50 Cfr 18

Title 50: Wildlife and Fisheries

PART 18—MARINE MAMMALS

Section Contents

Subpart A—Introduction
§
§
§
§

18.1
18.2
18.3
18.4

Purpose of regulations.
Scope of regulations.
Definitions.
Information collection requirements.

Subpart B—Prohibitions
§
§
§
§

18.11
18.12
18.13
18.14

Prohibited taking.
Prohibited importation.
Prohibited uses, possession, transportation, and sales.
Marine mammals taken before the Act.

Subpart C—General Exceptions
§ 18.21
Actions permitted by international treaty, convention, or
agreement.
§ 18.22
Taking by Federal, State or local government officials.
§ 18.23
Native exemptions.
§ 18.24
Taking incidental to commercial fishing operations.
§ 18.25
Exempted marine mammals or marine mammal products.
§ 18.26
Collection of certain dead marine mammal parts.
§ 18.27
Regulations governing small takes of marine mammals incidental
to specified activities.

Subpart D—Special Exceptions
§ 18.30
Polar bear sport-hunted trophy import permits.
§ 18.31
Scientific research permits and public display permits.
§ 18.32
Waiver of the moratorium.
§ 18.33
Procedures for issuance of permits and modification, suspension,
or revocation thereof.

Subpart E—Depleted Species or Stocks [Reserved]

Subpart F—Transfer of Management Authority to States

Subpart G—Notice and Hearing on Section 103 Regulations

§ 18.70
Basis and purpose.
§ 18.71
Definitions.
§ 18.72
Scope of regulations.
§ 18.73
Burden of proof.
§ 18.74
Notice of hearing.
§ 18.75
Notification by interested persons.
§ 18.76
Presiding officer.
§ 18.77
Direct testimony submitted as written documents.
§ 18.78
Mailing address.
§ 18.79
Inspection and copying of documents.
§ 18.80
Ex parte communications.
§ 18.81
Prehearing conference.
§ 18.82
Prehearing order.
§ 18.83
Determination to cancel the hearing.
§ 18.84
Rebuttal testimony and new issues of fact in prehearing order.
§ 18.85
Waiver of right to participate.
§ 18.86
Conduct of the hearing.
§ 18.87
Direct testimony.
§ 18.88
Cross-examination.
§ 18.89
Oral and written arguments.
§ 18.90
Recommended decision, certification of the transcript and
submission of comments on the recommended decision.
§ 18.91
Director's decision.

Subpart H—Waiver of Moratorium on Taking and Importation of Individual
Marine Mammal Species
§ 18.92
§ 18.93
§ 18.94

Purpose of regulations.
Scope of regulations.
Pacific walrus (Alaska).

Subpart I [Reserved]

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
§ 18.121
What specified activities does this subpart cover?
§ 18.122
In what specified geographic region does this subpart apply?
§ 18.123
When is this subpart effective?
§ 18.124
How do I obtain a Letter of Authorization?
§ 18.125
What criteria does the Service use to evaluate Letter of
Authorization requests?
§ 18.126
What does a Letter of Authorization allow?
§ 18.127
What activities are prohibited?
§ 18.128
What are the mitigation, monitoring, and reporting
requirements?
§ 18.129
What are the information collection requirements?

Authority:

16 U.S.C. 1361 et seq.

Source:
39 FR 7262, Feb. 25, 1974, unless otherwise noted.
Subpart A—Introduction
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§ 18.1
Purpose of regulations.
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The regulations contained in this part implement the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1361–1407), which among other things,
restricts the taking, possession, transportation, selling, offering for
sale, and importing of marine mammals.
§ 18.2
Scope of regulations.
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(a) This part 18 applies solely to marine mammals and marine mammal
products as defined in §18.3. For regulations under the Act with respect
to cetacea (whales and porpoises), pinnipedia, other than walrus (seals
and sea lions), see 50 CFR part 216.
(b) The provisions in this part are in addition to, and are not in lieu
of, other regulations of this subchapter B which may require a permit or
prescribe additional restrictions or conditions for the importation,
exportation, and interstate transportation of wildlife. (See also part 13
of this subchapter.)
§ 18.3
Definitions.
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In addition to definitions contained in section 3 of the Act and in part
10 of this subchapter, and unless the context requires otherwise, in this
part 18:
Act means the Marine Mammal Protection Act of 1972, 86 Stat. 1027, 16
U.S.C. 1361–1407; Pub. L. 92–522.
Alaskan Native means a person defined in the Alaska Native Claims
Settlement Act (43 U.S.C. section 1603(b) (85 Stat. 588)) as a citizen of
the United States who is of one-fourth degree or more Alaska Indian
(including Tsimshian Indians enrolled or not enrolled in the Metlaktla
Indian Community), Eskimo, or Aleut blood, or combination thereof. The
term includes any Native, as so defined, either or both of whose adoptive
parents are not Natives. It also includes, in the absence of proof of a
minimum blood quantum, any citizen of the United States who is regarded as
an Alaska Native by the Native village or town of which he claims to be a
member and whose father or mother is (or, if deceased, was) regarded as
Native by any Native village or Native town. Any citizen enrolled by the
Secretary pursuant to section 5 of the Alaska Native Claims Settlement Act
shall be conclusively presumed to be an Alaskan Native for purposes of
this part.
Authentic native articles of handicrafts and clothing means items made by
an Indian, Aleut, or Eskimo that (a) are composed wholly or in some
significant respect of natural materials and (b) are significantly altered
from their natural form and are produced, decorated, or fashioned in the
exercise of traditional native handicrafts without the use of pantographs,
multiple carvers, or similar mass-copying devices. Improved methods of
production utilizing modern implements such as sewing machines or modern
techniques at a tannery registered pursuant to §18.23(c) may be used so
long as no large-scale mass-production industry results. Traditional
native handicrafts include, but are not limited to, weaving, carving,
stitching, sewing, lacing, beading, drawing, and painting. The formation
of traditional native groups, such as cooperatives, is permitted so long
as no large-scale mass production results.
Commercial fishing operation means the lawful harvesting of fish from the
marine environment for profit as part of an on-going business enterprise.
Such term shall not include sport fishing activities whether or not

carried out by charter boat or otherwise, and whether or not the fish so
caught are subsequently sold.
Endangered species means a species of marine mammal listed as “endangered”
pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L.
93–205 (see part 17 of this subchapter).
Incidental catch means the taking of a marine mammal (a) because it is
directly interfering with commercial fishing operations, or (b) as a
consequence of the steps used to secure the fish in connection with
commercial fishing operations: Provided, however, That a marine mammal so
taken must immediately be returned to the sea with a minimum of injury;
and Provided, further, That the taking of a marine mammal which otherwise
meets the requirements of this definition shall not be considered as
incidental catch of that mammal if it is used subsequently to assist in
commercial fishing operations.
Marine mammal means any specimen of the following species, whether alive
or dead, and any part thereof, including but not limited to, any raw,
dressed, or dyed fur or skin:
Scientific nameCommon nameDate listed
Ursus maritimus Polar bearDec. 21, 1972.
Enhydra lutris Sea otter
Do.
Odobenus rosmarus Walrus
Do.
Dugong dugon Dugong
Do.
Trichechus manatus West Indian manatee
Do.
Trichechus inunguis Amazonian manatee
Do.
Trichechus senegalensis West African manatee
Do.
Lutra felina Marine otterMar. 29, 1978.
Note: Common names given may be at variance with local usage.
Native village or town means any community, association, tribe, band,
clan, or group.
Pregnant means pregnant near term.
Subsistence means the use by Alaskan Natives of marine mammals taken by
Alaskan Natives for food, clothing, shelter, heating, transportation, and
other uses necessary to maintain the life of the taker or for those who
depend upon the taker to provide them with such subsistence.
Take means to harass, hunt, capture, collect, or kill, or attempt to
harass, hunt, capture, collect, or kill any marine mammal, including,
without limitation, any of the following: The collection of dead animals
or parts thereof; the restraint or detention of a marine mammal, no matter
how temporary; tagging a marine mammal; or the negligent or intentional
operation of an aircraft or vessel, or the doing of any other negligent or
intentional act which results in the disturbing or molesting of a marine
mammal.
Threatened species means a species of marine mammal listed as “threatened”
pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L.
93–205.
Wasteful manner means any taking or method of taking which is likely to
result in the killing or injuring of marine mammals beyond those needed
for subsistence purposes or for the making of authentic native articles of
handicrafts and clothing or which results in the waste of a substantial
portion of the marine mammal and includes without limitation the
employment of a method of taking which is not likely to assure the capture
or killing of a marine mammal, or which is not immediately followed by a
reasonable effort to retrieve the marine mammal.
[39 FR 7262, Feb. 25, 1974, as amended at 43 FR 13066, Mar. 29, 1978; 55
FR 14978, Apr. 20, 1990; 70 FR 48323, Aug. 17, 2005]
§ 18.4
Information collection requirements.

