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Marine Mammals
50 CFR Part 18 (Aug. 21, 2023)
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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
Subpart A Introduction
§ 18.1 Purpose of regulations.
§ 18.2 Scope of regulations.
§ 18.3 Definitions.
§ 18.4 Information collection requirements.
Subpart B Prohibitions
§ 18.11 Prohibited taking.
§ 18.12 Prohibited importation.
§ 18.13 Prohibited uses, possession, transportation, and sales.
§ 18.14 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.
§ 18.34 Guidelines for use in safely deterring polar bears.
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.
50 CFR Part 18 (Aug. 21, 2023) (enhanced display)
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50 CFR Part 18 (up to date as of 8/21/2023)
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50 CFR Part 18 (Aug. 21, 2023)
§ 18.72
§ 18.73
§ 18.74
§ 18.75
§ 18.76
§ 18.77
§ 18.78
§ 18.79
§ 18.80
§ 18.81
§ 18.82
§ 18.83
§ 18.84
§ 18.85
§ 18.86
§ 18.87
§ 18.88
§ 18.89
§ 18.90
Scope of regulations.
Burden of proof.
Notice of hearing.
Notification by interested persons.
Presiding officer.
Direct testimony submitted as written documents.
Mailing address.
Inspection and copying of documents.
Ex parte communications.
Prehearing conference.
Prehearing order.
Determination to cancel the hearing.
Rebuttal testimony and new issues of fact in prehearing order.
Waiver of right to participate.
Conduct of the hearing.
Direct testimony.
Cross-examination.
Oral and written arguments.
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 Purpose of regulations.
§ 18.93 Scope of regulations.
§ 18.94 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
§ 18.119 Specified activities covered by this subpart.
§ 18.120 Specified geographic region where this subpart applies.
§ 18.121 Dates this subpart is in effect.
§ 18.122 Procedure to obtain a Letter of Authorization (LOA).
§ 18.123 How the Service will evaluate a request for a Letter of Authorization (LOA).
§ 18.124 Authorized take allowed under a Letter of Authorization (LOA).
§ 18.125 Prohibited take under a Letter of Authorization (LOA).
§ 18.126 Mitigation.
§ 18.127 Monitoring.
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50 CFR Part 18 (Aug. 21, 2023)
§ 18.128 Reporting requirements.
§ 18.129 Information collection requirements.
Subpart K Nonlethal Taking of Marine Mammals Incidental to Oil and Gas
Activities in Cook Inlet, Alaska
§ 18.130 Specified activities covered by this subpart.
§ 18.131 Specified geographic region where this subpart applies.
§ 18.132 Dates this subpart is in effect.
§ 18.133 Authorized take allowed under a Letter of Authorization (LOA).
§ 18.134 Procedure to obtain a Letter of Authorization (LOA).
§ 18.135 How the Service will evaluate a request for a Letter of Authorization (LOA).
§ 18.136 Prohibited take under a Letter of Authorization (LOA).
§ 18.137 Mitigation.
§ 18.138 Monitoring.
§ 18.139 Reporting requirements.
§ 18.140 Measures to reduce impacts to subsistence users.
§ 18.141 Information collection requirements.
Subpart L Nonlethal Taking of Marine Mammals Incidental to Pile Driving and
Marine Construction Activities in the Gulf of Alaska
§18.142 Specified activities covered by this subpart.
§ 18.143
Specified geographic region where this subpart applies.
§ 18.144
Dates this subpart is in effect.
§ 18.145
Procedure to obtain a Letter of Authorization (LOA).
§ 18.146
How the Service will evaluate a request for an LOA.
§ 18.147
Authorized take allowed under an LOA.
§ 18.148
Prohibited take under an LOA.
§ 18.149
Mitigation.
§ 18.150
Monitoring.
§ 18.151
Reporting requirements.
§ 18.152
Information collection requirements.
PART 18—MARINE MAMMALS
Authority: 16 U.S.C. 1361 et seq.
Source: 39 FR 7262, Feb. 25, 1974, unless otherwise noted.
Subpart A—Introduction
50 CFR 18 (enhanced display)
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50 CFR Part 18 (up to date as of 8/21/2023)
Marine Mammals
50 CFR 18.1
§ 18.1 Purpose of regulations.
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.
(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.
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.
50 CFR 18.3 “Commercial fishing operation” (enhanced display)
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50 CFR 18.3 “Endangered species”
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 name
Common name
Date listed
Ursus maritimus
Polar bear
Dec. 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 otter
Mar. 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
50 CFR 18.3 “Wasteful manner” (enhanced display)
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50 CFR 18.4
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.
(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's Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).
[62 FR 7329, Feb. 18, 1997, as amended at 79 FR 43965, July 29, 2014]
Subpart B—Prohibitions
§ 18.11 Prohibited taking.
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.
(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:
50 CFR 18.12(b)(2) (enhanced display)
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(i)
50 CFR 18.12(b)(2)(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.
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.
(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;
50 CFR 18.14(a)(2) (enhanced display)
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50 CFR 18.14(a)(3)
(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
§ 18.21 Actions permitted by international treaty, convention, or agreement.
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.
(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:
50 CFR 18.22(a) (enhanced display)
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50 CFR 18.22(a)(1)
(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.
(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:
50 CFR 18.23(b)(1) (enhanced display)
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(i)
50 CFR 18.23(b)(1)(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.
50 CFR 18.23(d)(5) (enhanced display)
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50 CFR 18.23(d)(6)
(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.
50 CFR 18.23(f)(2)(ii) (enhanced display)
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50 CFR 18.23(f)(3)
(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.
50 CFR 18.23(f)(9)(i)(B) (enhanced display)
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50 CFR 18.23(f)(9)(i)(C)
(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.
50 CFR 18.23(f)(10) (enhanced display)
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50 CFR 18.23(f)(11)
(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.
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.
(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 the
FEDERAL REGISTER of 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.
(a) Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from land within
1⁄ of a mile of the ocean. The term “ocean” includes bays and estuaries.
4
(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,
50 CFR 18.26(c)(1) (enhanced display)
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50 CFR 18.26(c)(2)
(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.
(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).
(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:
50 CFR 18.27(c) (enhanced display)
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50 CFR 18.27(c) “Citizens of the United States”
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.
50 CFR 18.27(f)(6) (enhanced display)
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50 CFR 18.27(f)(7)
(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;
79 FR 43965, July 29, 2014]
Subpart D—Special Exceptions
§ 18.30 Polar bear sport-hunted trophy import permits.
(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 Division of Management Authority at the
address provided at 50 CFR 2.1(b). 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;
50 CFR 18.30(a)(7) (enhanced display)
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50 CFR 18.30(a)(8)
(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:
50 CFR 18.30(d)(6) (enhanced display)
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(i)
50 CFR 18.30(d)(6)(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;
50 CFR 18.30(e)(8)(ii)(A) (enhanced display)
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50 CFR 18.30(e)(8)(ii)(B)
(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:
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(i)
50 CFR 18.30(i)(2)(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; 79 FR
43965, July 29, 2014]
§ 18.31 Scientific research permits and public display permits.
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.
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(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.
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.
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[40 FR 59442, Dec. 24, 1975]
§ 18.33 Procedures for issuance of permits and modification, suspension, or revocation thereof.
