator provided the permittee and certificate holders under this part continue to use the best marine mammal safety techniques and equipment that are economically and technologically practicable. The Assistant Administrator may, upon receipt of new information which in his opinion is sufficient to require modification of the general permit or regulations, propose to modify such after consultation with the Marine Mammal Commission. These modifications must be consistent with and necessary to carry out the purposes of the Act. Any modifications proposed by the Assistant Administrator involving changes in the quotas will include the statements required by section 103(d) of the Act. Modifications will be proposed in the FEDERAL REGISTER and a public comment period will be allowed. At the request of any interested person within 15 days after publication of the proposed modification in the FEDERAL REGISTER, the Assistant Administrator may hold a public hearing to receive and evaluate evidence in those circumstances where he has determined it to be consistent with and necessary to carry out the purposes of the Act. Such request may be for a formal hearing on the record before an Administrative Law Judge. Within 10 days after receipt of the request for a public hearing, the Assistant Administrator will provide the requesting party or parties with his decision. If a request is denied, the Assistant Administrator will state the reasons for the denial. Within 10 days after receipt of a decision denying a request for a formal hearing, the requesting person may file a written notice of appeal with the Administrator. Based upon the evidence presented in the notice, the Administrator will render a decision within 20 days from receipt of the notice. General conditions: Marine mammals incidentally taken must be immediately returned to the environment where captured without further injury. The operators of purse seine vessels must take every precaution to refrain from causing or permitting incidental mortality or serious injury of marine mammals. Live marine mammals must not be brailed or hoisted onto the deck during ortza retrieval. Operators may take such steps as are necessary to protect their gear or person from damage or threat of personal injury. However, all marine mammals taken in the course of commercial fishing operations shall be subject to the definition of “incidental catch” in § 216.3 of this part and may not be retained except where a specific permit has been obtained authorizing the retention. The vessel certificate holder shall notify the field office, National Marine Fisheries Service, Southwest Region, 1520 State Street, suite 200, San Diego, California 92101, telephone 619–557–6540, of any change of vessel operator within at least 48 hours prior to departing on the next scheduled trip. Reporting requirements: In accordance with § 216.24(f) of these regulations, the following specific reporting procedures shall be required: The vessel certificate holder of each certificated vessel, who has been notified via certified letter from the National Marine Fisheries Service that his vessel is required to carry an observer, shall notify the field office, Southwest Region, National Marine Fisheries Service, San Diego, California, telephone 714–293–6540 at least

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY five (5) days in advance of the vessel's departure on a fishing voyage to allow for observer placement. After a fishing voyage is initiated, the vessel is obligated to carry an observer until the vessel returns to port and one of the following conditions is met: Unloads more than 400 tons of any species of tuna; or (2) unloads any amount of any species of tuna equivalent to one half of the vessel's carrying capacity; or (3) unloads its tuna catch after 40 days or more at sea from the date of departure. Further, the Regional Director, Southwest Region, may consider special circumstances for exemptions to this definition, provided written requests clearly describing the circumstances are received prior to the termination or the initiation of a fishing voyage. A response to the written request will be made by the Regional Director within five (5) days after receipt of the request. A vessel whose vessel certificate holder has failed to comply with the provisions of this section may not engage in fishing operations for which a general permit is required. Masters of all certificated vessels carrying National Marine Fisheries Service observers shall allow observers to report, in coded form, information by radio concerning the accumulated take of marine mammals and other observer collected data at such times as specified by the Regional Director, Southwest Region. Individual vessel names and coded information reported by radio by the National Marine Fisheries Service observers shall remain confidential unless their release is authorized in writing by the operator of the vessel. The Regional Director, Southwest Region, will provide to the public, periodic quota status reports summarizing the estimated incidental porpoise mortality by U.S. vessels of individual species and stock. A vessel having a vessel certificate issued under paragraph (c)(1) may not engage in fishing operations for which a general permit is required unless it is equipped with a porpoise safety panel in its purse seine, and has and uses the other required gear, equipment, and procedures. Class I and II Vessels: For Class I purse seiners (400 short tons carrying capacity or less) and for Class II purse seiners (greater than 400 short tons carrying capacity, built before 1961), the porpoise safety panel must be a minimum of 100 fathoms in length (as measured before installation), except that the minimum length of the panel in nets deeper than 10 strips must be determined at a ratio of 10 fathoms in length for each strip that the net is deep. It must be installed so as to protect the perimeter of the backdown area. The perimeter of the backdown area is the length of the corkline which 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. The porpoise safety panel must consist of small mesh webbing not to exceed 1 1/4 ″ stretch mesh, extending from the corkline downward to a minimum depth equivalent to one strip of 100 meshes of 4 1/4 ″ 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. Class III Vessels: For Class III purse seiners (greater than 400 short tons carrying capacity, built after 1960), the porpoise 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 which 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 porpoise safety panel must consist of small mesh webbing not to exceed 1 1/4 ″ stretch mesh extending downward from the corkline and, if present, the base of the porpoise apron to a minimum depth equivalent to two strips of 100 meshes of 4 1/4 ″ stretch mesh webbing. In addition, at least a 20-fathom length of

