50 Cfr 18.27

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Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS
Subpart C—General Exceptions
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§ 18.27 Regulations governing small takes of marine mammals incidental to specified
activities.
(a) Purpose of regulations. The regulations in this section implement Section 101(a)(5) of the Marine
Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for
allowing, upon request, during periods of not more than five consecutive years each, the incidental, but
not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified
activity (other than commercial fishing) within a specified geographical region.
(b) Scope of regulations. The taking of small numbers of marine mammals under section 101(a)(5) of the
Marine Mammal Protection Act may be allowed only if the Director of the Fish and Wildlife Service (1)
finds, based on the best scientific evidence available, that the total taking during the specified time
period will have a negligible impact on the species or stock and will not have an unmitigable adverse
impact on the availability of the species or stock for subsistence uses; (2) prescribes regulations setting
forth permissible methods of taking and other means of effecting the least practicable adverse impact on
the species and its habitat and on the availability of the species for subsistence uses, paying particular
attention to rookeries, mating grounds, and areas of similar significance; and (3) prescribes regulations
pertaining to the monitoring and reporting of such taking.

Note: The information collection requirement contained in this §18.27 has been approved by
the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance
No. 1018–0070. The information is being collected to describe the activity proposed and
estimate the cumulative impacts of potential takings by all persons conducting the activity.
The information will be used to evaluate the application and determine whether to issue
Specific Regulations and, subsequently, Letters of Authorization. Response is required to
obtain a benefit.
The public reporting burden from this requirement is estimated to vary from 2 to 200 hours per
response with an average of 10 hours per response including time for reviewing instructions,
gathering and maintaining data, and completing and reviewing applications for specific
regulations and Letters of Authorization. Direct comments regarding the burden estimate or
any other aspect of this requirement to the Information Collection Clearance Officer, U.S. Fish
and Wildlife Service, Department of the Interior, Mail Stop—220 ARLSQ, 18th and C Streets
NW., Washington, DC 20240, and the Office of Management and Budget, Paperwork
Reduction Project (Clearance No. 1018–0070), Washington, DC 20503.
(c) Definitions. In addition to definitions contained in the Act and in 50 CFR 18.3 and unless the context
otherwise requires, in this section:
Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or similar
entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C.
1362(13). U.S. Federal, State and local government agencies shall also constitute citizens of the United

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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,

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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

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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 wellbeing 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]
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