(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 the FEDERAL 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 the FEDERAL REGISTER not 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 the FEDERAL REGISTER within 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,
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suspension, or revocation shall be published in the FEDERAL REGISTER within 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 the FEDERAL REGISTER.
§ 18.34 Guidelines for use in safely deterring polar bears.
(a) These guidelines are intended for use in safely deterring polar bears in the wild. They provide acceptable
types of deterrence actions that any person, or their employee, or their agent, can use to deter a polar bear
from damaging private property; or that any person can use to deter a polar bear from endangering
personal safety; or that a government employee can use to deter a polar bear from damaging public
property, and not cause the serious injury or death of a polar bear. Anyone acting in such a manner and
conducting activities that comply with the guidelines in this subpart does not need authorization under
the MMPA to conduct such deterrence. Furthermore, actions consistent with these guidelines do not
violate the take prohibitions of the MMPA or this part. A Federal, State or local government official or
employee may take a polar bear in the course of his duties as an official or employee, as long as such
taking is accomplished in accordance with § 18.22 of this part.
(b) There are two types of deterrence measures that a person, or their employee, or their agent could follow to
nonlethally deter a polar bear. Each type of measure includes a suite of appropriate actions that the public
may use.
(1) Passive deterrence measures. Passive deterrence measures are those that prevent polar bears from
gaining access to property or people. These measures provide for human safety and do not increase
the risk of serious injury or death of a polar bear. They include:
(i)
Rigid fencing. Rigid fencing and other fixed barriers such as gates and fence skirting can be
used around buildings or areas to limit bears from accessing community or industrial sites and
buildings. Fencing areas 5 acres (∼2 ha) and smaller can be used to limit human-bear
interactions. Industry standard chain-link fencing material can be used. Chain-link fencing can
be placed around buildings on pilings as fence skirting to limit access of bears underneath the
buildings.
(ii) Bear exclusion cages. Bear exclusion cages provide a protective shelter for people in areas
frequented by bears. Cages erected at building entry and exit points exclude polar bears from
the immediate area and allow safe entry and exit for persons gaining access to, or leaving, a
building should a polar bear be in the vicinity. Additionally, they provide an opportunity for
people exiting a building to conduct a visual scan upon exit. Such a scan is especially important
in areas where buildings are constructed above ground level due to permafrost because bears
may be resting underneath. These cages can be used at homes or industrial facilities to deter
bears as well. Cages can be used in remote areas where bear use is not known, and along bear
travel corridors, e.g., within 0.5 mile from coastline, to deter bears from facilities. Cages must
be no smaller than 4 ft (width) by 4 ft (length) by 8 ft (height). Bars must be no smaller than 1
inch wide. Distance between bars must be no more than 4 inches clear on stairways and
landings or when otherwise attached to a habitable structure; they may be no more than 5
inches clear for use in cages not attached to any habitable structure. A 4-inch distance between
the bars would be sufficient to prevent a bear from reaching through, while providing visible
space between bars. The ceiling of the cage must be enclosed.
(iii) Bear-resistant garbage containers. Bear-resistant garbage containers prevent bears from
accessing garbage as a food source and limit polar bears from becoming food-conditioned or
habituated to people and facilities. The absence of habituation further reduces the potential for
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bear-human interactions. Bear-resistant garbage cans and garbage bins are manufactured by
various companies and in various sizes. Commercially designed residential bear-resistant
containers (32–130 gallons) can be used. Two- to 6-cubic yard containers can be specifically
designed by commercial vendors as bear-proof containers or have industry-standard lid locks
to prohibit bear entry, depending on the need and location. For remote seasonal camps,
garbage can be temporarily stored in steel drums secured with locking rings and a gasket, and
removed from the site when transportation is available. Larger garbage containers, such as
dumpsters or “roll-offs” (20 to 40 cubic yards), can limit bear-human interactions when the
containers have bear-proof lids. Lids must be constructed of heavy steel tubing or similarly
constructed with heavy expanded metal.
(2) Preventive deterrence measures. Preventive deterrence measures are those that can dissuade a
polar bear from initiating an interaction with property or people. These measures provide for safe
human use and do not increase the risk of serious injury or death of a polar bear. These are:
(i)
Acoustic devices. Acoustic deterrent devices may be used to create an auditory disturbance
causing polar bears to move away from the affected area. The reasonable use of loud noises,
e.g., vehicle engines, automobile sirens or horns, and air-horns, where such auditory stimuli
could startle a bear and disrupt its approach to property or people, is authorized. This
authorization is limited to deterrent devices with a sound strength of no greater than 140 dB
SPL to be deployed for no more than a 30-second continuous time interval. The use of
commercially available air horns or other audible products used as perimeter alarms, which
create sounds that fall below this upper limit, is acceptable.
(ii) Vehicle or boat deterrence. Patrolling the periphery of a compound or encampment using a
vehicle, such as a truck or all-terrain vehicle (e.g., a snowmobile or a four wheeler), and
deterring, but not chasing, polar bears with engine noise, or by blocking their approach without
making a physical contact with the animal, is an acceptable preventive deterrence. Similarly
patrolling an area in a small boat using similar methods is acceptable.
(c) The deterrence guidelines are passive or preventive in nature. Any action to deter polar bears that goes
beyond these specific measures could result in a taking and, unless otherwise exempted under the
MMPA, would require separate authorization. The Service acknowledges that there will be numerous new
techniques developed, or new applications of existing techniques, for deterring bears. The Service will
work to establish a system for evaluating new bear deterrence applications and techniques and will
update this set of guidelines with examples of future approved methods. Deterrence actions (other than
the measures described in these guidelines) that do not result in serious injury or death to a polar bear
remain permissible for persons identified in section 101(a)(4)(A) of the MMPA. Prior to conducting
activities beyond those specifically described in these guidelines, persons should contact the Service's
Alaska Regional Office's Marine Mammal Program for further guidance (for the location of the Alaska
Regional Office see 50 CFR 2.2(g)).
[75 FR 61637, Oct. 6, 2010]
Subpart E—Depleted Species or Stocks [Reserved]
50 CFR 18.34(c) (enhanced display)
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50 CFR 18.70
Subpart F—Transfer of Management Authority to States
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
Source: 41 FR 5396, Feb. 6, 1976, unless otherwise noted.
§ 18.70 Basis and purpose.
(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.
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.
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§ 18.72 Scope of regulations.
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.
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.
(a) A notice of hearing on any proposed regulations shall be published in the FEDERAL 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.
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.
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50 CFR 18.76
§ 18.76 Presiding officer.
(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 the FEDERAL REGISTER a 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.
(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 the FEDERAL REGISTER.
(b) The direct testimony submitted shall contain:
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(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.
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.
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.
(a) After notice of a hearing is published in the FEDERAL 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.
(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.
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(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.
(a) After the prehearing conference, the presiding officer shall prepare a prehearing order which shall be
published in the FEDERAL REGISTER within 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.
(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 the FEDERAL REGISTER such 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.
(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.
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(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.
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.
(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 the FEDERAL
REGISTER and 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 the FEDERAL REGISTER, all subsequent notices published in the FEDERAL 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.
(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.
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(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.
(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.
(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.
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§ 18.90 Recommended decision, certification of the transcript and submission of comments on
the recommended decision.
