Incidental Take Requlations - 50 CFR 18.27 and Subpart J

Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS
Subpart C—General Exceptions
§ 18.27
Regulations governing small takes of marine mammals incidental
to specified activities.
(a) Purpose of regulations. The regulations in this section implement
Section 101(a)(5) 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, during periods of not more than five consecutive years each, 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 geographical region.
(b) Scope of regulations. The taking of small numbers of marine mammals
under section 101(a)(5) of the Marine Mammal Protection Act may be allowed
only if the Director of the Fish and Wildlife Service (1) finds, based on
the best scientific evidence available, that the total taking during the
specified time period will have a negligible impact on the species or
stock and will not have an unmitigable adverse impact on the availability
of the species or stock for subsistence uses; (2) prescribes regulations
setting forth permissible methods of taking and other means of effecting
the least practicable adverse impact on the species and its habitat and on
the availability of the species for subsistence uses, paying particular
attention to rookeries, mating grounds, and areas of similar significance;
and (3) prescribes regulations pertaining to the monitoring and reporting
of such taking.
Note: The information collection requirement contained in this §18.27 has
been approved by the Office of Management and Budget under 44 U.S.C. 3501
et seq. and assigned clearance No. 1018–0070. The information is being
collected to describe the activity proposed and estimate the cumulative
impacts of potential takings by all persons conducting the activity. The
information will be used to evaluate the application and determine whether
to issue Specific Regulations and, subsequently, Letters of Authorization.
Response is required to obtain a benefit.
The public reporting burden from this requirement is estimated to vary
from 2 to 200 hours per response with an average of 10 hours per response
including time for reviewing instructions, gathering and maintaining data,
and completing and reviewing applications for specific regulations and
Letters of Authorization. Direct comments regarding the burden estimate or
any other aspect of this requirement to the Information Collection
Clearance Officer, U.S. Fish and Wildlife Service, Department of the
Interior, Mail Stop—220 ARLSQ, 18th and C Streets NW., Washington, DC
20240, and the Office of Management and Budget, Paperwork Reduction
Project (Clearance No. 1018–0070), Washington, DC 20503.
(c) Definitions. In addition to definitions contained in the Act and in 50
CFR 18.3 and unless the context otherwise requires, in this section:
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 section.
Incidental, but not intentional, taking means takings which are
infrequent, unavoidable, or accidental. It does not mean that the taking
must be unexpected. (Complete definition of take is contained in 50 CFR
18.3.)
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,
which takes place in a specified geographical region and potentially
involves the taking of small numbers of marine mammals. The specified
activity and specified geographical region should be identified so that
the anticipated effects on marine mammals will be substantially similar.
Specified geographical region means an area within which a specified
activity is conducted and which has similar 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.
(d) Submission of requests. (1) In order for the Fish and Wildlife Service
to consider allowing the taking by U.S citizens of small numbers of marine
mammals incidental to a specified activity, a written request must be
submitted to the Director, U.S. Fish and Wildlife Service, Department of
the Interior, Washington, DC 20240. Requests shall include the following
information on the activity as a whole, which includes, but is not limited
to, an assessment of total impacts by all persons conducting the activity:
(i) A description of the specific activity or class of activities that can
be expected to result in incidental taking of marine mammals;
(ii) The dates and duration of such activity and the specific geographical
region where it will occur;
(iii) Based upon the best available scientific information;
(A) An estimate of the species and numbers of marine mammals likely to be
taken by age, sex, and reproductive conditions, and the type of taking
(e.g., disturbance by sound, injury or death resulting from collision,
etc.) and the number of times such taking is likely to occur;
(B) A description of the status, distribution, and seasonal distribution
(when applicable) of the affected species or stocks likely to be affected
by such activities;
(C) The anticipated impact of the activity upon the species or stocks;
(D) The anticipated impact of the activity on the availability of the
species or stocks for subsistence uses;
(iv) The anticipated impact of the activity upon the habitat of the marine
mammal populations and the likelihood of restoration of the affected
habitat;
(v) The anticipated impact of the loss or modification of the habitat on
the marine mammal population involved;
(vi) 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, where relevant, on their
availability for subsistence uses, paying particular attention to
rookeries, mating grounds, and areas of similar significance. (The
applicant and those conducting the specified activity and the affected
subsistence users are encouraged to develop mutually agreeable mitigating
measures that will meet the needs of subsistence users.);
(vii) Suggested means of accomplishing the necessary monitoring and
reporting which will result in increased knowledge of the species through

an analysis of the level of taking or impacts and suggested means of
minimizing burdens by coordinating such reporting requirements with other
schemes already applicable to persons conducting such activity; and
(viii) Suggested means of learning of, encouraging, and coordinating
research opportunities, plans and activities relating to reducing such
incidental taking from such specified activities, and evaluating its
effects.