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(a) The Office of Management and Budget under 44 U.S.C. 3501 et seq. has
approved the information collection requirements contained in Subpart D
and assigned clearance number 1018–0022. The Service is collecting this
information to review and evaluate permit applications and make decisions
according to criteria established in various Federal wildlife conservation
statutes and regulations, on the issuance or denial of permits. The
applicant must respond to obtain or retain a permit.
(b) The Service estimated the public reporting burden for this collection
of information to vary from 15 minutes to 4 hours per response, with an
average of 1.028 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and maintaining
the data needed, and completing and reviewing the collection of
information. Send comments regarding this burden or any other aspect of
this collection of information, including suggestions for reducing the
burden, to the Service Information Collection Clearance Office, Fish and
Wildlife, Service Office of Management and Budget, Mail Stop 224,
Arlington Square, U.S. Department of the Interior, 1849 C Street, NW.,
Washington, DC 20240 and the Office of Management and Budget, Paperwork
Reduction Project (1018–0022), Washington, DC 20503.
[62 FR 7329, Feb. 18, 1997]
Subpart B—Prohibitions
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§ 18.11
Prohibited taking.
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Except as otherwise provided in subpart C, D, or H of this part 18, or
part 403, it is unlawful for:
(a) Any person, vessel, or conveyance subject to the jurisdiction of the
United States to take any marine mammal on the high seas, or
(b) Any person, vessel, or conveyance to take any marine mammal in waters
or on lands under the jurisdiction of the United States.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
§ 18.12
Prohibited importation.
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(a) Except as otherwise provided in subparts C and D of this part 18, it
is unlawful for any person to import any marine mammal or marine mammal
product into the United States.
(b) Regardless of whether an importation is otherwise authorized pursuant
to subparts C and D of this part 18, it is unlawful for any person to
import into the United States any:
(1) Marine mammal: (i) Taken in violation of the Act, or
(ii) Taken in another country in violation of the laws of that country;
(2) Any marine mammal product if: (i) The importation into the United
States of the marine mammal from which such product is made would be
unlawful under paragraph (b)(1) of this section, or
(ii) The sale in commerce of such product in the country of origin of the
product is illegal.
(c) Except in accordance with an exception referred to in subpart C and
§§18.31 and 18.32 of this part, it is unlawful to import into the United
States any:
(1) Marine mammal which was pregnant at the time of taking;
(2) Marine mammal which was nursing at the time of taking, or less than 8
months old, whichever occurs later;
(3) Specimen of an endangered or threatened species of marine mammals;
(4) Specimen taken from a depleted species or stock of marine mammals; or
(5) Marine mammal taken in an inhumane manner.
(d) It is unlawful to import into the United States any fish, whether

fresh, frozen, or otherwise prepared, if such fish was caught in a manner
proscribed by the Secretary of Commerce for persons subject to the
jurisdiction of the United States, whether or not any marine mammals were
in fact taken incident to the catching of the fish.
§ 18.13
Prohibited uses, possession, transportation, and sales.
top
Except as otherwise provided in the Act or these regulations, it is
unlawful for:
(a) Any person to use any port, harbor, or other place under the
jurisdiction of the United States for any purpose in any way connected
with a prohibited taking or any unlawful importation of any marine mammal
or marine mammal products;
(b) Any person to possess any marine mammal, or product therefrom, taken
in violation of the Act or these regulations;
(c) Any person to transport, purchase, sell, or offer to purchase or sell
any marine mammal or marine mammal product; or
(d) Any person subject to the jurisdiction of the United States to use in
a commercial fishery, any means or method of fishing in contravention of
regulations and limitations issued by the Secretary of Commerce for that
fishery to achieve the purposes of this Act.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
§ 18.14
Marine mammals taken before the Act.
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(a) Section 102(e) of the Act provides in effect that the Act shall not
apply to any marine mammal taken prior to December 21, 1972, or to any
marine mammal product consisting of, or composed in whole or in part of,
any marine mammal taken before such date. Such status may be established
by submitting to the Director prior to, or at the time of importation, an
affidavit containing the following:
(1) The Affiant's name and address;
(2) Identification of the Affiant;
(3) A description of the marine mammals or marine mammal products which
the Affiant desires to import;
(4) A statement by the Affiant that to the best of his knowledge and
belief, the marine mammals involved in the application were taken prior to
December 21, 1972;
(5) A statement by the Affiant in the following language:
The foregoing is principally based on the attached exhibits which, to the
best of my knowledge and belief, are complete, true and correct. I
understand that this affidavit is being submitted for the purpose of
inducing the Federal Government to permit the importation of _____ under
the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361–1407) and
regulations promulgated thereunder, and that any false statements may
subject me to the criminal penalties of 18 U.S.C. 1001.
(b) Either one of two exhibits shall be attached to such affidavit, and
will contain either:
(1) Records or other available evidence showing that the product consists
of or is composed in whole or in part of marine mammals taken prior to
December 21, 1972. Such records or other evidentiary material must include
information on how, when, where, and by whom the animals were taken, what
processing has taken place since taking, and the date and location of such
processing; or
(2) A statement from a government agency of the country of origin
exercising jurisdiction over marine mammals that any and all such mammals
from which the products sought to be imported were derived were taken
prior to December 21, 1972.
(c) Service agents, or Customs officers, may refuse to clear marine

mammals or marine mammal products for importation into the United States,
pursuant to §14.53 of this subchapter, until the importer can demonstrate,
by production of the affidavit referred in above or otherwise, that
section 102(e) of the Act applies to all affected items.
(d) This section has no application to any marine mammal or marine mammal
product intended to be imported pursuant to §18.21, §18.31 or §18.32 of
this part.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
Subpart C—General Exceptions
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§ 18.21
Actions permitted by international treaty, convention, or
agreement.
top
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
existent 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 in Washington on February 9, 1957, and the Fur
Seal Act of 1966, 16 U.S.C. 1151–1187, as, in each case, from time to time
amended.
§ 18.22
Taking by Federal, State or local government officials.
top
(a) A Federal, State or local government official or employee may take a
marine mammal in the course of his duties as an official or employee and
no permit shall be required, if such taking:
(1) Is accomplished in a humane manner;
(2) Is for the protection or welfare of such mammal or from the protection
of the public health or welfare; and
(3) Includes steps designed to insure return of such mammal, if not killed
in the course of such taking, to its natural habitat. In addition, any
such official or employee may, incidental to such taking, possess and
transport, but not sell or offer for sale, such mammal and use any port,
harbor or other place under the jurisdiction of the United States. All
steps reasonably practicable under the circumstances shall be taken by any
such employee or official to prevent injury or death to the marine mammal
as the result of such taking.
(b) Each taking permitted under this section should be included in a
written report, to be submitted to the Director every six months,
beginning December 31, 1973. Unless otherwise permitted by the Director,
the report shall contain a description of:
(1) The animal involved;
(2) The circumstances requiring the taking;
(3) The method of taking;
(4) The name and official position of the State official or employee
involved;
(5) The disposition of the animal, including in cases where the animal has
been retained in captivity, a description of the place and means of
confinement and the measures taken for its maintenance and care; and
(6) Such other information as the Director may require.
The reports shall be mailed to the Director, U.S. Fish and Wildlife
Service, U.S. Department of the Interior, Washington, DC 20240.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
§ 18.23
Native exemptions.