(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 the FEDERAL REGISTER a 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 the
FEDERAL 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.
(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
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(4) Any other relevant information which the Director deems appropriate.
(c) The Director's decision shall be published in the FEDERAL 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
Source: 41 FR 14373, Apr. 5, 1976, unless otherwise noted.
§ 18.92 Purpose of regulations.
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.
(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).
(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
Source: 86 FR 43070, Aug. 5, 2021, unless otherwise noted.
Effective Date Note: At 86 FR 43070, Aug. 5, 2021, Part 18, subpart J was revised, effective Aug. 5, 2021
through Aug. 5, 2026.
§ 18.119 Specified activities covered by this subpart.
Regulations in this subpart apply to the nonlethal incidental, but not intentional, take of small numbers of polar bear
and Pacific walrus by certain U.S. citizens while engaged in oil and gas exploration, development, and production
activities in the Beaufort Sea and adjacent northern coast of Alaska.
§ 18.120 Specified geographic region where this subpart applies.
This subpart applies to the specified geographic region that encompasses all Beaufort Sea waters east of a northsouth line through Point Barrow, Alaska (N71.39139, W156.475, BGN 1944), and 80.5 km (50 mi) north of Point
Barrow, including Alaska State waters and Outer Continental Shelf waters, and east of that line to the Canadian
border.
(a) The offshore boundary of the Beaufort Sea incidental take regulations (ITR) region extends 80.5 km (50
mi) offshore. The onshore region is the same north/south line at Utqiagvik, 40.2 km (25 mi) inland and
east to the Canning River.
(b) The Arctic National Wildlife Refuge and the associated offshore waters within the refuge boundaries are
not included in the Beaufort Sea ITR region. Figure 1 shows the area where this subpart applies.
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§ 18.121 Dates this subpart is in effect.
Regulations in this subpart are effective from August 5, 2021, through August 5, 2026, for year-round oil and gas
exploration, development, and production.
§ 18.122 Procedure to obtain a Letter of Authorization (LOA).
(a) An applicant must be a U.S. citizen as defined in § 18.27(c) and among:
(1) Those entities specified in the request for this rule as set forth in paragraph (b) of this section;
(2) Any of their corporate affiliates; or
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(3) Any of their respective contractors, subcontractors, partners, owners, co-lessees, designees, or
successors-in-interest.
(b) The entities specified in the request are the Alaska Oil and Gas Association, which includes Alyeska
Pipeline Service Company, BlueCrest Energy, Inc., Chevron Corporation, ConocoPhillips Alaska, Inc., Eni
U.S. Operating Co. Inc., ExxonMobil Alaska Production Inc., Furie Operating Alaska, LLC, Glacier Oil and
Gas Corporation, Hilcorp Alaska, LLC, Marathon Petroleum, Petro Star Inc., Repsol, and Shell Exploration
and Production Company, Alaska Gasline Development Corporation, Arctic Slope Regional Corporation
Energy Services, Oil Search (Alaska), LLC, and Qilak LNG, Inc.
(c) If an applicant proposes to conduct oil and gas industry exploration, development, and production in the
Beaufort Sea ITR region described in § 18.120 that may cause the taking of Pacific walruses and/or polar
bears and wants nonlethal incidental take authorization under the regulations in this subpart J, the
applicant must request an LOA. The applicant must submit the request for authorization to the Service's
Alaska Region Marine Mammals Management Office (see § 2.2 for address) at least 90 days prior to the
start of the activity.
(d) The request for an LOA must comply with the requirements set forth in §§ 18.126 through 18.128 and
must include the following information:
(1) A plan of operations that describes in detail the activity (e.g., type of project, methods, and types and
numbers of equipment and personnel, etc.), the dates and duration of the activity, and the specific
locations of and areas affected by the activity.
(2) A site-specific marine mammal monitoring and mitigation plan to monitor and mitigate the effects of
the activity on Pacific walruses and polar bears.
(3) A site-specific Pacific walrus and polar bear safety, awareness, and interaction plan. The plan for
each activity and location will detail the policies and procedures that will provide for the safety and
awareness of personnel, avoid interactions with Pacific walruses and polar bears, and minimize
impacts to these animals.
(4) A plan of cooperation to mitigate potential conflicts between the activity and subsistence hunting,
where relevant. Applicants must provide documentation of communication with potentially affected
subsistence communities along the Beaufort Sea coast (i.e., Kaktovik, Nuiqsut, and Utqigvik) and
appropriate subsistence user organizations (i.e., the Alaska Nannut Co-Management Council, the
Eskimo Walrus Commission, or North Slope Borough) to discuss the location, timing, and methods
of activities and identify and mitigate any potential conflicts with subsistence walrus and polar bear
hunting activities. Applicants must specifically inquire of relevant communities and organizations if
the activity will interfere with the availability of Pacific walruses and/or polar bears for the
subsistence use of those groups. Requests for an LOA must include documentation of all
consultations with potentially affected user groups. Documentation must include a summary of any
concerns identified by community members and hunter organizations and the applicant's responses
to identified concerns.
§ 18.123 How the Service will evaluate a request for a Letter of Authorization (LOA).
(a) We will evaluate each request for an LOA 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 considering the number of animals estimated to be taken and evaluating whether there will be a
negligible impact on the species or stock and an unmitigable adverse impact on the availability of the
species or stock for subsistence uses. If the level of activity is greater, we will reevaluate our findings to
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determine if those findings continue to be appropriate based on the combined estimated take of the
greater level of activity that the applicant has requested and all other activities proposed during the time
of the activities in the LOA request. 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 an LOA, 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 stocks
of polar bears or Pacific walruses.
§ 18.124 Authorized take allowed under a Letter of Authorization (LOA).
(a) An LOA allows for the nonlethal, non-injurious, incidental, but not intentional take by Level B harassment,
as defined in § 18.3 and under section 3 of the Marine Mammal Protection Act (16 U.S.C. 1362), of Pacific
walruses and/or polar bears while conducting oil and gas industry exploration, development, and
production within the Beaufort Sea ITR region described in § 18.120.
(b) Each LOA will identify terms and conditions for each activity and location.
§ 18.125 Prohibited take under a Letter of Authorization (LOA).
Except as otherwise provided in this subpart, prohibited taking is described in § 18.11 as well as:
(a) Intentional take, Level A harassment, as defined in section 3 of the Marine Mammal Protection Act (16
U.S.C. 1362), and lethal incidental take of polar bears or Pacific walruses; and
(b) Any take that fails to comply with this subpart or with the terms and conditions of an LOA.
§ 18.126 Mitigation.
(a) Mitigation measures for all Letters of Authorization (LOAs). Holders of an LOA must implement policies
and procedures to conduct activities in a manner that affects the least practicable adverse impact on
Pacific walruses and/or polar bears, their habitat, and the availability of these marine mammals for
subsistence uses. Adaptive management practices, such as temporal or spatial activity restrictions in
response to the presence of marine mammals in a particular place or time or the occurrence of Pacific
walruses and/or polar bears engaged in a biologically significant activity (e.g., resting, feeding, denning, or
nursing, among others), must be used to avoid interactions with and minimize impacts to these animals
and their availability for subsistence uses.