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY corkline must be free from bunchlines at the apex of the backdown channel. Porpoise safety panel markers: Each end of the porpoise safety panel and porpoise apron shall be identified with an easily distinguishable marker. Porpoise safety panel hand holds: Throughout the length of the corkline under which the porpoise safety panel and porpoise apron are located, hand hold openings are to be secured so that the insertion of a 1 3/8 ″ diameter cylindrical-shaped object meets resistance. Porpoise safety panel corkline hangings: Throughout the length of the corkline under which the porpoise safety panel and porpoise apron are located, corkline hangings shall be inspected by the vessel operator following each trip. Hangings found to have loosened to the extent that a cylindrical object with a 1 3/8 ″ diameter will not meet resistance when inserted between the cork and corkline hangings, must be tightened so that a cylindrical object with a 1 3/8 ″ diameter cannot be inserted. Speedboats: Certificated vessels engaged in fishing operations involving setting on marine mammals shall carry a minimum of two speedboats in operating condition. All speedboats carried aboard purse seine vessels and in operating condition shall be rigged with towing bridles and towlines. Speedboat hoisting bridles shall not be substituted for towing bridles. Raft: A raft suitable to be used as a porpoise observation-and-rescue platform shall be carried on all certificated vessels. Facemask and snorkel, or view box: At least two facemasks and snorkels, or viewboxes, must be carried on all certificated vessels. Lights: All certificated vessels shall be equipped by July 1, 1986, with lights capable of producing a minimum of 140,000 lumens of output for use in darkness to ensure sufficient light to observe that procedures for porpoise release are carried out and to monitor incidental porpoise mortality. Vessel inspection: Annual: At least once during each calendar year, purse seine nets and other gear and equipment required by these regulations shall be made available for inspection by an authorized National Marine Fisheries Service Inspector as specified by the Regional Director, Southwest Region. Reinspection: Purse seine nets and other gear and equipment required by these regulations shall be made available for reinspection by an authorized National Marine Fisheries Service Inspector as specified by the Regional Director, Southwest Region. The vessel certificate holder shall notify the Fleet Assistance Section, , National Marine Fisheries Service, Southwest Region, 1520 State Street, suite 200, San Diego, California 92101, telephone 619–557–6540, of any net modification at least five (5) days prior to departure of the vessel on its next scheduled trip in order to determine whether a reinspection or trial set would be required. Upon failure to pass an inspection or reinspection, a vessel having a vessel certificate of inclusion issued under paragraph (c)(1) may not engage in fishing operations for which a general permit is required until the deficiencies in gear or equipment are corrected as required by an authorized National Marine Fisheries Service inspector. Operator training requirements. All operators shall maintain proficiency sufficient to perform the procedures required herein, and must attend and satisfactorily complete a formal training session conducted under the auspices of the National Marine Fisheries Service in order to obtain their certificate of inclusion. At the training session an attendee shall be instructed concerning the provisions of the Marine Mammal Protection Act of 1972, the regulations promulgated pursuant to the Act, and the fishing gear and techniques which are required or will contribute to reducing serious injury and mortality of porpoise 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 certificate of inclusion will not be required to attend additional formal training sessions unless there are substantial changes in the Act, the regulations, or the required fishing gear and

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY certificate holder kill or injure an Atlantic bottlenosed dolphin, Tursiops truncatus, under the provisions of this paragraph. A certificate holder shall not injure or kill any animal permitted to be killed or injured under this paragraph unless the infliction of such damage is substantial and immediate and is actually being caused at the time such steps are taken. In all cases, the burden is on the certificate holder to report fully and demonstrate that the animal was causing substantial and immediate damage or about to cause personal injury and that all possible steps to protect against such damage or injury as permitted by paragraph (d)(5)(ii) of this section were taken and that such attempts failed. Marine mammals taken in the course of commercial fishing operations shall be subject to the provisions of § 216.3 with respect to “Incidental catch,” and may not be retained except where a specific permit has been obtained authorizing the retention. All certificate holders shall maintain logs of incidental take of marine mammals in such form as prescribed by the Assistant Administrator. All deaths or injuries to marine mammals occurring in the course of commercial fishing operations under the conditions of a general permit shall be immediately recorded in the log and reported in writing to the Regional Director, National Marine Fisheries Service, where a certificate application was