(2) The Director shall determine the adequacy and completeness of a
request, and if found to be adequate, will invite information,
suggestions, and comments on the preliminary finding of negligible impact
and on the proposed specific regulations through notice in theFederal
Register,newspapers of general circulation, and appropriate electronic
media in the coastal areas that may be affected by such activity. All
information and suggestions will be considered by the Fish and Wildlife
Service in developing final findings and effective specific regulations.
(3) The Director shall evaluate each request to determine, based on the
best available scientific evidence, whether the total taking 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 Director finds that mitigating measures
would render the impact of the specified activity negligible when it would
not otherwise satisfy that requirement, the Director 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 the proposed specific regulations.
(4) If the Director cannot make a finding that the total taking will have
a negligible impact in the species or stock or will not have an
unmitigable adverse impact on the availability of such species or stock
for subsistence uses, the Director shall publish in theFederal Registerthe
negative finding along with the basis for denying the request.
(e) Specific regulations. (1) Specific regulations will be established for
each allowed activity which set forth (i) permissible methods of taking,
(ii) 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 (iii) requirements for monitoring and reporting.
(2) Regulations will be established based on the best available scientific
information. As new information is developed, through monitoring,
reporting, or research, the regulations may be modified, in whole or part,
after notice and opportunity for public review.
(f) Letters of Authorization. (1) A Letter of Authorization, which may be
issued only to U.S. citizens, is required to conduct activities pursuant
to any specific regulations established. Requests for Letters of
Authorization shall be submitted to the Director, U.S. Fish and Wildlife
Service, Department of the Interior, Washington, DC 20240. The information
to be submitted in a request may be obtained by writing the Director. Once
specific regulations are effective, the Service will to the maximum extent
possible, process subsequent applications for Letters of Authorization
within 30 days after receipt of the application by the Service.
(2) 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.
(3) Notice of issuance of all Letters of Authorization will be published
in theFederal Registerwithin 30 days of issuance.
(4) Letters of Authorization will specify the period of validity and any
additional terms and conditions appropriate for the specific request.
(5) 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 Director determines: (i) The
regulations prescribed are not being substantially complied with, or (ii)
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.
(6) The requirement for notice and opportunity for public review in
paragraph (f)(5) of this section shall not apply if the Director
determines that an emergency exists which poses a significant risk to the
well-being of the species or stocks of marine mammals concerned.
(7) A violation of any of the terms and conditions of a Letter of
Authorization or of the specific regulations may 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 Marine Mammal Protection Act
of 1972 (16 U.S.C. 1361–1407).
[48 FR 31225, July 7, 1983, as amended at 54 FR 40348, Sept. 29, 1989; 55
FR 28765, July 13, 1990; 56 FR 27463, June 14, 1991]

Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS
Subpart J—Nonlethal Taking of Marine Mammals Incidental to Oil and Gas
Exploration, Development, and Production Activities in the Beaufort Sea
and Adjacent Northern Coast of Alaska
Source:
71 FR 43950, Aug. 2, 2006, unless otherwise noted.
§ 18.121
What specified activities does this subpart cover?
Regulations in this subpart apply to the nonlethal incidental, but not
intentional, take of small numbers of polar bear and Pacific walrus by you
(U.S. citizens as defined in §18.27(c)) while engaged in oil and gas
exploration, development, and production activities in the Beaufort Sea
and adjacent northern coast of Alaska.
§ 18.122
In what specified geographic region does this subpart apply?
This subpart applies to the specified geographic region defined by a
north-south line at Barrow, Alaska, and includes all Alaska coastal areas,
State waters, and Outer Continental Shelf waters east of that line to the
Canadian border and an area 25 miles inland from Barrow on the west to the
Canning River on the east. The Arctic National Wildlife Refuge is not
included in the area covered by this subpart. Figure 1 shows the area
where this subpart applies.