(1) All holders of an LOA must:
(i)
Cooperate with the Service's Marine Mammals Management Office and other designated
Federal, State, and local agencies to monitor and mitigate the impacts of oil and gas industry
activities on Pacific walruses and polar bears. Where information is insufficient to evaluate the
potential effects of activities on walruses, polar bears, and the subsistence use of these
species, holders of an LOA may be required to participate in joint monitoring and/or research
efforts to address these information needs and ensure the least practicable impact to these
resources.
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(ii) Designate trained and qualified personnel to monitor for the presence of Pacific walruses and
polar bears, initiate mitigation measures, and monitor, record, and report the effects of oil and
gas industry activities on Pacific walruses and/or polar bears.
(iii) Have an approved Pacific walrus and polar bear safety, awareness, and interaction plan on file
with the Service's Marine Mammals Management Office and onsite and provide polar bear
awareness training to certain personnel. Interaction plans must include:
(A) The type of activity and where and when the activity will occur (i.e., a summary of the plan
of operation);
(B) A food, waste, and other “bear attractants” management plan;
(C) Personnel training policies, procedures, and materials;
(D) Site-specific walrus and polar bear interaction risk evaluation and mitigation measures;
(E) Walrus and polar bear avoidance and encounter procedures; and
(F) Walrus and polar bear observation and reporting procedures.
(2) All applicants for an LOA must contact affected subsistence communities and hunter organizations
to discuss potential conflicts caused by the activities and provide the Service documentation of
communications as described in § 18.122.
(b) Mitigation measures for onshore activities. Holders of an LOA must undertake the following activities to
limit disturbance around known polar bear dens:
(1) Attempt to locate polar bear dens. Holders of an LOA seeking to carry out onshore activities during
the denning season (November–April) must conduct two separate surveys for occupied polar bear
dens in all denning habitat within 1.6 km (1 mi) of proposed activities using aerial infrared (AIR)
imagery. Further, all denning habitat within 1.6 km (1 mi) of areas of proposed seismic surveys must
be surveyed three separate times with AIR technology.
(i)
The first survey must occur between the dates of November 25 and December 15, the second
between the dates of December 5 and December 31, and the third (if required) between the
dates of December 15 and January 15.
(ii) AIR surveys will be conducted during darkness or civil twilight and not during daylight hours.
Ideal environmental conditions during surveys would be clear, calm, and cold. If there is blowing
snow, any form of precipitation, or other sources of airborne moisture, use of AIR detection is
not advised. Flight crews will record and report environmental parameters including air
temperature, dew point, wind speed and direction, cloud ceiling, and percent humidity, and a
flight log will be provided to the Service within 48 hours of the flight.
(iii) A scientist with experience in the in-air interpretation of AIR imagery will be on board the survey
aircraft to analyze the AIR data in real-time. The data (infrared video) will be made available for
viewing by the Service immediately upon return of the survey aircraft to the base of operations.
(iv) All observed or suspected polar bear dens must be reported to the Service prior to the initiation
of activities.
(2) Observe the exclusion zone around known polar bear dens. Operators must observe a 1.6-km (1-mi)
operational exclusion zone around all putative polar bear dens during the denning season
(November–April, or until the female and cubs leave the areas). Should previously unknown
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occupied dens be discovered within 1 mile of activities, work must cease, and the Service contacted
for guidance. The Service will evaluate these instances on a case-by-case basis to determine the
appropriate action. Potential actions may range from cessation or modification of work to
conducting additional monitoring, and the holder of the authorization must comply with any
additional measures specified.
(3) Use the den habitat map developed by the USGS. A map of potential coastal polar bear denning
habitat can be found at: https://www.usgs.gov/centers/asc/science/polar-bear-maternal-denning?qtscience_center_objects=4#qt-science_center_objects. This measure ensures that the location of
potential polar bear dens is considered when conducting activities in the coastal areas of the
Beaufort Sea.
(4) Polar bear den restrictions. Restrict the timing of the activity to limit disturbance around dens,
including putative and known dens.
(c) Mitigation measures for operational and support vessels.
(1) Operational and support vessels must be staffed with dedicated marine mammal observers to alert
crew of the presence of walruses and polar bears and initiate adaptive mitigation responses.
(2) At all times, vessels must maintain the maximum distance possible from concentrations of walruses
or polar bears. Under no circumstances, other than an emergency, should any vessel approach within
an 805-m (0.5-mi) radius of walruses or polar bears observed on land or ice.
(3) Vessel operators must take every precaution to avoid harassment of concentrations of feeding
walruses when a vessel is operating near these animals. Vessels should reduce speed and maintain
a minimum 805-m (0.5-mi) operational exclusion zone around feeding walrus groups. Vessels may
not be operated in such a way as to separate members of a group of walruses (i.e., greater than two)
from other members of the group. When weather conditions require, such as when visibility drops,
vessels should adjust speed accordingly to avoid the likelihood of injury to walruses.
(4) Vessels bound for the Beaufort Sea ITR region may not transit through the Chukchi Sea prior to July
1. This operating condition is intended to allow walruses the opportunity to move through the Bering
Strait and disperse from the confines of the spring lead system into the Chukchi Sea with minimal
disturbance. It is also intended to minimize vessel impacts upon the availability of walruses for
Alaska Native subsistence hunters. Exemption waivers to this operating condition may be issued by
the Service on a case-by-case basis, based upon a review of seasonal ice conditions and available
information on walrus and polar bear distributions in the area of interest.
(5) All vessels must avoid areas of active or anticipated walrus or polar bear subsistence hunting activity
as determined through community consultations.
(6) In association with marine activities, we may require trained marine mammal monitors on the site of
the activity or onboard ships, aircraft, icebreakers, or other support vessels or vehicles to monitor the
impacts of oil and gas industry activity on polar bear and Pacific walruses.
(d) Mitigation measures for aircraft.
(1) Operators of support aircraft shall, at all times, conduct their activities at the maximum distance
possible from concentrations of walruses or polar bears.
(2) Aircraft operations within the ITR area will maintain an altitude of 1,500 ft above ground level when
safe and operationally possible.
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(3) Under no circumstances, other than an emergency, will aircraft operate at an altitude lower than 457
m (1,500 ft) within 805 m (0.5 mi) of walruses or polar bears observed on ice or land. Helicopters
may not hover or circle above such areas or within 805 m (0.5 mi) of such areas. When weather
conditions do not allow a 457-m (1,500-ft) flying altitude, such as during severe storms or when
cloud cover is low, aircraft may be operated below this altitude. However, when weather conditions
necessitate operation of aircraft at altitudes below 457 m (1,500 ft), the operator must avoid areas of
known walrus and polar bear concentrations and will take precautions to avoid flying directly over or
within 805 m (0.5 mile) of these areas.
(4) Plan all aircraft routes to minimize any potential conflict with active or anticipated walrus or polar
bear hunting activity as determined through community consultations.
(e) Mitigation measures for the subsistence use of walruses and polar bears. Holders of an LOA must conduct
their activities in a manner that, to the greatest extent practicable, minimizes adverse impacts on the
availability of Pacific walruses and polar bears for subsistence uses.