top
(a) Taking. Except as otherwise provided in part 403 of this title, any
Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast
of the North Pacific Ocean or the Arctic Ocean may take any marine mammal
without a permit, subject to the restrictions contained in this section,
if such taking is:
(1) For subsistence purposes, or
(2) For purposes of creating and selling authentic native articles of
handicraft and clothing, and
(3) In each case, not accomplished in a wasteful manner.
(b) Restrictions. (1) “Except for a transfer to a duly authorized
representative of the Regional Director of the U.S. Fish and Wildlife
Service for scientific research purposes, no marine mammal taken for
subsistence may be sold or otherwise transferred to any person other than
an Alaskan Native or delivered, carried, transported, or shipped in
interstate or foreign commerce, unless:
(i) It is being sent by an Alaskan Native directly or through a registered
agent to a tannery registered under paragraph (c) of this section for the
purpose of processing, and will be returned directly or through a
registered agent to the Alaskan Native; or
(ii) It is sold or transferred to a registered agent in Alaska for resale
or transfer to an Alaskan Native; or
(iii) It is an edible portion and it is sold in an Alaskan Native village
or town.
(2) “Except for a transfer to a duly authorized representative of the
Regional Director of the U.S. Fish and Wildlife Service for scientific
research purposes, no marine mammal taken for purposes of creating and
selling authentic Native articles of handicraft and clothing may be sold
or otherwise transferred to any person other than an Indian, Aleut or
Eskimo, or delivered, carried, transported or shipped in interstate or
foreign commerce, unless:
(i) It is being sent by an Indian, Aleut or Eskimo directly or through a
registered agent to a tannery registered under paragraph (c) of this
section for the purpose of processing, and will be returned directly or
through a registered agent to the Indian, Aleut or Eskimo; or
(ii) It is sold or transferred to a registered agent for resale or
transfer to an Indian, Aleut, or Eskimo; or
(iii) It has been first transformed into an authentic Native article of
handicraft or clothing; or
(iv) It is an edible portion and it is sold (A) in an Alaskan Native
village or town or (B) to an Alaskan Native for his consumption.
(c) The restriction in paragraph (b) shall not apply to parts or products
of the Pacific walrus ( Odobenis rosmarus ) to the extent that the waiver
of the moratorium and the approved State/Federal regulations relating to
the taking and importation of walrus permits the delivery, sale,
transportation or shipment of parts or products of the Pacific walrus in
interstate or foreign commerce.
(d) Any tannery, or person who wishes to act as an agent, within the
jurisdiction of the United States may apply to the Director 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:
(1) The name and address of the applicant;
(2) A description of the applicant's procedures for receiving, storing,
processing, and shipping materials;
(3) 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;
(4) Such other information as the Director may request;
(5) 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.
1361–1407) and regulations promulgated thereunder, and that any false
statement may subject me to the criminal penalties of 18 U.S.C. 1001.
(6) The signature of the applicant.
The sufficiency of the application shall be determined by the Director,
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 the
conditions as the Director prescribes, which may include, but are not
limited to provisions regarding records, inventory segregation, reports,
and inspection. The Director may charge a reasonable fee for such
applications, including an appropriate apportionment of overhead and
administrative expenses of the Department of Interior.
(e) Notwithstanding the preceding provisions of this section, whenever,
under the Act, the Secretary determines any species or stock of marine
mammals to be depleted, he may prescribe regulations pursuant to section
103 of the Act upon the taking of such marine mammals by any Indian,
Aleut, or Eskimo and, after promulgation of such regulations, all takings
of such marine mammals by such person shall conform to such regulations.
(f) Marking, tagging, and reporting. (1) In addition to definitions
contained in the Act, 50 CFR 18.3, and 50 CFR 18.27, in this paragraph
(f):
(i) The term “marking and tagging” of marine mammals as specified in
section 109(i) of the Act refers to the actual physical attachment of an
approved band or other such marking device or technique to the raw or
unhandicrafted (including unmarked tanned skins) skin and skull of polar
bears, the tusks of walruses, and the skin and skull of sea otters; and
(ii) The term “reporting” means the collection by Service personnel or the
Service's authorized local representatives of biological data, harvest
data, and other information regarding the effect of taking of marine
mammals on populations, the collection of which the Service determines to
be necessary for management purposes. Reporting will be done on forms
provided by the Service upon presentation for marking, tagging, and
reporting purposes of the marine mammal(s) or specified raw or
unhandicrafted parts thereof.
(2) Notwithstanding the preceding provisions of this section, but subject
to the provisions and conditions contained in this paragraph, no polar
bear, walrus, or sea otter, or any parts thereof, taken or collected by an
Alaskan Native for subsistence purposes or for purposes of creating and
selling authentic Native articles of handicrafts and clothing may be
possessed, transported within, or exported from Alaska unless the
animal(s), or specified parts thereof, have been reported to, and properly
marked and tagged by, Service personnel or the Service's authorized local
representative; except:
(i) An Alaskan Native that harvested or participated in the harvest of a
polar bear, sea otter, or walrus and who possesses the animal, or any
parts thereof, may possess the unmarked, untagged, and unreported
animal(s), or parts thereof, for a period of time not to exceed 30 days
from the time of taking for the purpose of transporting the specified
parts to Service personnel or the Service's local authorized
representative for marking, tagging, and reporting;

(ii) Alaskan Natives and registered agents/tanneries may possess the
specified unmarked or untagged raw, unhandicrafted, or tanned parts
thereof for a period of time not to exceed 180 days from the effective
date of this rulemaking for the purpose of transporting to Service
personnel or the Service's local authorized representative for marking and
tagging if the specified parts thereof were taken or possessed between
December 21, 1972, and the effective date of this regulation. There is no
reporting requirement for marine mammals, or specified parts thereof,
covered by this paragraph.
(3) Those unmarked, untagged, and unreported specified parts of polar
bear, walrus, and sea otter, that must be presented to Service personnel
or an authorized Service representative for marking, tagging, and
reporting are as follows:
(i) Polar bear—skin and skull.
(ii) Walrus—tusks.
(iii) Sea otter—skin and skull.
(4) The locations where Service personnel or the Service's authorized
local representative will be available for marking, tagging, and reporting
purposes will be announced annually by the Alaska Regional Director. Local
persons authorized to act as representatives for marking, tagging, and
reporting purposes in the absence of Service personnel will also be
announced annually by the Alaska Regional Director.
(5) Marks and tags will be attached or applied to the skins, skulls, and
tusks of the marine mammal(s) in such a manner as to maximize their
longevity and minimize their adverse effects to the appearance of the
specified parts that might result due to hindering the tanning or
handicrafting of skins, or the handicrafting of tusks or skulls. If the
tag or mark comes off of the specified part the person in possession of
the part shall have 30 days to present the part and broken tag or other
marking device to the Service or the Service's authorized local
representative for remarking or retagging purposes.
(6) Marks and tags for skins, skulls, and tusks will be provided by the
Service. They will be numbered for accountability and of such design,
construction, and material so as to maximize their durability and
longevity on the specified parts.
(7) Data collected pursuant to this paragraph will be reported on forms
provided by the Service and maintained in the Service's Regional Office,
Anchorage, Alaska. The Service will summarize the data annually and make
it publicly available. The data will also be included in the Service's
annual report to Congress as set forth in section 103(f) of the Act.
(8) All items of research (e.g., radio collars, satellite transmitters,
tags, etc.) that were attached to animals taken by Alaskan Natives must be
returned to Service personnel or an authorized Service representative at
the time the animal, or specified unhandicrafted parts thereof, are
presented for marking, tagging, and reporting. No penalty will be imposed
under the Act for a violation of this paragraph. However, penalties may be
sought by the Service under other applicable Federal laws governing the
possession and use of Federal property.
(9) Pursuant to this paragraph (f), the following specific conditions and
provisions apply:
(i) Marking, tagging, and reporting of polar bears or specified parts
thereof.
(A) The skin and skull of an animal must accompany each other when
presented for marking, tagging, and reporting except that the skin and
skull of an animal need not be presented together for marking and tagging
purposes if taken between December 21, 1972, and the effective date of
this regulation.

(B) Except as provided in paragraph (f)(2)(ii) of this section, the
following information must be reported by Alaskan Natives when presenting
polar bears, or specified parts thereof, for marking and tagging: sex of
animal, date of kill, and location of kill.
(C) Both the skin and the skull will be marked and tagged and a
rudimentary pre-molar tooth may be removed from the skull and retained by
the Service. The skin must have the sex identifiers, such as vaginal
orifice, teats, or penal sheath or baculum, either attached to, or
accompanying the skin.
(D) The skull must be skinned out and the skin may be frozen or unfrozen
when presented for marking, tagging, and reporting. If the skin is frozen,
the sex identifiers, such as vaginal orifice, teats, penal sheath or
baculum, must be visible.
(E) Marks and tags must remain affixed to the skin through the tanning
process and until the skin has been severed into parts for crafting into
handicrafts or for as long as is practical during the handicrafting
process.
(ii) Marking, tagging, and reporting of walrus or specified parts thereof.
(A) The paired tusks of the animal(s) must, to the maximum extent
practical, accompany each other when presented for marking, tagging, and
reporting purposes, except that paired tusks need not be presented
together for marking and tagging purposes if taken between December 21,
1972, and the effective date of this regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the
following information must be reported by Alaskan Natives when presenting
walrus, or specified parts thereof, for marking and tagging: date of take,
sex of animal, whether live-killed, floating-dead, or beach-found, and
location of the take or location of animal if found floating and dead or
beach-found.
(C) Marks and/or tags must remain affixed to the tusks until they have
been crafted into a handicraft or for as long as is practical during the
handicrafting process.
(iii) Marking, tagging, and reporting of sea otter or specified parts
thereof.
(A) The skin and skull of an animal must accompany each other when
presented for marking, tagging, and reporting, except that the skin and
skull of an animal need not be presented together if taken between
December 21, 1972, and the effective date of this regulation.
(B) Except as provided in paragraph (f)(2)(ii) of this section, the
following information must be reported by Alaskan Natives when presenting
sea otters, or specified parts thereof, for marking and tagging: date of
kill, sex of animal, and location of kill.
(C) Both the skin and skull will be marked and tagged and a rudimentary
pre-molar tooth may be removed from the skull and retained by the Service.
The skin must have the sex identifiers, such as vaginal orifice, teats, or
penal sheath or baculum, either attached to, or accompanying the skin.
(D) The skull must be skinned out and the skin may be frozen or unfrozen
when presented for marking, tagging, and reporting. If the skin is frozen,
the sex identifiers, such as vaginal orifice, teats, or penal sheath or
baculum, must be visible.
(E) Marks and tags must remain affixed to the skin through the tanning
process and until the skin has been severed into parts for crafting into
handicrafts or for as long as is practical during the handicrafting
process.
(10) No person may falsify any information required to be set forth on the
reporting form when the marine mammal(s), or specified parts thereof, are
presented as required by these regulations.