§ 18.123
When is this subpart effective?
Regulations in this subpart are effective from August 2, 2006 through
August 2, 2011 for year-round oil and gas exploration, development, and
production activities.
§ 18.124
How do I obtain a Letter of Authorization?
(a) You must be a U.S. citizen as defined in §18.27(c).
(b) If you are conducting an oil and gas exploration, development, or
production activity in the specified geographic region described in
§18.122 that may cause the taking of polar bear or Pacific walrus in
execution of those activities and you want nonlethal incidental take
authorization under this rule, you must apply for a Letter of
Authorization for each exploration activity or a Letter of Authorization
for activities in each development or production area. You must submit the
application for authorization to our Alaska Regional Director (see 50 CFR
2.2 for address) at least 90 days prior to the start of the proposed

activity.
(c) Your application for a Letter of Authorization must include the
following information:
(1) A description of the activity, the dates and duration of the activity,
the specific location, and the estimated area affected by that activity,
i.e., a Plan of Operation.
(2) A site-specific plan to monitor the effects of the activity on the
behavior of polar bear and Pacific walrus that may be present during the
ongoing activities. Your monitoring program must document the effects to
these marine mammals and estimate the actual level and type of take. The
monitoring requirements will vary depending on the activity, the location,
and the time of year.
(3) A site-specific polar bear awareness and interaction plan.
(4) A Plan of Cooperation to mitigate potential conflicts between the
proposed activity and subsistence hunting, where relevant. This Plan of
Cooperation must identify measures to minimize adverse effects on the
availability of polar bear and Pacific walrus for subsistence uses if the
activity takes place in or near a traditional subsistence hunting area.
Some of these measures may include, but are not limited to, mitigation
measures described in §18.128.
§ 18.125
What criteria does the Service use to evaluate Letter of
Authorization requests?
(a) We will evaluate each request for a Letter of Authorization based on
the specific activity and the specific geographic location. We will
determine whether the level of activity identified in the request exceeds
that analyzed by us in making a finding of negligible impact on the
species and a finding of no unmitigable adverse impact on the availability
of the species for take for subsistence uses. If the level of activity is
greater, we will reevaluate our findings to determine if those findings
continue to be appropriate based on the greater level of activity that you
have requested. Depending on the results of the evaluation, we may grant
the authorization, add further conditions, or deny the authorization.
(b) In accordance with §18.27(f)(5), we will make decisions concerning
withdrawals of Letters of Authorization, either on an individual or class
basis, only after notice and opportunity for public comment.
(c) The requirement for notice and public comment in paragraph (b) of this
section will not apply should we determine that an emergency exists that
poses a significant risk to the well-being of the species or stock of
polar bear or Pacific walrus.
§ 18.126
What does a Letter of Authorization allow?
(a) Your Letter of Authorization may allow the nonlethal incidental, but
not intentional, take of polar bear and Pacific walrus when you are
carrying out one or more of the following activities:
(1) Conducting geological and geophysical surveys and associated
activities;
(2) Drilling exploratory wells and associated activities;
(3) Developing oil fields and associated activities;
(4) Drilling production wells and performing production support
operations;
(5) Conducting environmental monitoring activities associated with
exploration, development, and production activities to determine specific
impacts of each activity;
(6) Conducting restoration, remediation, demobilization programs, and
associated activities.
(b) You must use methods and conduct activities identified in your Letter
of Authorization in a manner that minimizes to the greatest extent
practicable adverse impacts on polar bear and Pacific walrus, their

habitat, and on the availability of these marine mammals for subsistence
uses.
(c) Each Letter of Authorization will identify conditions or methods that
are specific to the activity and location.
§ 18.127
What activities are prohibited?
(a) Intentional take and lethal incidental take of polar bear or Pacific
walrus; and
(b) Any take that fails to comply with this part or with the terms and
conditions of your Letter of Authorization.
§ 18.128
What are the mitigation, monitoring, and reporting
requirements?
(a) We require holders of Letters of Authorization to cooperate with us
and other designated Federal, State, and local agencies to monitor the
impacts of oil and gas exploration, development, and production activities
on polar bear and Pacific walrus.
(b) Holders of Letters of Authorization must designate a qualified
individual or individuals to observe, record, and report on the effects of
their activities on polar bear and Pacific walrus.