(1) Community consultation. Prior to receipt of an LOA, applicants must consult with potentially affected
communities and appropriate subsistence user organizations to discuss potential conflicts with
subsistence walrus and polar bear hunting caused by the location, timing, and methods of
operations and support activities (see § 18.122 for details). If community concerns suggest that the
activities may have an adverse impact on the subsistence uses of these species, the applicant must
address conflict avoidance issues through a plan of cooperation as described in paragraph (e)(2) of
this section.
(2) Plan of cooperation (POC). When appropriate, a holder of an LOA will be required to develop and
implement a Service-approved POC.
(i)
The POC must include a description of the procedures by which the holder of the LOA will work
and consult with potentially affected subsistence hunters and a description of specific
measures that have been or will be taken to avoid or minimize interference with subsistence
hunting of walruses and polar bears and to ensure continued availability of the species for
subsistence use.
(ii) The Service will review the POC to ensure that any potential adverse effects on the availability
of the animals are minimized. The Service will reject POCs if they do not provide adequate
safeguards to ensure the least practicable adverse impact on the availability of walruses and
polar bears for subsistence use.
§ 18.127 Monitoring.
Holders of an LOA must develop and implement a site-specific, Service-approved marine mammal monitoring and
mitigation plan to monitor and evaluate the effectiveness of mitigation measures and the effects of activities on
walruses, polar bears, and the subsistence use of these species and provide trained, qualified, and Service-approved
onsite observers to carry out monitoring and mitigation activities identified in the marine mammal monitoring and
mitigation plan.
§ 18.128 Reporting requirements.
Holders of a Letter of Authorization (LOA) must report the results of monitoring and mitigation activities to the
Service's Marine Mammals Management Office via email at: [email protected].
(a) In-season monitoring reports.
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50 CFR 18.128(a)(1)
(1) Activity progress reports. Holders of an LOA must:
(i)
Notify the Service at least 48 hours prior to the onset of activities;
(ii) Provide the Service weekly progress reports of any significant changes in activities and/or
locations; and
(iii) Notify the Service within 48 hours after ending of activities.
(2) Walrus observation reports. Holders of an LOA must report, on a weekly basis, all observations of
walruses during any industry activity. Upon request, monitoring report data must be provided in a
common electronic format (to be specified by the Service). Information in the observation report
must include, but is not limited to:
(i)
Date, time, and location of each walrus sighting;
(ii) Number of walruses;
(iii) Sex and age (if known);
(iv) Observer name and contact information;
(v) Weather, visibility, sea state, and sea-ice conditions at the time of observation;
(vi) Estimated range at closest approach;
(vii) Industry activity at time of sighting;
(viii) Behavior of animals sighted;
(ix) Description of the encounter;
(x) Duration of the encounter; and
(xi) Mitigation actions taken.
(3) Polar bear observation reports. Holders of an LOA must report, within 48 hours, all observations of
polar bears and potential polar bear dens, during any industry activity. Upon request, monitoring
report data must be provided in a common electronic format (to be specified by the Service).
Information in the observation report must include, but is not limited to:
(i)
Date, time, and location of observation;
(ii) Number of bears;
(iii) Sex and age of bears (if known);
(iv) Observer name and contact information;
(v) Weather, visibility, sea state, and sea-ice conditions at the time of observation;
(vi) Estimated closest distance of bears from personnel and facilities;
(vii) Industry activity at time of sighting;
(viii) Possible attractants present;
(ix) Bear behavior;
(x) Description of the encounter;
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50 CFR 18.128(a)(3)(xi)
(xi) Duration of the encounter; and
(xii) Mitigation actions taken.
(b) Notification of LOA incident report. Holders of an LOA must report, as soon as possible, but within 48
hours, all LOA incidents during any industry activity. An LOA incident is any situation when specified
activities exceed the authority of an LOA, when a mitigation measure was required but not enacted, or
when injury or death of a walrus or polar bear occurs. Reports must include:
(1) All information specified for an observation report;
(2) A complete detailed description of the incident; and
(3) Any other actions taken.
(c) Final report. The results of monitoring and mitigation efforts identified in the marine mammal monitoring
and mitigation plan must be submitted to the Service for review within 90 days of the expiration of an
LOA, or for production LOAs, an annual report by January 15th of each calendar year. Upon request, final
report data must be provided in a common electronic format (to be specified by the Service). Information
in the final (or annual) report must include, but is not limited to:
(1) Copies of all observation reports submitted under the LOA;
(2) A summary of the observation reports;
(3) A summary of monitoring and mitigation efforts including areas, total hours, total distances, and
distribution;
(4) Analysis of factors affecting the visibility and detectability of walruses and polar bears during
monitoring;
(5) Analysis of the effectiveness of mitigation measures;
(6) Analysis of the distribution, abundance, and behavior of walruses and/or polar bears observed; and
(7) Estimates of take in relation to the specified activities.
§ 18.129 Information collection requirements.
(a) We may not conduct or sponsor and a person is not required to respond to a collection of information
unless it displays a currently valid Office of Management and Budget (OMB) control number. OMB has
approved the collection of information contained in this subpart and assigned OMB 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. We will use the information to:
(1) Evaluate the request and determine whether or not to issue specific Letters of Authorization; and
(2) Monitor impacts of activities and effectiveness of mitigation measures conducted under the Letters
of Authorization.
(b) Comments regarding the burden estimate or any other aspect of this requirement must be submitted to
the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, at the address listed in 50 CFR
2.1.
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50 CFR 18.130
Subpart K—Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Activities in Cook
Inlet, Alaska
Effective Date Note: At 84 FR 37745, Aug. 1, 2019, Subpart K was added, effective Aug. 1, 2019 through Aug. 1,
2024.
§ 18.130 Specified activities covered by this subpart.
Regulations in this subpart apply to the nonlethal incidental, but not intentional, take, as defined in 50 CFR 18.3 and
under the Marine Mammal Protection Act (16 U.S.C. 1362), of small numbers of northern sea otters (Enhydra lutris
kenyoni; hereafter “otter,” “otters,” or “sea otters”) by Hilcorp Alaska, LLC, Harvest Alaska, LLC, and the Alaska
Gasline Development Corporation while engaged in activities associated with or in support of oil and gas
exploration, development, production, and transportation in Cook Inlet, Alaska.
§ 18.131 Specified geographic region where this subpart applies.
(a) The specified geographic region is Cook Inlet, Alaska, south of a line from the Susitna River Delta to Point
Possession (approximately 61°15′54″ N, 150°41′07″ W, to 61°02′19″ N, 150°23′48″ W, WGS 1984) and north
of a line from Rocky Cove to Coal Cove (approximately 59°25′56″ N, 153°44′25″ W and 59°23′48″ N,
151°54′28″ W, WGS 1984), excluding Ursus Cove, Iniskin Bay, Iliamna Bay, and Tuxedni Bay.
(b) The geographic area of this incidental take regulation (ITR) includes all Alaska State waters and Outer
Continental Shelf Federal waters within this area as well as all adjacent rivers, estuaries, and coastal lands
where sea otters may occur, except for those areas explicitly excluded in paragraph (a) of this section.
(c) Map of the Cook Inlet ITR region follows:
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50 CFR 18.132
§ 18.132 Dates this subpart is in effect.
Regulations in this subpart are effective from August 1, 2019, to August 1, 2024.
§ 18.133 Authorized take allowed under a Letter of Authorization (LOA).