(11) Possession by any person of marine mammal(s), or any parts thereof,
in violation of the provisions and conditions of this §18.23(f) is subject
to punishment under the penalties provided for in section 105(a)(1) of the
Act.
(12) The information collection requirements contained in this §18.23(f)
have been approved by the Office of Management and Budget under 44 U.S.C.
3501 et seq. and assigned clearance number 1018–0066. The information is
mandatory in order to have the marine mammal parts “marked and tagged,”
and thereby made eligible for continued lawful possession. Non-response
may result in the Service determining the wildlife to be illegally
possessed and subject the individual to penalties under this title.
[39 FR 7262, Feb. 25, 1974, as amended at 40 FR 59444, Dec. 24, 1975; 45
FR 54057, Aug. 14, 1980; 51 FR 17981, May 16, 1986; 53 FR 24283, June 28,
1988]
§ 18.24
Taking incidental to commercial fishing operations.
top
Persons may take marine mammals incidental to commercial fishing
operations until October 21, 1974: Provided, That such taking is by means
of equipment and techniques prescribed in regulations issued by the
Secretary of Commerce. However, any marine mammal taken as an incidental
catch may not be retained. It shall be the immediate goal that the
incidental kill or incidental serious injury of marine mammals permitted
in the course of commercial fishing operations be reduced to insignificant
levels approaching a zero mortality and serious injury rate.
§ 18.25
Exempted marine mammals or marine mammal products.
top
(a) The provisions of the Act and these regulations shall not apply:
(1) To any marine mammal taken before December 21, 1972, or
(2) To any marine mammal product if the marine mammal portion of such
product consists solely of a marine mammal taken before such date.
(b) The prohibitions contained in §18.12(c) (3) and (4) shall not apply to
marine mammals or marine mammal products imported into the United States
before the date on which notice is published in theFederal Registerof the
proposed rulemaking with respect to the designation of the species of
stock concerned as depleted or endangered:
(c) Section 18.12(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.
§ 18.26
Collection of certain dead marine mammal parts.
top
(a) Any bones, teeth or ivory of any dead marine mammal may be collected
from a beach or from land within1/4of a mile of the ocean. The term
“ocean” includes bays and estuaries.
(b) 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 U.S. Fish and Wildlife Service.
(c) 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.
(d) Title to any marine mammal parts collected under this section is not
transferable, unless consented to in writing by the agent referred to in
paragraph (b) of this section.
[39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986]
§ 18.27
Regulations governing small takes of marine mammals incidental
to specified activities.
top

(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]
Subpart D—Special Exceptions
top
§ 18.30
Polar bear sport-hunted trophy import permits.
top
(a) Application procedure. You, as the hunter or heir of the hunter's
estate, must submit an application for a permit to import a trophy of a
polar bear taken in Canada to the U.S. Fish and Wildlife Service, Office
of Management Authority, 4401 N. Fairfax Drive, Arlington, Virginia 22203.
You must use an official application (Form 3–200) provided by the Service
and must include as an attachment all of the following additional
information:
(1) Certification that:
(i) You or the deceased hunter took the polar bear as a personal
sport-hunted trophy;
(ii) You will use the trophy only for personal display purposes;
(iii) The polar bear was not a pregnant female, a female with dependent
nursing cub(s) or a nursing cub (such as in a family group), or a bear in
a den or constructing a den when you took it; and
(iv) For a polar bear taken after April 30, 1994, you made sure the gall
bladder and its contents were destroyed;
(2) Name and address of the person in the United States receiving the
polar bear trophy if other than yourself;
(3) For a polar bear received as an inheritance, documentation to show
that you are the legal heir of the decedent who took the trophy;
(4) Proof that you or the decedent legally harvested the polar bear in
Canada as shown by one of the following:
(i) A copy of the Northwest Territories (NWT) or Nunavut Territory hunting
license and tag number;
(ii) A copy of the Canadian CITES export permit that identifies the polar
bear by hunting license and tag number;
(iii) A copy of the NWT or Nunavut Territory export permit; or
(iv) A certification from the Department of Resources, Wildlife, and
Economic Development, Northwest Territories, or the Department of
Sustainable Development, Nunavut Territory, that you or the decedent
legally harvested the polar bear, giving the tag number, location
(settlement and population), and season you or the decedent took the bear;
(5) An itemized description of the polar bear parts you wish to import,
including size and the sex of the polar bear;
(6) The month and year the polar bear was sport hunted;
(7) The location (nearest settlement or community) where the bear was
sport hunted;
(8) For a female bear or a bear of unknown sex that was taken before
January 1, 1986, documentary evidence that the bear was not pregnant at
the time of take, including, but not limited to, documentation, such as a
hunting license or travel itinerary, that shows the bear was not taken in
October, November, or December or that shows that the location of the hunt

did not include an area that supported maternity dens; and
(9) For a female bear, bear of unknown sex, or male bear that is less than
6 feet in length (from tip of nose to the base of the tail) that was taken
prior to the 1996/97 NWT polar bear harvest season, available
documentation to show that the bear was not nursing, including, but not
limited to, documentation, such as a certification from the NWT, that the
bear was not taken while part of a family group.
(b) Definitions. In addition to the definitions in this paragraph, the
definitions in 50 CFR 10.12, 18.3, and 23.3 apply to this section.
(1) Sport-hunted trophy means a mount, rug or other display item composed
of the hide, hair, skull, teeth, baculum, bones, and claws of the specimen
which was taken by the applicant or decedent during a sport hunt for
personal, noncommercial use and does not include any internal organ of the
animal, including the gall bladder. Articles made from the specimen, such
as finished or unfinished, worked, manufactured, or handicraft items for
use as clothing, curio, ornamentation, jewelry, or as a utilitarian item
are not considered trophy items.
(2) Management agreement means a written agreement between parties that
share management responsibilities for a polar bear population which
describes what portion of the harvestable quota will be allocated to each
party and other measures which may be taken for the conservation of the
population, such as harvest seasons, sex ratio of the harvest, and
protection of females and cubs.
(c) Procedures for issuance of permits and modification, suspension or
revocation of permits. We, the Service, shall suspend, modify or revoke
permits issued under this section:
(1) In accordance with regulations contained in §18.33; and
(2) If, in consultation with the appropriate authority in Canada, we
determine that the sustainability of Canada's polar bear populations is
being adversely affected or that sport hunting may be having a detrimental
effect on maintaining polar bear populations throughout their range.
(d) Issuance criteria. In deciding whether to issue an import permit for a
sport-hunted trophy, we must determine in addition to the general criteria
in part 13 of this subchapter whether:
(1) You previously imported the specimen into the United States without a
permit;
(2) The specimen meets the definition of a sport-hunted trophy in
paragraph (b) of this section;
(3) You legally harvested the polar bear in Canada;
(4) Canada has a monitored and enforced sport-hunting program consistent
with the purposes of the 1973 International Agreement on the Conservation
of Polar Bears;
(5) Canada has a sport-hunting program, based on scientifically sound
quotas, ensuring the maintenance of the affected population at a
sustainable level; and
(6) The export and subsequent import:
(i) Are consistent with the provisions of the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES) and other
international agreements and conventions; and
(ii) Are not likely to contribute to illegal trade in bear parts,
including for bears taken after April 30, 1994, that the gall bladder and
its contents were destroyed.
(e) Additional permit conditions. Your permit to import a sport-hunted
trophy of a polar bear taken in Canada is subject to the permit conditions
outlined in §18.31(d) and the following additional permit conditions:
(1) You, the permittee, may not import internal organs of the polar bear,
including the gall bladder;