(c) All holders of Letters of Authorization are required to have an
approved polar bear and/or walrus interaction plan on file with the
Service and on-site, and polar bear awareness training will also be
required of certain personnel. Interaction plans must include:
(1) The type of activity and, where and when the activity will occur,
i.e., a Plan of Operation;
(2) A food and waste management plan;
(3) Personnel training materials and procedures;
(4) Site at-risk locations and situations;
(5) Walrus/bear observation and reporting procedures; and
(6) Bear/walrus avoidance and encounter procedures.
(d) All applicants for a Letter of Authorization must contact affected
subsistence communities to discuss potential conflicts caused by location,
timing, and methods of proposed operations and submit to us a record of
communication that documents these discussions. If appropriate, the
applicant for a Letter of Authorization must also submit to us a Plan of
Cooperation that ensures that activities will not interfere with
subsistence hunting and that adverse effects on the availability of polar
bear or Pacific walrus are minimized.
(e) Mitigation measures that may be required on a case-by-case basis
include:
(1) The use of trained marine mammal monitors associated with marine
activities. We may require a monitor on the site of the activity or on
board drill ships, drill rigs, aircraft, icebreakers, or other support
vessels or vehicles to monitor the impacts of Industry's activity on polar
bear and Pacific walrus.
(2) The use of den habitat map developed by the USGS. A map of potential
coastal polar bear denning habitat can be found at:
http://www.absc.usgs.gov/research/sis_summaries/polar_bears_sis/mapping_dens.htm
.
This measure ensures that the location of potential polar bear dens is
considered when conducting activities in the coastal areas of the Beaufort
Sea.
(3) The use of Forward Looking Infrared (FLIR) imagery, polar bear
scent-trained dogs, or both to determine the presence or absence of polar
bear dens in area of the activity.
(4) Restricting the timing of the activity to limit disturbance around
dens.

(5) Requiring a 1-mile exclusion buffer surrounding known dens. If known
occupied dens are located within an operator's area of activity, we will
require a 1-mile exclusion buffer around the den to limit disturbance or
require that the operator conduct activities after the female bears emerge
from their dens. We will review these requirements for extenuating
circumstances on a case-by-case basis.
(f) For exploratory and development activities, holders of a Letter of
Authorization must submit a report to our Alaska Regional Director (Attn:
Marine Mammals Management Office) within 90 days after completion of
activities. For production activities, holders of a Letter of
Authorization must submit a report to our Alaska Regional Director (Attn:
Marine Mammals Management Office) by January 15 for the preceding year's
activities. Reports must include, at a minimum, the following information:
(1) Dates and times of activity;
(2) Dates and locations of polar bear or Pacific walrus activity as
related to the monitoring activity; and
(3) Results of the monitoring activities required under subsection (g) of
this section, including an estimated level of take.
(g) Monitoring requirements include, but are not limited to:
(1) For all activities, all sightings of polar bears and walrus must be
recorded. To the extent possible, the monitor will record group size, age,
sex, reaction, duration of interaction, and closest approach to Industry
activity.
(2) Activities within the coast of the geographic region may incorporate
daily polar bear watch logs.
(3) Polar bear monitors will be required under the monitoring plan if
polar bears are known to frequent the area or known polar bear dens are
present in the area. Monitors will act as an early detection system in
regards to proximate bear activity to Industry facilities.
(4) Offshore sites may require systematic monitoring protocols for polar
bears and walrus due to their nearshore locations. Systematic monitoring
may be implemented to statistically monitor observation trends of walrus
or polar bears in the nearshore areas where they usually occur.
§ 18.129
What are the information collection requirements?
(a) The Office of Management and Budget has approved the collection of
information contained in this subpart and assigned control number
1018–0070. You must respond to this information collection request to
obtain a benefit pursuant to section 101(a)(5) of the Marine Mammal
Protection Act (MMPA). We will use the information to (1) evaluate the
application and determine whether or not to issue specific Letters of
Authorization and (2) monitor impacts of activities conducted under the
Letters of Authorization.
(b) You should direct comments regarding the burden estimate or any other
aspect of this requirement to the Information Collection Clearance
Officer, U.S. Fish and Wildlife Service, Department of the Interior, Mail
Stop 222 ARLSQ, 1849 C Street, NW., Washington, DC 20240.
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