made, or to an enforcement agent, or other designated agent of the National Marine Fisheries Service, at the earliest opportunity but no later than five days after such occurrence, except that if a vessel at sea returns to port later than five days after such occurrence, then it shall be reported within forty-eight hours after arrival in port. Reports must include: The location, time, and date of the death or injury; The identity and number of marine mammals killed or injured; and A description of the circumstances which led up to and caused the death or injury. [Reserved] The number of Dall's porpoise (Phocoenoides dalli) killed or injured by Japanese vessels operating in the U.S. EEZ is limited to an aggregate of 789 in the Bering Sea and 5250 in the North Pacific Ocean over the period 1987 to 1989, of which no more than 448 may be taken from the Bering Sea and no more than 2494 may be taken from the North Pacific Ocean in any single calendar year. The incidental take levels authorized by this subpart are reduced proportionately in the event that the Soviet Union reduces salmon quotas for 1988 or 1989 by more than 10 percent from the 1987 quota. Any permit issued under this part must indicate the measures by which the permit holder must comply with the conditions attached to the permit, and the reporting requirements of paragraph (d)(5)(v) of this section. Any permit issued under this part may allow retention of marine mammals for scientific purposes and will not require a separate permit under paragraph (d)(5)(iv) of this section. Commercial passenger fishing vessels (CPFV). A certificate holder aboard the vessel may take marine mammals so long as the taking is limited to harassment and is an incidental occurrence in the course of the active sportfishing subject to the following restrictions (paragraphs (d)(6) (ii) through (vi)). Takings are prohibited within 500 yards of a pinniped rookery or haul-out site. A certificate holder aboard the CPFV must use only those non-lethal, non-injurious methods not including capture as approved in advance by the Assistant Administrator for Fisheries through publication in the FEDERAL REGISTER and stipulated in the General Permit for taking marine mammals. Takings are allowed only while engaged in active sportfishing to prevent imminent marine mammal approaches to the vessel or to protect a passenger's catch or gear from depredation or damage, without inflicting death or injury to any marine mammal. All operators must ensure the safe use of the approved methods for preventing marine mammal sportfish

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY ing interaction and must satisfactorily complete such training as may be required by the Assistant Administrator for Fisheries. All certificate holders must maintain records of incidental take of marine mammals in such form as prescribed by the Assistant Administrator for Fisheries. All incidents involving harassment of marine mammals must be immediately recorded and reported in writing to the Regional Director to whom the certificate application was made, or to an enforcement agent or other designated agent of the National Marine Fisheries Service, at the earliest opportunity, but no later than five days after such occurrence. At a minimum, reports must include: The time, date, and location of the taking; The type of harassment device used, and the number used at each occurrence; The number and species of affected marine mammals; and A description of any behavioral changes noted that may be due to using the harassment device. Importation. 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 in excess of what is specified in subsection (e)(5) in the case of fishing for yellowfin tuna. The following fish and categories of fish, which the Assistant Administrator has determined may be involved with commercial fishing operations which cause the death or injury of marine mammals, are subject to the requirements of this section: Yellowfin tuna. The following U.S. Harmonized Tariff Schedule Item Numbers identify the categories of tuna and tuna products under which yellowfin tuna is imported into the United States and which are subject to the restrictions of paragraphs (e)(3) and (e)(5) of this section: Fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0304: 0302.32.00.00.7 Yellowfin tunas. Fish, frozen, excluding fish fillets and other fish meat of heading 0304: 0303.42.00 Yellowfin tunas. 0303.42.00.20 Whole fish. 0303.42.00.40.6 Heads-on. 0303.42.00.40.60.1 Other. Prepared fish: Fish whole or in pieces, but not minced: Tuna, skipjack and Atlantic bonito: 1604.14.10.00.0 Tunas and skipjack; in airtight containers; in oil, (except cans marked as other than yellowfin tuna in a manner approved in advance by the National Marine Fisheries Service Southwest Regional Director). 1604.14.20.40.0 Tunas and skipjack in airtight containers; not in oil: • • • (except cans marked as other than yellowfin tuna in a manner approved in advance by the National Marine Fisheries Service Southwest Regional Director). 1604.14.30.40.8 Tunas and skipjack in airtight containers; other; (except cans marked as other than yellowfin tuna in a manner approved in advance by the National Marine Fisheries Service Southwest Regional Director). 1604.14.40.00.4 Tunas and skipjack; not in airtight containers; in bulk or in immediate containers weighing with their contents over 6.8 kg each, not in oil. 1604.14.50.00.1 Tunas and skipjack; not in airtight containers; other. Salmon and Halibut. The following U.S. Harmonized Tariff Schedule Item Numbers identify the categories of salmon and halibut products which are imported into the United States and are subject to the restrictions of paragraph (e)(4) of this section: Fish, fresh or chilled, excluding fish fillets and other fish meat of heading 0302: 0302.12.00 Pacific salmon, Atlantic salmon, and Danube salmon. 0302.21.00.00.0 Halibut and Greenland turbot. Fish, frozen, excluding fish fillets and other fish meat of heading 0303: 0303.10.00 Pacific salmon. 0303.31.00.00.00.7 Halibut and Greenland turbot. Fish fillets and other fish meat, fresh, chilled or frozen: 0304.20.20.22.9 Frozen fillets; Halibut. 0304.20.60.50.5 Other; Halibut.