(2) After import you may not alter or use the trophy in a manner
inconsistent with the definition of a sport-hunted polar bear trophy as
given in §18.30(b);
(3) You may not import a sport-hunted trophy if the polar bear at the time
you or the decedent took it was:
(i) A nursing bear or a female with nursing young (i.e., part of a family
group);
(ii) A pregnant female; or
(iii) A bear moving into a den or in a den;
(4) You must present to Service personnel at the time of import a valid
CITES document from the country of export or re-export;
(5) You must comply with the following import procedures:
(i) Import the sport-hunted trophy through a designated port for wildlife
imports (see §14.12 of this subchapter) during regular business hours,
except for full mount trophies that have been granted an exception to
designated port permit requirements under §14.32 of this subchapter;
(ii) Not send the trophy through the international mail; and
(iii) Notify Service personnel at the port at least 48 hours before the
import (see §14.54 of this subchapter) and make arrangements for Service
personnel to affix a tag in accordance with paragraph (e)(7) of this
section prior to being cleared (see §14.52 of this subchapter);
(6) You must import all parts of a single trophy at the same time;
(7) The following tagging/marking procedures apply:
(i) Service personnel must affix a permanently locking tag that contains a
unique serial number and the common name “polar bear” to the hide which
must remain fixed indefinitely to the hide as proof of legal import; and
(ii) Service personnel must permanently mark upon import the parts of the
trophy other than the hide, such as the skull and bones, with the hide tag
number; and
(8) If the tag comes off the hide, you must within 30 days:
(i) Contact the nearest Service office at a designated port or a Law
Enforcement office as given in §10.22 of this subchapter to schedule a
time to present the trophy for retagging;
(ii) Provide as proof that the trophy had been tagged and legally imported
a copy of the:
(A) Canceled CITES export permit or re-export certificate;
(B) Canceled U.S. import permit issued under this section; or
(C) Cleared wildlife declaration form (3–177); and
(iii) Present either the broken tag, or if the tag was lost, a signed
written explanation of how and when the tag was lost.
(f) Duration of permits. The permit will be valid for no more than one
year from the date of issuance.
(g) Fees. (1) You must pay the standard permit processing fee as given in
§13.11(4) when filing an application.
(2) You must pay the issuance fee of $1,000 when we notify you the
application is approved. We cannot issue an import permit until you pay
this fee. We will use the issuance fee to develop and implement
cooperative research and management programs for the conservation of polar
bears in Alaska and Russia under section 113(d) of the Marine Mammal
Protection Act.
(h) Scientific review. (1) We will undertake a scientific review of the
impact of permits issued under this section on the polar bear populations
in Canada within 2 years of March 20, 1997.
(i) The review will provide an opportunity for public comment and include
a response to the public comment in the final report; and
(ii) We will not issue permits under this section if we determine, based
upon scientific review, that the issuance of permits under this section is

having a significant adverse impact on the polar bear populations in
Canada; and
(2) After the initial review, we may review whether the issuance of
permits under this section is having a significant adverse impact on the
polar bear populations in Canada annually in light of the best scientific
information available. The review must be completed no later than January
31 in any year a review is undertaken.
(i) Findings. Polar bear sport-hunted trophies may only be imported after
issuance of an import permit, and in accordance with the following
findings and conditions:
(1) We have determined that the Northwest Territories and Nunavut
Territory, Canada, have a monitored and enforced sport-hunting program
that meets issuance criteria of paragraphs (d) (4) and (5) of this section
for the following populations: Southern Beaufort Sea, Northern Beaufort
Sea, Viscount Melville Sound (subject to the lifting of the moratorium in
this population), Western Hudson Bay, M'Clintock Channel (only for polar
bears lawfully taken on or before May 31, 2000), Lancaster Sound, and
Norwegian Bay, and that:
(i) For the Southern Beaufort Sea population, no bears are taken west of
the equidistant line of the Beaufort Sea;
(ii) For all populations, females with cubs, cubs, or polar bears moving
into denning areas or already in dens are protected from taking by hunting
activities; and
(iii) For all populations, management agreements among all management
entities with scientifically sound quotas are in place; and
(2) Any sport-hunted trophy taken in the Northwest Territories, Canada,
between December 21, 1972, and April 30, 1994, may be issued an import
permit when:
(i) From an approved population listed in paragraph (i)(1); and
(ii) The issuance criteria of paragraph (d) (1), (2), (3), and (6) of this
section are met.
[62 FR 7329, Feb. 18, 1997, as amended at 64 FR 1539, Jan. 11, 1999; 66 FR
1907, Jan. 10, 2001; 66 FR 50851, Oct. 5, 2001]
§ 18.31
Scientific research permits and public display permits.
top
The Director may, upon receipt of an application and in accordance with
the issuance criteria of this section, issue a permit authorizing the
taking and importation of marine mammals for scientific research purposes
or for public display.
(a) Application procedure. Applications for permits to take and import
marine mammals for scientific research purposes or for public display
shall be submitted to the Director. Each such application must contain the
general information and certification required by §13.12(a) of this
subchapter plus the following additional information:
(1) A statement of the purpose, date, location and manner of the taking or
importation;
(2) A description of the marine mammal or the marine mammal products to be
taken or imported, including the species or subspecies involved; the
population stock, when known, the number of specimens or products (or the
weight thereof, where appropriate); and the anticipated age, size, sex,
and condition (i.e., whether pregnant or nursing) of the animals involved;
(3) If the marine mammal is to be taken and transported alive, a complete
description of the manner of transportation, care and maintenance,
including the type, size, and construction of the container or artificial
environment; arrangements for feeding and sanitation; a statement of the
applicant's qualifications and previous experience in caring for and
handling captive marine mammals and a like statement as to the

qualifications of any common carrier or agent to be employed to transport
the animal; and a written certification of a licensed veterinarian
knowledgeable in the field of marine mammals that he has personally
reviewed the arrangements for transporting and maintaining the animals and
that in his opinion they are adequate to provide for the well-being of the
animal;
(4) If the application is for a scientific research permit, a detailed
description of the scientific research project or program in which the
marine mammal or marine mammal product is to be used including a copy of
the research proposal relating to such program or project and the names
and addresses of the sponsor or cooperating institution and the scientists
involved;
(5) If the application is for a scientific research permit, and if the
marine mammal proposed to be taken or imported is listed as an endangered
or threatened species or has been designated by the Secretary as depleted,
a detailed justification of the need for such a marine mammal, including a
discussion of possible alternatives, whether or not under the control of
the applicant; and
(6) If the application is for a public display permit, a detailed
description of the proposed use to which the marine mammal or marine
mammal product is to be put, including the manner, location, and times of
display, whether such display is for profit, an estimate of the numbers
and types of persons who it is anticipated will benefit for such display,
and whether and to what extent the display is connected with educational
or scientific programs. There shall also be included a complete
description of the enterprise seeking the display permit and its
educational, and scientific qualifications, if any.
(b) Review by Marine Mammal Commission. Upon receipt of an application the
Director shall forward the application to the Marine Mammal Commission
together with a request for the recommendations of the Commission and the
Committee of Scientific Advisors on Marine Mammals. In order to comply
with the time limits provided in these regulations, the Director shall
request that such recommendation be submitted within 30 days of receipt of
the application by the Commission. If the Commission or the Committee, as
the case may be, does not respond within 30 days from the receipt of such
application by the Commission, the Director shall advise the Commission in
writing that failure to respond within 45 days from original receipt of
the application (or such longer time as the Director may establish) shall
be considered as a recommendation from the Commission and the Committee
that the permit be issued. The Director may also consult with any other
person, institution or agency concerning the application.
(c) Issuance criteria. Permits applied for under this section shall be
issued, suspended, modified and revoked pursuant to regulations contained
in §18.33. In determining whether to issue a scientific research permit,
the Director shall consider whether the proposed taking or importation
will be consistent with the policies and purposes of the Act; and whether
the granting of the permit is required to further a bona fide and
necessary or desirable scientific purpose, taking into account the
benefits anticipated to be derived from the scientific research
contemplated and the effect of the purposed taking or importation on the
population stock and the marine ecosystem. In determining whether to issue
a public display permit, the Director shall consider whether the proposed
taking or importation will be consistent with the policies and purposes of
the Act; whether a substantial public benefit will be gained from the
display contemplated, taking into account the manner of the display and
the anticipated audience on the one hand, and the effect of the proposed
taking or importation on the population stocks of the marine mammal in