(a) To incidentally take marine mammals pursuant to the regulations in this subpart,, Hilcorp Alaska, LLC,
Harvest Alaska, LLC, or the Alaska Gasline Development Corporation (hereafter “the applicant”) must
apply for and obtain an LOA in accordance with §§ 18.27(f) and 18.134. The applicant is a U.S. citizen as
defined in § 18.27(c).
(b) An LOA allows for the nonlethal, incidental, but not intentional take by harassment of sea otters during
activities specified in § 18.130 within the Cook Inlet ITR region described in § 18.131.
(c) Each LOA will set forth:
(1) Permissible methods of incidental take;
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(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat,
and the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(d) Issuance of the LOA(s) must be based on a determination that the level of take will be consistent with the
findings made for the total allowable take under these regulations in this subpart.
§ 18.134 Procedure to obtain a Letter of Authorization (LOA).
(a) The applicant must submit the request for authorization to the U.S. Fish and Wildlife Service (Service)
Alaska Region Marine Mammals Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage,
Alaska, 99503, at least 90 days prior to the start of the proposed activity.
(b) The request for an LOA must comply with the requirements set forth in §§ 18.137 through 18.139 and
must include the following information:
(1) A plan of operations that describes in detail the proposed activity (type of project, methods, and
types and numbers of equipment and personnel, etc.), the dates and duration of the activity, and the
specific locations of and areas affected by the activity. Changes to the proposed project without
prior authorization may invalidate an LOA.
(2) A site-specific marine mammal monitoring and mitigation plan to monitor and mitigate the effects of
the activity on sea otters.
(3) An assessment of potential effects of the proposed activity on subsistence hunting of sea otters.
(i)
The applicant must communicate with potentially affected subsistence communities along the
Cook Inlet coast and appropriate subsistence user organizations to discuss the location, timing,
and methods of proposed activities and identify any potential conflicts with subsistence
hunting activities.
(ii) The applicant must specifically inquire of relevant communities and organizations if the
proposed activity will interfere with the availability of sea otters for the subsistence use of
those groups.
(iii) The applicant must include documentation of consultations with potentially affected user
groups. Documentation must include a list of persons contacted, a summary of input received,
any concerns identified by community members and hunter organizations, and the applicant's
responses to identified concerns.
(iv) If any concerns regarding effects of the activity on sea otter subsistence harvest are identified,
the applicant will provide to the Service a Plan of Cooperation (POC) with specific steps for
addressing those concerns, including a schedule for ongoing community engagement and
suggested measures that will be implemented to mitigate any potential conflicts with
subsistence hunting.
§ 18.135 How the Service will evaluate a request for a Letter of Authorization (LOA).
(a) The Service will evaluate each request for an LOA to determine if the proposed activity is consistent with
the analysis and findings made for these regulations. Depending on the results of the evaluation, we may
grant the authorization, add further conditions, or deny the authorization.
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50 CFR 18.135(b)
(b) Once issued, the Service may withdraw or suspend an LOA if the project activity is modified in a way that
undermines the results of the previous evaluation, if the conditions of the regulations in this subpart are
not being substantially complied with, or if the taking allowed is or may be having more than a negligible
impact on the affected stock of sea otters or an unmitigable adverse impact on the availability of sea
otters for subsistence uses.
(c) The Service will make decisions concerning withdrawals of an LOA, either on an individual or class basis,
only after notice and opportunity for public comment in accordance with § 18.27(f)(5). The requirement
for notice and public comment will not apply should we determine that an emergency exists that poses a
significant risk to the well-being of the species or stocks of sea otters.
§ 18.136 Prohibited take under a Letter of Authorization (LOA).
(a) Except as otherwise provided in this subpart, prohibited taking is described in § 18.11 as well as:
Intentional take, lethal incidental take of sea otters, and any take that fails to comply with this subpart or
with the terms and conditions of an LOA.
(b) If project activities cause unauthorized take, the applicant must take the following actions:
(1) Cease activities immediately (or reduce activities to the minimum level necessary to maintain safety)
and report the details of the incident to the Service MMM within 48 hours; and
(2) Suspend further activities until the Service has reviewed the circumstances, determined whether
additional mitigation measures are necessary to avoid further unauthorized taking, and notified the
applicant that it may resume project activities.
§ 18.137 Mitigation.
(a) Mitigation measures for all LOAs. The applicant, including all personnel operating under the applicant's
authority (or “operators,” including contractors, subcontractors, and representatives) must undertake the
following activities to avoid and minimize take of sea otters by harassment.
(1) Implement policies and procedures to avoid interactions with and minimize to the greatest extent
practicable adverse impacts on sea otters, their habitat, and the availability of these marine
mammals for subsistence uses.
(2) Develop avoidance and minimization policies and procedures, in cooperation with the Service, that
include temporal or spatial activity restrictions to be used in response to the presence of sea otters
engaged in a biologically significant activity (e.g., resting, feeding, hauling out, mating, or nursing).
(3) Cooperate with the Service's MMM Office and other designated Federal, State, and local agencies to
monitor and mitigate the impacts of oil and gas industry activities on sea otters.
(4) Allow Service personnel or the Service's designated representative to board project vessels or visit
project work sites for the purpose of monitoring impacts to sea otters and subsistence uses of sea
otters at any time throughout project activities so long as it is safe to do so.
(5) Designate trained and qualified protected species observers (PSOs) to monitor for the presence of
sea otters, initiate mitigation measures, and monitor, record, and report the effects of the activities
on sea otters. The applicant is responsible for providing training to PSOs to carry out mitigation and
monitoring.
(6) Have an approved mitigation and monitoring plan on file with the Service MMM and onsite that
includes the following information:
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(i)
50 CFR 18.137(a)(6)(i)
The type of activity and where and when the activity will occur (i.e., a summary of the plan of
operation);
(ii) Personnel training policies, procedures, and materials;
(iii) Site-specific sea otter interaction risk evaluation and mitigation measures;
(iv) Sea otter avoidance and encounter procedures; and
(v) Sea otter observation and reporting procedures.
(7) Contact affected subsistence communities and hunter organizations to identify any potential
conflicts that may be caused by the proposed activities and provide the Service documentation of
communications as described in § 18.134.
(b) Mitigation measures for in-water noise-generating work. The applicant must carry out the following
measures:
(1) Mitigation zones. Establish mitigation zones for project activities that generate underwater sound
levels ≥160 decibels (dB) between 125 hertz (Hz) and 38 kilohertz (kHz) (hereafter “noise-generating
work”).
(i)
All dB levels are referenced to 1 µPa for underwater sound. All dB levels herein are dBRMS unless
otherwise noted; dBRMS refers to the root-mean-squared dB level, the square root of the average
of the squared sound pressure level, typically measured over 1 second.
(ii) Mitigation zones must include all in-water areas where work-related sound received by sea
otters will match the levels and frequencies in paragraph (b)(1) of this section. Mitigation zones
will be designated as follows:
(A) An Exclusion Zone (EZ) will be established throughout all areas where sea otters may be
exposed to sound levels capable of causing Level A take as shown in the table in
paragraph (b)(1)(iii) of this section.
(B) The Safety Zone (SZ) is an area larger than the EZ and will include all areas within which
sea otters may be exposed to noise levels that will likely result in Level B take as shown in
the table in paragraph (b)(1)(iii) of this section.