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY Fish, dried, salted or in brine; smoked fish, whether or not cooked before or during the smoking process: 0305.41.00.00.3 Smoked fish, including fillets: Salmon. 0305.69.40.00.2 Fish salted but not dried or smoked and fish in brine: Salmon. Prepared or preserved fish; fish, whole or in pieces, but not minced: 1604.11 Salmon. Yellowfin tuna. All shipments of tuna and tuna products listed in paragraph (e)(2)(i) of this section, from any nation, may be imported into the United States only if: accompanied by a separate Yellowfin Tuna Certificate of Origin (Standard Form 370–1); and in the case of a harvesting nation, the finding allowing importation is made as required by paragraph (e)(5)(i) of this section or, in the case of an intermediary nation, an embargo has not been imposed under paragraph (e)(5)(ix) of this section. Shipments of tuna and tuna products from nations which are both harvesting and intermediary nations must satisfy the provisions which apply to both categories of nations in order to be imported into the United States. The Yellowfin Tuna Certificate of Origin must include the following information: Exporter (Name and Address); Consignee (Name and Address); Identity and quantity of the tuna to be imported, listed by U.S. tariff schedule number; Areas of harvest (ETP, western and central Pacific Ocean, Atlantic Ocean, Indian Ocean); Name of vessel(s) that caught the tuna, country under whose laws the vessel operated, and the date(s) of fishing trip of which the tuna was caught; Other documentation as may be required by the Assistant Administrator, subsequent to granting a finding in paragraph (e)(5) of this section; A declaration to be signed by either a responsible government official from the harvesting nation, the vessel master, the vessel owner' s representative, or a representative of the cannery which processed the fish which states: “I certify that the above information is complete, true and correct to the best of my knowledge and belief.” Salmon and Halibut. All shipments of fish and fish products listed in paragraph (e)(2)(ii) of this section, from any nation, may not be imported into the United States unless the following conditions are met: The shipment is accompanied by a commercial invoice and/or a bill of lading indicating the following: Nation of registry of the fishing vessel(s) involved; Exporter (name and address); Consignee (name and address); Identity and quantity of the fish or fish products to be imported; and The shipment is accompanied by a statement by a responsible official of the harvesting nation or the master of the vessel which caught the fish that such fish were not caught in a manner prohibited for U.S. fishermen by these regulations. The statement will identify the species, quantity, and exporter of the fish to which the statement refers, and be submitted at the time of importation; or A responsible official of the harvesting nation may certify to the Assistant Administrator that all of its flag vessels are fishing in conformance with these regulations or that the fishing technology practiced by the harvesting nation with respect to the species of fish presented for importation into the United States does not result in deaths to marine mammals in excess of that which results from U.S. commercial fishing operations as prescribed by these regulations. Upon receipt of a statement of conformance, the Assistant administrator may then making a finding, and publish such finding in the FEDERAL REGISTER, that fish imports listed in paragraph (e)(2)(ii) of this section from the nation were not caught with commercial fishing technology which results in the incidental kill of marine mammals in excess of U.S. standards. Yellowfin tuna. Any tuna or tuna products in the classifications listed in paragraph (e)(2)(i) of this section, from harvesting nations whose vessels of greater than 400 short tons carrying capacity operate in the ETP tuna purse seine fishery as determined by the Assistant Administrator, may

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY not be imported into the United States unless the Assistant Administrator makes an affirmative finding and publishes the finding in the FEDERAL REGISTER that: The government of the harvesting nation has adopted a regulatory program governing the incidental taking of marine mammals in the course of such harvesting that is comparable to the regulatory program of the United States; and The average rate of incidental mortality by the vessels of the harvesting nation is comparable to the average rate of incidental mortality of marine mammals by U.S. vessels in the course of such harvesting as specified in paragraph (e)(5)(v)(E) and (e)(5)(v)(F) of this section. A harvesting nation which desires an initial finding under these regulations that will allow it to import into the United States those products listed in paragraph (e)(2)(i) of this section must provide the Assistant Administrator with the following information: A detailed description of the nation's regulatory and enforcement program governing incidental taking of marine mammals in the purse seine fishery for yellowfin tuna, including: A description, with copies of relevant laws, implementing regulations and guidelines, of the gear and procedures required in the fishery to protect marine mammals, including but not limited to the following: A description of the methods used to identify problems and to take corrective actions to improve the performance of individual fishermen in reducing incidental mortality and serious injury. By 1990 the methods must identify individual operators with marine mammal mortality rates which are consistently and substantially higher than the majority of the nation's fleet, and provide for corrective training and, ultimately, suspension and removal from the fishery if the operator's performance does not improve to at least the performance of the majority of the fleet in a reasonable time period; By 1990, a description of a regulatory system in operation which ensures that all marine mammal sets are completed through backdown to rolling the net to sack-up no later than one-half hour after sundown, except that individual operators may be exempted, if they have maintained consistently a rate of kill during their observed sundown sets which is not higher than that of the nation's fleet average during daylight sets made during the time period used for their comparability finding; and By 1990, a description of its restrictions on the use of explosive devices in the purse seine fishery which are comparable to those of the United States. A