question and the marine ecosystem on the other; and the applicant's
qualifications for the proper care and maintenance of the marine mammal or
the marine mammal product, and the adequacy of his facilities.
(d) Additional permit conditions. In addition to the general conditions
set forth in part 13 of this subchapter B, permits issued under this
section shall be subject to the following conditions:
(1) Any permit issued under these regulations must be in the possession of
the person to whom it is issued (or an agent of such person) during:
(i) The time of the authorized taking or importation;
(ii) The period of any transit of such person or agent which is incidental
to such taking or importation; and
(iii) Any other time while any marine mammal taken or imported under such
permit is in the possession of such person or agent.
(2) A duplicate copy of the issued permit must be physically attached to
the container, package, enclosure, or other means of containment, in which
the marine mammal is placed for purposes of storage, transit, supervision,
or care.
(e) Tenure of permits. The tenure of permits for scientific research or
public display shall be designated on the face of the permit.
§ 18.32
Waiver of the moratorium.
top
See subpart F (Waiver of the moratorium; State laws and regulations) and
subpart G (Notice and Hearing on section 103 Regulations) for procedures
regarding waivers of the moratorium in those circumstances where a state
provides an acceptable management program for a species or population
stock within its jurisdiction.
[40 FR 59442, Dec. 24, 1975]
§ 18.33
Procedures for issuance of permits and modification, suspension,
or revocation thereof.
top
(a) Whenever application for a permit is received by the director which
the director deems sufficient, he shall, as soon as practicable, publish a
notice thereof in theFederal Register.Such notice shall set forth a
summary of the information contained in such application. Any interested
party may, within 30 days after the date of publication of such notice,
submit to the director his written data or views with respect to the
taking or importation proposed in such application and may request a
hearing in connection with the action to be taken thereon.
(b) If the request for a hearing is made within the 30-day period referred
to in paragraph (a) of this section, or if the director determines that a
hearing would otherwise be advisable, the director may, within 60 days
after the date of publication of the notice referred to in paragraph (a)
of this section, afford to such requesting party or parties an opportunity
for a hearing. Such hearing shall also be open to participation by any
interested members of the public. Notice of the date, time, and place of
such hearing shall be published in theFederal Registernot less than 15
days in advance of such hearing. Any interested person may appear in
person or through representatives at the hearing and may submit any
relevant material, data, views, comments, arguments, or exhibits. A
summary record of the hearing shall be kept.
(c) As soon as practicable but not later than 30 days after the close of
the hearing (or if no hearing is held, as soon as practicable after the
end of the 30 days succeeding publication of the notice referred to in
paragraph (a) of this section the director shall issue or deny issuance of
the permit. Notice of the decision of the director shall be published in
theFederal Registerwithin 10 days after the date of such issuance or
denial. Such notice shall include the date of the issuance or denial and

indicate where copies of the permit, if issued, may be obtained.
(d) Any permit shall be subject to modification, suspension, or revocation
by the director in whole or in part in accordance with these regulations
and the terms of such permits. The permittee shall be given written notice
by registered mail, return receipt requested, of any proposed
modification, suspension, or revocation. Such notice shall specify:
(1) The action proposed to be taken along with a summary of the reasons
therefor;
(2) In accordance with 5 U.S.C. 558, the steps which the permittee may
take to demonstrate or achieve compliance with all lawful requirements;
and
(3) That the permittee is entitled to a hearing thereon if a written
request for such a hearing is received by the Director within 10 days
after receipt of the aforesaid notice or such other later date as may be
specified in the notice to the permittee. The time and place of the
hearing, if requested by the permittee, shall be determined by the
director and a written notice thereof given to the permittee by registered
mail, return receipt requested, not less than 15 days prior to the date of
hearing specified. The director may, in his discretion, allow
participation at the hearing by interested members of the public. The
permittee and other parties participating may submit all relevant
material, data, views, comments, arguments, and exhibits at the hearing. A
summary record shall be kept of any such hearing.
(e) The Director shall make a decision regarding the proposed
modification, suspension, or revocation, as soon as practicable after the
close of the hearing, or if no hearing is held, as soon as practicable
after the close of the 10 day period during which a hearing could have
been requested. Notice of the modification, suspension, or revocation
shall be published in theFederal Registerwithin 10 days from the date of
the Director's decision. In no event shall the proposed action take effect
until notice of the Director's decision is published in theFederal
Register.
Subpart E—Depleted Species or Stocks [Reserved]
top
Subpart F—Transfer of Management Authority to States
top
Note: Regulations governing the transfer of management authority to States
pursuant to section 109 of the Marine Mammal Protection Act for marine
mammal species under the jurisdiction of the Secretary of the Interior are
found at part 403 of this title.
[48 FR 22456, May 18, 1983]
Subpart G—Notice and Hearing on Section 103 Regulations
top
Source:
41 FR 5396, Feb. 6, 1976, unless otherwise noted.
§ 18.70
Basis and purpose.
top
(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal
Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b))
and these regulations authorize the Director, U.S. Fish and Wildlife
Service, to: (1) Impose regulations governing the taking of marine mammals
incidental to commercial fishing operations; (2) waive the moratorium and
adopt regulations with respect to the taking and importing of animals from
each species of marine mammals under his jurisdiction; and (3) prescribe
regulations governing the taking of depleted marine mammals by any Indian,
Aleut or Eskimo, respectively. In prescribing regulations to carry out the
provisions of said sections, the act refers the Director to section 103
(16 U.S.C. 1373). In accordance with section 103(d), regulations must be

made on the record after opportunity for an agency hearing on such
regulations and, in the case of a waiver, on the determination by the
Director to waive the moratorium pursuant to section 101(a)(3)(A) (16
U.S.C. 1371(a)(3)(A)).
(b) [Reserved]
§ 18.71
Definitions.
top
Definitions shall be the same as in subpart A of this part except as
follows:
(a) Party means for the purposes of this subpart:
(1) The Director or his representative; or
(2) A person who has notified the Director by specified dates of his or
her intent to participate in the hearing pursuant to §§18.75 and 18.84(b).
(b) Presiding officer means, for the purposes of this subpart, an
administrative law judge of the Office of Hearings and Appeals appointed
in accordance with 5 U.S.C. 3105.
(c) Witness means, for the purposes of this subpart, any person who
provides direct testimony on the proposed regulations and waiver. A person
may be both a party and a witness.
§ 18.72
Scope of regulations.
top
The procedural regulations in this subpart govern the practice and
procedure in hearings held under section 103(d) of the Act. These hearings
will be governed by the provisions of sections 556 and 557 of the
Administrative Procedure Act (5 U.S.C. 556 and 557). The regulations shall
be construed to secure the just, speedy, and inexpensive determination of
all issues raised with respect to any waiver and/or regulation proposed
pursuant to section 103(d) of the act in a manner which gives full
protection to the rights of all persons affected thereby.
§ 18.73
Burden of proof.
top
The proponents of the proposed regulations and waiver must demonstrate
that any taking or importation of any marine mammal under such proposed
regulations and waiver would be consistent with the act.
§ 18.74
Notice of hearing.
top
(a) A notice of hearing on any proposed regulations shall be published in
theFederal Register,together with the Director's proposed determination to
waive the moratorium pursuant to section 101(a)(3)(A) (16 U.S.C.
1371(a)(3)(A)), where applicable.
(b) The notice shall state:
(1) The nature of the hearing;
(2) The place and date of the hearing. The date shall not be less than 60
days after publication of notice of the hearing;
(3) The legal authority under which the hearing is to be held;
(4) The proposed regulations and waiver, where applicable, and a summary
of the statements required by section 103(d) of the Act (16 U.S.C.
1373(d));
(5) Issues of fact which may be involved in the hearing;
(6) If an Environmental Impact Statement is required, the date of
publication of the Statement and the times and place(s) where the
Statement and comments thereon may be viewed and copied;
(7) Any written advice received from the Marine Mammal Commission;
(8) The times and place(s) where records and submitted direct testimony
will be kept for public inspection, along with appropriate references to
any other documents;
(9) The final date for filing with the Director a notice of intent to

