50 Cfr 18.27

50 CFR 18.27 (up to date as of 5/09/2022)
Regulations governing small takes of marine mammals incidenta...

50 CFR 18.27

This content is from the eCFR and is authoritative but unofficial.

Title 50 - Wildlife and Fisheries
Chapter I - United States Fish and Wildlife Service, Department of the Interior
Subchapter B - Taking, Possession, Transportation, Sale, Purchase, Barter, Exportation, and
Importation of Wildlife and Plants
Part 18 - Marine Mammals
Authority: 16 U.S.C. 1361 et seq.
Source: 39 FR 7262, Feb. 25, 1974, unless otherwise noted.

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 Service's Information Collection
Clearance Officer at the address provided at 50 CFR 2.1(b).

50 CFR 18.27(b)(3) (enhanced display)

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50 CFR 18.27(c)

(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;

50 CFR 18.27(d)(1)(iii) (enhanced display)

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50 CFR 18.27(d)(1)(iii)(A)

(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 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.

50 CFR 18.27(d)(3) (enhanced display)

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50 CFR 18.27(d)(4)

(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.
(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).
50 CFR 18.27(f)(7) (enhanced display)

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50 CFR 18.27(f)(7)

[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;
79 FR 43965, July 29, 2014]

50 CFR 18.27(f)(7) (enhanced display)

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