detailed description of the method (e.g., Inter-American Tropical Tuna Commission (IATTC) or other international program observer records) and level of observer coverage by which the incidental mortality and serious injury of marine mammals will be monitored. A list of its vessels and any certified charter vessels of greater than 400 short tons carrying capacity which purse seined for yellowfin tuna at any time during the preceding year in the ETP, indicating the status of each such vessel during that period (i.e., actively fishing in ETP, fishing in other waters; in port for repairs; inactive) and the status of each vessel expected to operate in the ETP in the year in which the submission is made. A compilation of the best available data for each calendar year on the performance of any of its purse seine vessels (including certified charter vessels) fishing at any time for tuna associated with marine mammals within the ETP including the following: Total number of tons of yellowfin tuna observed caught in each fishing area by purse seine sets on: Common dolphin and All other marine mammal species; Total number of marine mammals observed killed and the total number of marine mammals observed seriously injured in each fishing area by species/stock by purse seine sets on: Common dolphin and All other marine mammal species;

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY Total number of observed trips and total number of observed purse seine sets on marine mammals in each fishing area by the nation' s purse seine fleet during the year; Total number of vessel trips and total number of purse seine sets on marine mammals in each fishing area by the nation's purse seine fleet during the year; and The total number of observed purse seine sets in each fishing area in which more than 15 marine mammals were killed. Data required by paragraph (e)(5)(ii)(C)(2) presented individually for the following marine mammal species/stocks: offshore spotted dolphin, coastal spotted dolphin, eastern spinner dolphin, whitebelly spinner dolphin, common dolphin, striped dolphin, and “other marine mammals”. A description of the source of the data provided in accordance with paragraph (e)(5)(ii)(C) of this section. The observer program from which these data are provided must be operated by the IATTC or another international program in which the United States participates and must sample at least the same percentage of the fishing trips as the United States achieves over the same time period, unless the Assistant Administrator determines that an alternative observer program, including a lesser level of observer coverage, will provide a sufficiently reliable average rate of incidental taking of marine mammals for the nation. A nation applying for its initial finding of comparability should apply at least 120 days before the desired effective date. The Assistant Administrator's determination on a nation's application for its initial finding will be announced and published in the FEDERAL REGISTER within 120 days of receipt of the information required in paragraph (e)(5)(ii) of this section. A harvesting nation, which has in effect a positive finding under this section, may request renewal of its finding for the subsequent calendar year by providing the Assistant Administrator by July 31, or for nations participating in the IATTC observer program, within 14 days after the date the IATTC releases data on dolphin mortality, whichever is later, an update of the information listed in § 216.24(e)(5)(ii) which is current through the previous full calendar year. The Assistant Administrator will make an affirmative finding or renew an affirmative finding for a harvesting nation if: The harvesting nation has provided all information required by paragraphs (e)(5)(ii) and (e)(5)(iv) of this section; The nation's regulatory program is comparable to the regulatory program of the United States as described in paragraphs (a), (b), (c), (d)(2), and (f) of this section and the nation has incorporated into its regulatory program such additional prohibitions as the United States may apply to its own vessels within 180 days after the prohibition applies to U.S. vessels, except that provisions for identifying and removing problem operators, prohibiting sundown sets, and restricting the use of explosives described in (e)(5)(ii)(A)(1) of this section must be applied by a nation to its vessels by January 1, 1990; The data on marine mammal mortality and serious injury submitted by the harvesting nation are determined to be accurate; The observer coverage of fishing trips was equal to that achieved by the United States during the same time period or, if less, was determined by the Assistant Administrator to provide a sufficiently accurate sample of the nation's fleet mortality rate; For findings using data collected after 1988, the average kill-per-set rate for the longest period of time for which data are available, up to 5 consecutive years, or for the most recent year, whichever is lower, is no more than 25 percent greater than the U.S. average for the same time period, after the U.S. mortality rate is weighted to account for dissimilar amounts of fishing effort between the two nations in the three ETP fishing areas and for common dolphin and other marine mammal species, except as provided in paragraph (e)(5)(v)(F) of this section for findings made in 1990; Based on data collected through the 1989 fishing year, a nation's average mortality rate is no more than

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY twice that of the U.S.-flag fleet for the same period, after the U.S. mortality rate is weighted to account for dissimilar amounts of fishing effort between the two nations in the three ETP fishing areas and for common dolphin and other marine mammal species; For the 1989 fishing year and subsequent years, the nation's observed kill of eastern spinner dolphin (Stenella longirostris) and coastal spotted dolphin (Stenella attenuata) is no greater than 15 percent and 2 percent, respectively, of the nation's total annual observed dolphin mortality; and The nation has complied with all reasonable requests by the Assistant Administrator for cooperation in carrying out dolphin population assessments in the ETP. The Assistant Administrator may require verification of statements made in connection with requests to allow importations. A finding is valid only for the period for which it was issued and may be terminated before the end of the year if the Assistant Administrator finds that the nation no longer has a comparable regulatory program or kill rate. 