(C) Both the EZ and SZ will be centered on the sound source. The method of estimation and
minimum radius of each zone will be specified in any LOA issued under § 18.135 and will
be based on onsite sound source verification (SSV), if available, or the best available
science.
(D) Onsite SSV testing will be conducted prior to two-dimensional (2D) and three-dimensional
(3D) seismic surveys.
(E) Seismic surveys (2D and 3D) must be conducted using equipment that generates the
lowest practicable levels of underwater sound within the range of frequencies audible to
sea otters.
(iii) Summary of acoustic exposure thresholds for take of sea otters from underwater sound in the
frequency range 125 Hz–38 kHz:
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50 CFR 18.137(b)(2)
Table 1 to § 18.137(b)(1)(iii)
Marine mammals
Sea otters
Injury (Level A) threshold1
Impulsive
Non-impulsive
232 dB peak; 203 dB SELCUM
219 dB SELCUM
Disturbance (Level B) threshold
All
160 dBRMS.
1
Based on acoustic criteria for otariid pinnipeds from the National Marine Fisheries Service.
Sound source types are separated into impulsive (e.g., seismic, pipe driving, sub-bottom
profiler) and non-impulsive (drilling, water jet) and require estimation of the distance to the peak
received sound pressure level (peak) and 24-hr cumulative sound exposure level (SELCUM).
(2) Monitoring. Designate trained and qualified PSOs or “observers” to monitor for the presence of sea
otters in mitigation zones, initiate mitigation measures, and record and report the effects of project
work on otters for all noise-generating work.
(3) Mitigation measures for sea otters in mitigation zones. The following actions will be taken in
response to otters in mitigation zones:
(i)
Sea otters that are under no visible distress within the SZ must be monitored continuously.
Power down, shut down, or maneuver away from the sea otter if practicable to reduce sound
received by the animal. Maintain 100-m (301-ft) separation distance whenever possible.
Exposures in this zone are counted as one Level B take per animal per day.
(ii) When sea otters are observed within or approaching the EZ, noise-generating work as defined in
paragraph (b)(1) of this section must be immediately shut down or powered down to reduce the
size of the zone sufficiently to exclude the animal from the zone. Vessel speed or course may
be altered to achieve the same task. Exposures in this zone are counted as one Level A take per
animal per day.
(iii) When sea otters are observed in visible distress (for example, vocalizing, repeatedly spyhopping, or fleeing), noise-generating work as defined in paragraph (b)(1) of this section must
be immediately shut down or powered down to reduce the size of the zone sufficiently to
exclude the animal from the zone.
(iv) Following a shutdown, the noise-generating activity will not resume until the sea otter has
cleared the EZ. The animal will be considered to have cleared the EZ if it is visually observed to
have left the EZ or has not been seen within the EZ for 30 minutes or longer.
(4) Ramp-up procedures. Prior to noise-generating work, a “ramp-up” procedure must be used to
increase the levels of underwater sound from noise-generating work at a gradual rate.
(i)
Seismic surveys: A ramp-up will be used at the initial start of airgun operations and prior to
restarting after any period greater than 10 minutes without airgun operations, including a
power-down or shutdown event (described in paragraphs (b)(6) and (7) of this section). During
geophysical work, the number and total volume of airguns will be increased incrementally until
the full volume is achieved. The rate of ramp-up will be no more than 6 dB per 5-minute period.
Ramp-up will begin with the smallest gun in the array that is being used for all airgun array
configurations. During the ramp-up, the applicable mitigation zones (based on type of airgun
and sound levels produced) must be maintained. It will not be permissible to ramp up the full
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array from a complete shutdown in thick fog or at other times when the outer part of the EZ is
not visible. Ramp-up of the airguns will not be initiated if a sea otter is sighted within the EZ at
any time.
(ii) Pile/pipe driving: A ramp-up of the hammering will precede each day's pipe/pile driving
activities or if pipe/pile driving has ceased for more than 1 hour. The EZ will be determined
clear of sea otters 30 minutes prior to a ramp-up to ensure no sea otters are within or entering
the EZ. Initial hammering starts will not begin during periods of poor visibility (e.g., night, fog,
wind) when the entire EZ is not visible. The ramp-up procedure for impact hammers involves
initially starting with three soft strikes at 40 percent energy, followed by a 1-minute waiting
period followed by two subsequent three-strike sets. For vibratory hammers, initial noise
generation will be limited to 15 seconds at a reduced energy level, followed by a 1-minute
waiting period. This cycle will be repeated two additional times. Monitoring will occur during all
hammering sessions.
(iii) All activities: Any shutdown due to sea otters sighted within the EZ must be followed by a
30-minute all-clear period and then a standard full ramp-up. Any shutdown for other reasons
resulting in the cessation of the sound source for a period greater than 30 minutes must also
be followed by full ramp-up procedures. If otters are observed during a ramp-up effort or prior
to startup, a PSO must record the observation and monitor the animal's position until it moves
out of visual range. Noise-generating work may commence if, after a full and gradual effort to
ramp up the underwater sound level, the otter is outside of the EZ and does not show signs of
visible distress (for example, vocalizing, repeatedly spy-hopping, or fleeing).
(5) Startup procedures.
(i)
Visual monitoring must begin at least 30 minutes prior to, and continue throughout, ramp-up
efforts.
(ii) Visual monitoring must continue during all noise-generating work occurring in daylight hours.
(6) Power-down procedures. A power-down procedure involves reducing the volume of underwater
sound generated to prevent an otter from entering the EZ.
(i)
Whenever a sea otter is detected outside the EZ and, based on its position and motion relative
to the noise-generating work, appears likely to enter the EZ but has not yet done so, operators
may reduce power to noise-generating equipment as an alternative to a shutdown.
(ii) Whenever a sea otter is detected in the SZ, an operator may power down when practicable to
reduce Level B take.
(iii) During a power-down of seismic work, the number of airguns in use may be reduced, such that
the EZ is reduced, making the sea otters unlikely to enter the EZ. A mitigation airgun (airgun of
small volume such as the 10-in3 gun) will be operated continuously during a power-down of
seismic work.
(iv) After a power-down, noise-generating work will not resume until the sea otter has cleared the
applicable EZ. The animal will be considered to have cleared the applicable zone if it is visually
observed to have left the EZ and has not been seen within the zone for 30 minutes.
(7) Shutdown procedure. A shutdown occurs when all noise-generating work is suspended.
(i)
Noise-generating work will be shut down completely if a sea otter enters the EZ.
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(ii) The shutdown procedure will be accomplished within several seconds of the determination that
a sea otter is either in or about to enter the EZ or as soon as practicable considering worker
safety and equipment integrity.
(iii) Noise-generating work will not proceed until all sea otters have cleared the EZ and the PSOs on
duty are confident that no sea otters remain within the EZ. An otter will be considered to have
cleared the EZ if it is visually observed to have left the EZ or has not been seen within the zone
for 30 minutes.
(iv) Visual monitoring must continue for 30 minutes after use of the acoustic source ceases or the
sun sets, whichever is later.
(8) Emergency shutdown. If observations are made or credible reports are received that one or more sea
otters are within the area of noise-generating work and are indicating acute distress associated with
the work, such as any injury due to seismic noise or persistent vocalizations indicating separation of
mother from pup, the work will be immediately shut down and the Service contacted. Work will not
be restarted until review and approval by the Service.