participate in the hearing pursuant to §18.75;
(10) The final date for submission of direct testimony on the proposed
regulations and waiver, if applicable, and the number of copies required;
(11) The docket number assigned to the case which shall be used in all
subsequent proceedings; and
(12) The place and date of the prehearing conference.
§ 18.75
Notification by interested persons.
top
Any person desiring to participate as a party shall notify the Director,
by certified mail, on or before the date specified in the notice of
hearing.
§ 18.76
Presiding officer.
top
(a) Upon publication of the notice of hearing pursuant to §18.74, the
Office of Hearings and Appeals shall appoint a presiding officer pursuant
to 5 U.S.C. 3105. No individual who has any conflict of interest,
financial or otherwise, shall serve as presiding officer in such
proceeding.
(b) The presiding officer, in any proceeding under this subpart, shall
have power to:
(1) Change the time and place of the hearing and adjourn the hearing;
(2) Evaluate direct testimony submitted pursuant to these regulations,
make a preliminary determination of the issues, conduct a prehearing
conference to determine the issues for the hearing agenda, and cause to be
published in theFederal Registera final hearing agenda;
(3) Rule upon motions, requests and admissibility of direct testimony;
(4) Administer oaths and affirmations, question witnesses and direct
witnesses to testify;
(5) Modify or waive any rule (after notice) when determining no party will
be prejudiced;
(6) Receive written comments and hear oral arguments;
(7) Render a recommended decision; and
(8) Do all acts and take all measures, including regulation of media
coverage, for the maintenance of order at and the efficient conduct of the
proceeding.
(c) In case of the absence of the original presiding officer or his
inability to act, the powers and duties to be performed by the original
presiding officer under this part in connection with a proceeding may,
without abatement of the proceeding, be assigned to any other presiding
officer by the Office of Hearings and Appeals unless otherwise ordered by
the Director.
(d) The presiding officer shall withdraw from the proceeding upon his own
motion or upon the filing of a motion by a party under §18.76(e) if he
deems himself disqualified under recognized canons of judicial ethics.
(e) A presiding officer may be requested to withdraw at any time prior to
the recommended decision. If there is filed by a party in good faith a
timely and sufficient affidavit alleging the presiding officer's personal
bias, malice, conflict of interest or other basis which might result in
prejudice to a party, the hearing shall recess. The Director of the Office
of Hearings and Appeals shall immediately determine the matter as a part
of the record and decision in the proceeding, after making such
investigation or holding such hearings, or both, as he may deem
appropriate in the circumstances.
§ 18.77
Direct testimony submitted as written documents.
top
(a) Unless otherwise specified, all direct testimony, including
accompanying exhibits, must be submitted to the presiding officer in

writing no later than the dates specified in the notice of the hearing
(§18.74), the prehearing order (§18.82), or within 15 days after the
conclusion of the prehearing conference (§18.84) as the case may be. All
direct testimony, referred to in the affidavit and made a part thereof,
must be attached to the affidavit. Direct testimony submitted with
exhibits must state the issue to which the exhibit relates; if no such
statement is made, the presiding officer shall determine the relevance of
the exhibit to the issues published in theFederal Register.
(b) The direct testimony submitted shall contain:
(1) A concise statement of the witness' interest in the proceeding and his
position regarding the issues presented. If the direct testimony is
presented by a witness who is not a party, the witness shall state his
relationship to the party; and
(2) Facts that are relevant and material.
(c) The direct testimony may propose issues of fact not defined in the
notice of the hearing and the reason(s) why such issues should be
considered at the hearing.
(d) Ten copies of all direct testimony must be submitted unless the notice
of the hearing otherwise specifies.
(e) Upon receipt, direct testimony shall be assigned a number and stamped
with that number and the docket number.
(f) Contemporaneous with the publication of the notice of hearing, the
Director's direct testimony in support of the proposed regulations and
waiver, where applicable, shall be available for public inspection as
specified in the notice of hearing. The Director may submit additional
direct testimony during the time periods allowed for submission of such
testimony by witnesses.
§ 18.78
Mailing address.
top
Unless otherwise specified in the notice of hearing, all direct testimony
shall be addressed to the Presiding Officer, c/o Director, U.S. Fish and
Wildlife Service, Washington, DC 20240. All affidavits and exhibits shall
be clearly marked with the docket number of the proceedings.
§ 18.79
Inspection and copying of documents.
top
Any document in a file pertaining to any hearing authorized by this
subpart or any document forming part of the record of such a hearing may
be inspected and/or copied in the Office of the Director, U.S. Fish and
Wildlife Service, Washington, DC 20240, unless the file is in the care and
custody of the presiding officer, in which case he shall notify the
parties as to where and when the record may be inspected.
§ 18.80
Ex parte communications.
top
(a) After notice of a hearing is published in theFederal Register,all
communications, whether oral or written, involving any substantive or
procedural issue and directed either to the presiding officer or to the
Director, Deputy Director or Marine Mammal Coordinator, U.S. Fish and
Wildlife Service, without reference to these rules of procedure, shall be
deemed ex parte communications and are not to be considered part of the
record for decision.
(b) A record of oral conversations shall be made by the above persons who
are contacted. All communications shall be available for public viewing at
times and place(s) specified in the notice of hearing.
(c) The presiding officer shall not communicate with any party on any fact
in issue or on the merits of the matter unless notice and opportunity is
given for all parties to participate.
§ 18.81
Prehearing conference.

top
(a) After an examination of all the direct testimony submitted pursuant to
§18.77, the presiding officer shall make a preliminary determination of
issues of fact which may be addressed at the hearing.
(b) The presiding officer's preliminary determination shall be made
available at the place or places provided in the notice of the hearing
(§18.74(b)(8)) at least five days before the prehearing conference is
held.
(c) The purpose of the prehearing conference shall be to enable the
presiding officer to determine, on the basis of the direct testimony
submitted and prehearing discussions:
(1) Whether the presiding officer's preliminary determination of issues of
fact for the hearing has omitted any significant issues;
(2) What facts are not in dispute;
(3) Which witnesses may appear at the hearing; and
(4) The nature of the interest of each party and which parties' interests
are adverse.
(d) Only parties may participate in the prehearing conference, and a party
may appear in person or be represented by counsel.
§ 18.82
Prehearing order.
top
(a) After the prehearing conference, the presiding officer shall prepare a
prehearing order which shall be published in theFederal Registerwithin ten
days after the conclusion of the conference. A copy of the prehearing
order shall be mailed to all Parties.
(b) The prehearing order shall list: (1) All the issues which the hearing
shall address, the order in which those issues shall be presented, and the
direct testimony submitted which bears on the issues; and (2) a final date
for submission of direct testimony on issues of fact not included in the
notice of hearing if such issues are presented. The prehearing order may
also specify a final date for submission of direct testimony to rebut
testimony previously submitted during the time specified in the notice of
the hearing.
(c) The presiding officer shall publish with the prehearing order a list
of witnesses who may appear at the hearing, a list of parties, the nature
of the interest of each party, and which parties interests are adverse on
the issues presented.
(d) All parties shall be bound by the prehearing order.
§ 18.83
Determination to cancel the hearing.
top
(a) If the presiding officer determines that no issues of material fact
are presented by the direct testimony submitted prior to the date of the
hearing, he may publish in theFederal Registersuch determination and that
on issues of material fact a hearing shall not be held. The presiding
officer may provide an opportunity for argument on any issues of law
presented by the direct testimony.
(b) Promptly after oral argument, if any, the presiding officer shall make
a recommended decision based on the record, which in this case shall
consist of the direct testimony and any oral argument presented. He shall
transmit to the Director his recommended decision, the record and a
certificate stating that the record contains all the written direct
testimony. The Director shall then make a final decision in accordance
with these regulations (§18.91).
§ 18.84
Rebuttal testimony and new issues of fact in prehearing order.
top
(a) Direct testimony to rebut testimony offered during the time period
specified in the notice of hearing may be submitted pursuant to these

regulations within fifteen days after the conclusion of the prehearing
conference unless the presiding officer otherwise specifies in the
prehearing order.
(b) If the prehearing order presents issues not included in the notice of
the hearing published pursuant to §18.74:
(1) Any person interested in participating at the hearing on such issues
presented shall notify the Director by certified mail of an intent to
participate not later than ten days after publication of the prehearing
order. Such person may present direct testimony or cross-examine witnesses
only on such issues presented unless he previously notified the Director
pursuant to §18.75; and
(2) Additional written direct testimony concerning such issues may be
submitted within the time provided in the prehearing order. Such direct
testimony will comply with the requirements of §18.77.
§ 18.85
Waiver of right to participate.
top
Any person who fails to notify the Director of his intent to participate
pursuant to §18.75 or §18.84 shall be deemed to have waived his right to
participate as a party.
§ 18.86
Conduct of the hearing.
top
(a) The hearing shall be held at the time and place fixed in the notice of
hearing, unless the presiding officer changes the time or place. If a
change occurs, the presiding officer shall publish the change in
theFederal Registerand shall expeditiously notify all parties by telephone
or by mail. If the change in time or place of hearing is made less than
five days before the date previously fixed for the hearing, the presiding
officer shall also announce, or cause to be announced, the change at the
time and place previously fixed for the hearing.
(b) The presiding officer shall, at the commencement of the hearing,
introduce into the record the notice of hearing as published in theFederal
Register,all subsequent notices published in theFederal Register,the
Environmental Impact Statement if it is required and the comments thereon
and agency responses to the comments, and a list of all parties. Direct
testimony shall then be received with respect to the matters specified in
the prehearing order in such order as the presiding officer shall
announce. With respect to direct testimony submitted as rebuttal testimony
or in response to new issues presented by the prehearing conference, the
presiding officer shall determine the relevancy of such testimony.
(c) The hearing shall be publicly conducted and reported verbatim by an
official reporter.
(d) If a party objects to the admission or rejection of any direct
testimony or to any other ruling of the presiding officer during the
hearing, he shall state briefly the grounds of such objection, whereupon
an automatic exception will follow if the objection is overruled by the
presiding officer. The transcript shall not include argument or debate
thereon except as ordered by the presiding officer. The ruling of the
presiding officer on any objection shall be a part of the transcript and
shall be subject to review at the same time and in the same manner as the
Director's final decision. Only objections made before the presiding
officer may subsequently be relied upon in the proceedings.
(e) All motions and requests shall be addressed to, and ruled on by, the
presiding officer if made prior to his certification of the transcript, or
by the Director if made thereafter.
§ 18.87
Direct testimony.
top
(a) Only direct testimony submitted as provided in these regulations and