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 paragraph (e)(5)(v) of this section. For a harvesting nation whose marine mammal mortality rate was found to exceed the acceptable levels prescribed in paragraphs (e)(5)(v)(E), (e)(5)(v)(F), or (e)(5)(v)(G) of this section, the additional information must include data collected by an acceptable observer program which demonstrate that the nation's fleet marine mammal mortality rate improved to the acceptable level during the period including at a minimum January 1 through June 30 of the year following the year in which the nation 's mortality rate was found to exceed acceptable levels. Any tuna or tuna products in the classifications listed in paragraph (e)(2)(i) of this section, from any intermediary nation, may not be imported into the United States if the Assistant Administrator determines and publishes the determination in the FEDERAL REGISTER that the intermediary nation has not provided reasonable proof and has not certified to the United States that it has acted to ban the importation into its nation of all yellowfin tuna and tuna products from those nations from which the United States has banned the importation of yellowfin tuna and tuna products. The intermediary nation's ban must be effective within sixty days of the effective date of the U.S. ban, and the intermediary nation must supply the Assistant Administrator with the reasonable proof and certification within 90 days of the effective date of the U.S. ban in order to avoid imposition of the embargo on the 91st day. The Secretary will not require an intermediary nation to certify that it has implemented a ban on yellowfin tuna and tuna products from a nation embargoed by the United States, if the Secretary is satisfied that the intermediary nation continues to derive its tuna products, directly or indirectly, from sources other than that embargoed nation. An embargo under this paragraph may be lifted by the Assistant Administrator upon a determination announced in the FEDERAL REGISTER, based upon new information supplied by the embargoed nation, that the nation has acted to ban yellowfin tuna and tuna products from those nations from which the United States has banned the importation of yellowfin tuna and tuna products. After six months of an embargo being in place against a nation under this section, that fact shall be certified to the President for purposes of certification under section 8(a) of the Fishermen's Protective Act of 1967 (22 U.S.C. 1978(a)) for as long as the embargo is in effect. The Assistant Administrator will promptly advise the Department of State of embargo decisions and actions and of finding determinations. Fish refused entry. If fish is denied entry under the provisions of § 216.24(e)(3) or (e)(4), the District Director of Customs shall refuse to release the fish for entry into the United States and shall issue a notice

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY of such refusal to the importer or consignee. Release under bond. Provided however, That fish not accompanied or covered by the required documentation or certification when offered for entry may be entered into the United States if the importer or consignee gives a bond on Customs Form 7551, 7553, or 7595 for the production of the required documentation or certification. The bond shall be in the amount required under 19 CFR 25.4(a). Within 90 days after such Customs entry, or such additional period as the District Director of Customs may allow for good cause shown, the importer or consignee shall deliver a copy of the required documentation or certification to the District Director of Customs, and an original of the required documentation or a copy of the certification to the Regional Director of the National Marine Fisheries Service, unless the District Director of Customs has received notification from the National Marine Fisheries Service that the fish is covered by a certification. If such documentation, certification, or notification is not delivered to the District Director of Customs for the port of entry of such fish within 90 days of the date of Customs entry or such additional period as may have been allowed by the District Director of Customs for good cause shown, the importer or consignee shall redeliver or cause to be redelivered to the District Director of Customs those fish which were released in accordance with this paragraph. In the event that any such fish is not redelivered within 30 days following the date specified in the preceding sentence, liquidated damages shall be assessed in the full amount of bond given on Form 7551. When the transaction has been charged against a bond given on Form 7553 or 7595, liquidated damages shall be assessed in the amount that would have been demanded under the preceding sentence under a bond given on Form 7551. Fish released for entry into the United States through use of the bonding procedure provided in this paragraph shall be subject to the civil and criminal penalties and the forfeiture provisions provided for under the Act if: The required documentation or certification is not delivered to the Regional Director of the National Marine Fisheries Service within 90 days of the date of Customs entry, or such additional period as may have been allowed by the District Director of Customs for good cause shown, or The required certification is not on file in the office of the Assistant Administrator, National Marine Fisheries Service, National Oceanic and Atomspheric Administration, Department of Commerce, Washington, DC 20235, within this 90 day period or such additional period as may have been allowed by the District Director of Customs for good cause shown. Fish refused entry into the United States shall also be subject to the civil and criminal penalties and the forfeiture provisions provided for under the Act. Disposition of fish refused entry into the United States; redelivered fish. Fish which is denied entery under § 216.24(e)(3) or (e)(4) or which is redelivered in accordance with § 216.24(e)(7) and which is not exported under Customs supervision within 90 days from the date of notice of refusal of admission or date of redelivery shall be disposed of under Customs laws and regulations. Provided however, That any disposition shall not result in an introduction into the United States of fish caught in violation of the Marine Mammal Protection Act of 1972. Restrictions on yellowfin and bigeye tuna imports. No yellowfin or bigeye tuna harvested by a purse seine vessel fishing on porpoise in the eastern tropical Pacific Ocean (the “ETP”) during the period that such fishing is prohibited for vessels of the United States under § 216.24(a)(4)(i) in 1986, may be imported into the United States. Any tuna harvested in the ETP before the closure date must be placed in a bonded warehouse, aboard a common carrier, or aboard a vessel in port awaiting to unload before the closure date in order to be imported into the United States after the closure date. Definitions for purposes of § 216.24(e)(9). “Closure date” means the date on which the allowable quota on incidental mortality per

