50 Cfr 18,27

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ELECTRONIC CODE OF FEDERAL REGULATIONS
e-CFR Data is current as of January 8, 2014
Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS
Subpart C—General Exceptions
§18.27 Regulations governing small takes of marine mammals incidental to specified
activities.
(a) Purpose of regulations. The regulations in this section implement Section 101(a)(5) of the
Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a
mechanism for allowing, upon request, during periods of not more than five consecutive years each,
the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who
engage in a specified activity (other than commercial fishing) within a specified geographical region.
(b) Scope of regulations. The taking of small numbers of marine mammals under section 101(a)
(5) of the Marine Mammal Protection Act may be allowed only if the Director of the Fish and Wildlife
Service (1) finds, based on the best scientific evidence available, that the total taking during the
specified time period will have a negligible impact on the species or stock and will not have an
unmitigable adverse impact on the availability of the species or stock for subsistence uses; (2)
prescribes regulations setting forth permissible methods of taking and other means of effecting the
least practicable adverse impact on the species and its habitat and on the availability of the species for
subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar
significance; and (3) prescribes regulations pertaining to the monitoring and reporting of such taking.
NOTE: The information collection requirement contained in this §18.27 has been approved by the Office of
Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance No. 1018-0070. The information is
being collected to describe the activity proposed and estimate the cumulative impacts of potential takings by all
persons conducting the activity. The information will be used to evaluate the application and determine whether to
issue Specific Regulations and, subsequently, Letters of Authorization. Response is required to obtain a benefit.

The public reporting burden from this requirement is estimated to vary from 2 to 200 hours per
response with an average of 10 hours per response including time for reviewing instructions, gathering
and maintaining data, and completing and reviewing applications for specific regulations and Letters of
Authorization. Direct comments regarding the burden estimate or any other aspect of this requirement
to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, Department of the
Interior, Mail Stop—220 ARLSQ, 18th and C Streets NW., Washington, DC 20240, and the Office of
Management and Budget, Paperwork Reduction Project (Clearance No. 1018-0070), Washington, DC
20503.
(c) Definitions. In addition to definitions contained in the Act and in 50 CFR 18.3 and unless the
context otherwise requires, in this section:
Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or
similar entity if it is organized under the laws of the United States or any governmental unit defined in 16
U.S.C. 1362(13). U.S. Federal, State and local government agencies shall also constitute citizens of
the United States for purposes of this section.
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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;
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(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 the FEDERAL 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 the FEDERAL REGISTER the 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.
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(3) Notice of issuance of all Letters of Authorization will be published in the FEDERAL REGISTER within
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]

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