introduced at the hearing by a witness shall be considered part of the
record. Such direct testimony, when written, shall not be read into
evidence but shall become a part of the record subject to exclusion of
irrelevant and immaterial parts thereof.
(b) The witness introducing direct testimony shall:
(1) State his name, address and occupation;
(2) State qualifications for introducing the direct testimony. If an
expert, the witness shall briefly state the scientific or technical
training which qualifies him as an expert;
(3) Identify the direct testimony previously submitted in accordance with
these regulations; and
(4) Submit to appropriate cross- and direct-examination. Cross-examination
shall be by a party whose interests are adverse on the issue presented to
the witness if the witness is a party, or to the interests of the party
who presented the witness.
(c) A party shall be deemed to have waived the right to introduce
direct-testimony if such party fails to present a witness to introduce the
direct-testimony.
(d) Official notice may be taken of such matters as are judicially noticed
by the courts of the United States. Parties shall be given adequate
notice, by the presiding officer, at the hearing, of matters so noticed
and shall be given adequate opportunity to show that such facts are
inaccurate or are erroneously noticed.
§ 18.88
Cross-examination.
top
(a) The presiding officer may:
(1) Require the cross-examiner to outline the intended scope of the
examination; and
(2) Exclude cross-examination questions that are immaterial, irrelevant or
unduly repetitious.
(b) Any party shall be given an opportunity to appear, either in person or
through an authorized counsel or representative, to cross-examine
witnesses. Before cross-examining a witness, the party or counsel shall
state his name, address and occupation. If counsel cross-examines the
witness, counsel shall state for the record the authority to act as
counsel. Cross-examiners shall be assumed to be familiar with the direct
testimony.
(c) Any party or party's counsel who fails to appear at the hearing to
cross-examine an “adverse” witness shall be deemed to have waived the
right to cross-examine that witness.
(d) Scientific, technical or commercial publications may only be utilized
for the limited purposes of impeaching witnesses under cross-examination
unless previously submitted and introduced in accordance with these
regulations.
§ 18.89
Oral and written arguments.
top
(a) The presiding officer may, in his discretion, provide for oral
argument by parties at the end of the hearing. Such argument, when
permitted, may be limited by the presiding officer to the extent necessary
for the expeditious disposition of the proceeding.
(b) The presiding officer shall announce at the hearing a reasonable
period of time within which any party may file with the presiding officer
proposed findings and conclusions and written arguments or briefs, which
are based upon the record and citing where practicable the relevant page
or pages of the transcript. If a party filing a brief desires the
presiding officer to reconsider any objection made by such party to a
ruling of the presiding officer, he shall specifically identify such

rulings by reference to the pertinent pages of the transcript and shall
state his arguments thereon as a part of the brief.
(c) Oral or written arguments shall be limited to issues arising from
direct testimony on the record.
§ 18.90
Recommended decision, certification of the transcript and
submission of comments on the recommended decision.
top
(a) Promptly after expiration of the period for receiving written briefs,
the presiding officer shall make a recommended decision based on the
record and transmit the decision to the Director. The recommended decision
shall include:
(1) A statement containing a description of the history of the
proceedings;
(2) Findings on the issues of fact with the reasons therefor; and
(3) Rulings on issues of law.
(b) The presiding officer shall also transmit to the Director the
transcript of the hearing, the original and all copies of the direct
testimony, and written comments. The presiding officer shall attach to the
original transcript of the hearing a certificate stating that to the best
of his knowledge and belief the transcript is a true transcript of the
testimony given at the hearing except in such particulars as are
specified.
(c) Upon receipt of the recommended decision, the Director shall send a
copy thereof to each party by certified mail and shall publish in
theFederal Registera notice of the receipt of the recommended decision by
the Director. The notice shall include:
(1) A summary of the recommended decision;
(2) A statement that any interested person may file written comments on
the recommended decision with the Director by a specified date;
(3) The time(s) and place(s) where the record of the hearing transmitted
to the Director pursuant to paragraph (b) of this section may be inspected
by interested persons; and
(4) The time(s) and place(s) where the recommended decision may be
inspected and/or copied by interested persons.
(d) Within thirty days after the notice of receipt of the recommended
decision has been published in theFederal Register,any interested person
may file with the Director any written comments on the recommended
decision. All comments, including recommendations from or consultation
with the Marine Mammal Commission, must be submitted during the thirty-day
period to the Director at the above address.
§ 18.91
Director's decision.
top
(a) Upon receipt of the recommended decision and transcript and after the
thirty-day period for receiving written comments on the recommended
decision has passed, the Director shall make a final decision on the
proposed regulations and waiver, where applicable. The Director's decision
may affirm, modify, or set aside, in whole or in part, the recommended
findings, conclusions and decision of the presiding officer. The Director
may also remand the hearing record to the presiding officer for a fuller
development of the record.
(b) The Director's decision shall include:
(1) A statement containing a description of the history of the proceeding;
(2) Findings on the issues of fact with the reasons therefor;
(3) Rulings on issues of law; and
(4) Any other relevant information which the Director deems appropriate.
(c) The Director's decision shall be published in theFederal Register.If
the waiver is approved, the final adopted regulations shall be promulgated

with the decision, or as soon thereafter as practicable.
Subpart H—Waiver of Moratorium on Taking and Importation of Individual
Marine Mammal Species
top
Source:
41 FR 14373, Apr. 5, 1976, unless otherwise noted.
§ 18.92
Purpose of regulations.
top
The regulations contained in this subpart fulfill the requirements of
section 103 of the Act for regulations to govern the taking and
importation of each species of marine mammal for which the moratorium
imposed by section 101 has been waived.
§ 18.93
Scope of regulations.
top
(a) The provisions in this subpart apply only after (1) the Director has
made a decision to waive a moratorium pursuant to section 101(a)(3)(A) of
the Act, (2) the opportunity for a hearing required by section 103(d) of
the Act has been provided, and (3) the Director has made a determination,
in the case of State laws and regulations, to approve such State laws and
regulations pursuant to section 109(a)(2) of the Act and subpart F of this
part.
(b) The provisions of this subpart, unless specifically stated, apply to
all taking and/or importation of each species of marine mammal for which
the moratorium has been waived other than takings for scientific research
or public display, which are governed by §18.31 of this part, or takings
incidental to commercial fishing operations which are governed by §18.24.
§ 18.94
Pacific walrus (Alaska).
top
(a) Pursuant to sections 101(a)(3)(A) 103, and 109 of the Marine Mammal
Protection Act of 1972, the moratorium on the hunting and killing of
Pacific walrus ( Odobenus rosmarus ) in waters or on lands subject to the
jurisdiction of the State of Alaska, the United States, or on the high
seas by any person, vessel, or conveyance subject to the jurisdiction of
the State of Alaska or the United States, is waived, provided that
beginning August 2, 1979 this waiver shall not be effective, and no taking
or importation under the waiver shall be allowed, until this section is
amended to establish regulations to effectively control taking and
otherwise implement the waiver.
(b) [Reserved]
[41 FR 14373, Apr. 5, 1976, as amended at 44 FR 45566, Aug. 2, 1979]
Subpart I [Reserved]
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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
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Source:
71 FR 43950, Aug. 2, 2006, unless otherwise noted.
§ 18.121
What specified activities does this subpart cover?
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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?
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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.
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§ 18.123
When is this subpart effective?
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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?
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(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?
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(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?
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(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?
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(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?
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(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?
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(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.