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY mitted under the general permit will be reached as announced under the provisions of § 216.24(d)(2)(i)(B). “Closure period” means a period beginning on the closure date and ending on December 31, 1986, during which United States purse seine vessels are prohibited from catching tuna by setting on porpoise. “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 coastline of North, Central, and South America. “NMFS” means the National Marine Fisheries Services, National Oceanic and Atmospheric Administration, Department of Commerce. Authorization required for yel lowfin and bigeye tuna imports. Any yellowfin or bigeye tuna harvested by a vessel of a country for which the Assistant Administrator has made a finding under paragraph (e)(5)(i) of this section, that is offered for importation between the closure date and June 30, 1987, must be accompanied by a letter of authorization from NMFS. Procedure to obtain letter of au thorization. Any person desiring to obtain a letter of authorization from NMFS to allow the importation of yellowfin or bigeye tuna must submit to the Regional Director, NMFS, 300 S. Ferry Street, Terminal Island, California 90731, a declaration signed by a responsible government official of the country whose flag vessel caught the tuna, that the tuna being offered for importation was not taken by fishing on porpoise during the closure period. The declaration of the responsible government official must include the information listed in either paragraph (e)(9)(iv) (A), (B), (C), (D), or (E) of this section, as appropriate. If the tuna to be imported was taken on a fishing trip any part of which was in the ETP during the closure period, the declaration must include the following information: The name of the vessel(s) which harvested the tuna, The date of the trip(s) on which the tuna was harvested, A statement that the vessel carried an observer approved by the government on every portion of the trip that occurred after the closure date, and A statement that the observer certified that no tuna was harvested by fishing on porpoise after the closure date. If the tuna to be imported was taken on a fishing trip in the ETP that ended before the closure date, the declaration must include the following information: The names of the vessel(s) which harvested the tuna, The dates of the trip(s) on which the tuna was harvested, and one of the following sets of information: The date the tuna arrived in port, the date when the tuna was placed in a bonded warehouse, the date the tuna was removed from the bonded warehouse, and the name and address of the bonded warehouse. Documentation establishing that the tuna was in port on the closure date and documentation from the bonded warehouse that shows the dates that the tuna was placed into the warehouse and taken out of the warehouse must accompany the declaration. The date the tuna arrived in port, the date when the tuna was placed on a common carrier for shipping, and the name and address of the common carrier for shipping, and the name and address of the common carrier. Documentation establishing that the tuna was in port on the closure date and documentation from the common carrier that shows the date(s) that the tuna was placed aboard the carrier must accompany the declaration. The date the tuna arrived in port, awaiting unloading, the date the vessel is schedule for unloading, the intended disposition of the tuna (i.e., common carrier, bonded warehouse, offloading in Puerto Rico, Venezuela, etc.) and documentation from a port official verifying the arrival date of the vessel. If the tuna to be imported was taken by fishing on porpoise on a fishing trip that began after the closure period ends, the declaration must include the following information: The names of the vessel(s) which harvested the tuna,

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY The dates of the trip(s) on which the tuna was harvested, and The location of the harvest. If the tuna to be imported was taken on a fishing trip on which the vessel was not in the ETP for any portion of the trip, the declaration must include the following information: The names of the vessel(s) which harvested the tuna, The dates of the trip(s) on which the tuna was harvested, and The areas in which the vessel(s) was during the trip(s) (e.g., the western Pacific Ocean). If the tuna to be imported was taken in part or entirely by tuna purse seine vessels of 400 short tons carrying capacity or less, (and any remaining tuna was not caught by tuna purse seine vessels of larger than 400 short tons) the declaration must include the following information: The name(s) of the vessel(s) which caught the tuna; The carrying capacity in short tons of the(se) vessel(s); and the quantity of tuna being imported that was caught by the(se) vessel(s). Disposition of tuna not accompa nied by required documentation. Tuna that requires a letter of authorization under paragraph (e)(9)(iii) of this section that is offered for importation without the required letter of authorization must be either— Exported under Customs supervision within 60 days, Placed into a bonded warehouse, or Disposed of under Customs laws and regulations, as long as that disposition does not result in its introduction into the United States. The importer will remain liable for any expenses incurred in the storage and/or disposal of tuna refused admission under these regulations. If, within 60 days of fish being placed into a bonded warehouse, the District Director of Customs receives appropriate documentation for that fish, the fish will be allowed to be entered into the United States, otherwise it will be disposed of as set forth in paragraph (e)(9)(v) (A) of (C) of this section. Observers. The vessel certificate holder of any certificated vessel shall, upon the proper notification by the National Marine Fisheries Service, allow an observer duly authorized by the Secretary to accompany the vessel on any or all regular fishing trips for the purpose of conducting research and observing operations, including collecting information which may be used in civil or criminal penalty proceedings, forfeiture actions, or permit or certificate sanctions. Research and observation duties shall be carried out in such a manner as to minimize interference with commercial fishing operations. The navigator shall provide true vessel locations by latitude and longitude, accurate to the nearest minute, upon request by the observer. No owner, master, operator, or crew member of a certificated vessel shall impair or in any way interfere with the research or observations being carried out. Marine mammals killed during fishing operations which are accessible to crewmen and requested from the certificate holder or master by the observer shall be brought aboard the vessel and retained for biological processing, until released by the observer for return to the ocean. Whole marine mammals designated as biological specimens by the observer shall be retained in cold storage aboard the vessel until retrieved by authorized personnel of the National Marine Fisheries Service when the vessel returns to port for unloading. The Secretary shall provide for the payment of all reasonable costs directly related to the quartering and maintaining of such observers on board such vessels. A vessel certificate holder who has been notified that the vessel is required to carry an observer, via certified letter from the National Marine Fisheries Service, shall notify the office from which the letter was received at least five days in advance of the fishing voyage to facilitate observer placement. A vessel certificate holder who has failed to comply with the provisions of this section may not engage in fishing operations for which a general permit is required. It is unlawful for any person to forcibly assault, impede, intimidate, interfere with, or to influence or attempt to influence an observer, or to

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY harass (including sexual harassment) an observer by conduct which has the purpose or effect of unreasonably interfering with the observer 's work performance, or which 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. 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. Female observers on a vessel with an all-male crew must be accommodated either in a single-person 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 and must be followed during the entire trip. In the event there are one or more female crew members, the female observer may 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. A vessel certificate of inclusion holder (or vessel owner in the case of a new application) may seek an exemption from carrying a female observer on a vessel by applying to the Southwest Regional Director when applying for the vessel certificate of inclusion until July 10, 1989 and establishing the following: The vessel will have an all-male crew; The vessel has fewer than two private (one-person) and semi-private (two-person) cabins in total (excluding the captain's cabin); A temporary divider like a curtain cannot be installed in the private or semi-private cabin (excluding the captain's cabin) to provide reasonable privacy; and There are no other areas (excluding the captain's cabin) that can be converted to a sleeping room without either significant expense or significant sacrifice to the crew's quarters. The exclusion criteria in paragraph (f)(7)(i) of this section can be met without having to provide the captain's cabin for the observer. The application for an exemption must also include an accurate diagram of the vessel's living areas, and other areas possibly suitable for sleeping. Additional documentation to support the application may also be required, as may an inspection of the vessel. The exemption, once granted, is valid for the same calendar year as the vessel certificate of inclusion, and the exemption must be renewed annually to remain valid. The vessel certificate of inclusion holder is responsible for reporting to the Regional Director any changes aboard the vessel within 15 days of the change which might affect the continued eligibility for an exemption. The Southwest Regional Director will revoke an exemption if the criteria for an exemption are no longer met. Penalties and rewards: Any person or vessel subject to the jurisdiction of the United States shall be subject to the penalties provided for under the Act for the conduct of fishing operations in violation of these regulations. The Secretary shall recommend to the Secretary of the Treasury that an amount equal to one-half of the fine incurred but not to exceed $2,500 be paid to any person who furnishes information which leads to a conviction for a violation of these regulations. Any officer, employee, or designated agent of the United States or of any State or local government who furnishes information or renders service in the performance of

OCR for page 129
DOLPHINS AND THE TUNA INDUSTRY his official duties shall not be eligible for payment under this section. [45 FR 72187, Oct. 31, 1980] EDITORIAL NOTE : For Federal Register citations affecting § 216.24, see the List of CFR Sections Affected in the Finding Aids section of this volume. EFFECTIVE DATE NOTE : At 54 FR 415, January 6, 1989, § 216.24 was amended by revising paragraph (d)(2)(vii)(C) and adding a new paragraph (d)(2)(vii)(E), effective January 1, 1989, except the amendments to § 216.24(d)(2)(vii)(C)(1) and (5), and (viii), which contain information collection requirements and will not be effective until approved by the Office of Management and Budget. When approval is obtained, NOAA will publish a notice of effective date for these paragraphs in the Federal Register. § 216.25 Exempted marine mammals and marine mammal products. The provisions of the Act and these regulations shall not apply: To any marine mammal taken before December 21, 1972, or To any marine mammal product if the marine mammal portion of such product consists solely of a marine mammal taken before such date. 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. 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. § 216.26 Collection of certain marine mammal parts. Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from land within 1/4 of a mile of the ocean. The term “ocean” includes bays and estuaries. Marine mammal parts so collected may be retained if registered within 30 days with an agent of the National Marine Fisheries Service, or an agent of the Bureau of Sport Fisheries and Wildlife. Registration shall include (1) the name of the owner, (2) a description of the article to be registered and (3) the date and location of collection. Title to any marine mammal parts collected under this section is not transferable unless consented to, in writing, by the Secretary.