(9) To ensure the proposed activities remain consistent with the estimated take of sea otters, operators
may not conduct 3D seismic surveys where doing so will generate underwater noise levels that are
likely to exceed acoustic exposure thresholds within areas of estimated sea otter densities greater
than 0.026 otters per km. Maps of the areas will be provided to 3D seismic operators and may be
adjusted based on SSV results. This does not apply to 2D seismic surveys.
(c) Mitigation for all in-water construction and demolition activity.
(1) The applicant must implement a minimum EZ of a 10-m radius around the in-water construction and
demolition. If a sea otter comes within or approaches the EZ, such operations must cease. A larger
EZ may be required for some activities, such as blasting, and will be specified in the LOA.
(2) All work in intertidal areas shall be conducted during low tide when the site is dewatered to the
maximum extent practicable.
(3) The applicant must evaluate alternatives to pile-supported facilities. If no practicable alternative
exists, the applicant must then evaluate the use of sound-attenuation devices such as pile caps and
cushions, bubble curtains, and dewatered cofferdams during construction. The Service may require
sound-attenuation devices or alternatives to pile-supported designs.
(d) Measures for vessel-based activities.
(1) Vessel operators must take every precaution to avoid harassment of sea otters when a vessel is
operating near these animals.
(2) Vessels must remain at least 500 m from rafts of otters unless safety is a factor.
(3) Vessels must reduce speed and maintain a distance of 100 m (328 ft) from all sea otters unless
safety is a factor.
(4) Vessels must not be operated in such a way as to separate members of a group of sea otters from
other members of the group.
(5) When weather conditions require, such as when visibility drops, vessels must adjust speed
accordingly to avoid the likelihood of injury to sea otters.
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50 CFR 18.137(d)(6)
(6) Vessels in transit and support vessels must use established navigation channels or commonly
recognized vessel traffic corridors, and must avoid alongshore travel in shallow water (<20 m)
whenever practicable.
(7) All vessels must avoid areas of active or anticipated subsistence hunting for sea otters as
determined through community consultations.
(8) Vessel operators must be provided written guidance for avoiding collisions and minimizing
disturbances to sea otters. Guidance will include measures identified in paragraphs (d)(1) through
(7) of this section.
(e) Mitigation measures for aircraft activities.
(1) Aircraft must maintain a minimum altitude of 305 m (1,000 ft) to avoid unnecessary harassment of
sea otters, except during takeoff and landing, and when a lower flight altitude is necessary for safety
due to weather or restricted visibility.
(2) Aircraft must not be operated in such a way as to separate members of a group of sea otters from
other members of the group.
(3) All aircraft must avoid areas of active or anticipated subsistence hunting for sea otters as
determined through community consultations.
(4) Unmanned aerial systems or drones must not cause take by harassment of sea otters. Measures for
avoidance of take may be required in an LOA, and may include maintaining a minimum altitude and
horizontal distance no less than 100 m away from otters, conducting continuous visual monitoring
by PSOs, and ceasing activities in response to sea otter behaviors indicating any reaction to drones.
§ 18.138 Monitoring.
(a) Operators shall work with PSOs to apply mitigation measures, and shall recognize the authority of PSOs,
up to and including stopping work, except where doing so poses a significant safety risk to personnel.
(b) Duties of PSOs include watching for and identifying sea otters, recording observation details,
documenting presence in any applicable monitoring zone, identifying and documenting potential
harassment, and working with operators to implement all appropriate mitigation measures.
(c) A sufficient number of PSOs will be available to meet the following criteria: 100 percent monitoring of EZs
during all daytime periods of underwater noise-generating work; a maximum of 4 consecutive hours on
watch per PSO; a maximum of approximately 12 hours on watch per day per PSO.
(d) All PSOs will complete a training course designed to familiarize individuals with monitoring and data
collection procedures. A field crew leader with prior experience as a sea otter observer will supervise the
PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of
marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be
made available for the Service to review.
(e) Observers will be provided with reticule binoculars (10x42), big-eye binoculars or spotting scopes (30x),
inclinometers, and range finders. Field guides, instructional handbooks, maps and a contact list will also
be made available.
(f) Observers will collect data using the following procedures:
(1) All data will be recorded onto a field form or database.
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50 CFR 18.138(f)(2)
(2) Global positioning system data, sea state, wind force, and weather will be collected at the beginning
and end of a monitoring period, every hour in between, at the change of an observer, and upon
sightings of sea otters.
(3) Observation records of sea otters will include date; time; the observer's locations, heading, and speed
(if moving); weather; visibility; number of animals; group size and composition (adults/juveniles); and
the location of the animals (or distance and direction from the observer).
(4) Observation records will also include initial behaviors of the sea otters, descriptions of project
activities and underwater sound levels being generated, the position of sea otters relative to
applicable monitoring and mitigation zones, any mitigation measures applied, and any apparent
reactions to the project activities before and after mitigation.
(5) For all otters in or near a mitigation zone, observers will record the distance from the vessel to the
sea otter upon initial observation, the duration of the encounter, and the distance at last observation
in order to monitor cumulative sound exposures.
(6) Observers will note any instances of animals lingering close to or traveling with vessels for
prolonged periods of time.
§ 18.139 Reporting requirements.
(a) Operators must notify the Service at least 48 hours prior to commencement of activities.
(b) Weekly reports will be submitted to the Service during in-water seismic activities. The reports will
summarize project activities, monitoring efforts conducted by PSOs, the number of sea otters detected,
the number exposed to sound levels greater than 160 dB, SSV results, and descriptions of all behavioral
reactions of sea otters to project activities.
(c) Monthly reports will be submitted to the Service MMM for all months during which noise-generating work
takes place. The monthly report will contain and summarize the following information: Dates, times,
weather, and sea conditions (including Cook Inlet marine state and wind force) when sea otters were
sighted; the number, location, distance from the sound source, and behavior of the otters; the associated
project activities; and a description of the implementation and effectiveness of mitigation measures with
a discussion of any specific behaviors the otters exhibited in response to mitigation.
(d) A final report will be submitted to the Service within 90 days after the expiration of each LOA. It will
include the following items:
(1) Summary of monitoring efforts (hours of monitoring, activities monitored, number of PSOs, and, if
requested by the Service, the daily monitoring logs).
(2) All project activities will be described, along with any additional work yet to be done. Factors
influencing visibility and detectability of marine mammals (e.g., sea state, number of observers, and
fog and glare) will be discussed.
(3) The report will also address factors affecting the presence and distribution of sea otters (e.g.,
weather, sea state, and project activities). An estimate will be included of the number of sea otters
exposed to noise at received levels greater than or equal to 160 dB (based on visual observation).
(4) The report will describe changes in sea otter behavior resulting from project activities and any
specific behaviors of interest.
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50 CFR 18.139(d)(5)
(5) It will provide a discussion of the mitigation measures implemented during project activities and
their observed effectiveness for minimizing impacts to sea otters. Sea otter observation records will
be provided to the Service in the form of electronic database or spreadsheet files.
(6) The report will also evaluate the effectiveness of the POC (if applicable) for preventing impacts to
subsistence users of sea otters, and it will assess any effects the operations may have had on the
availability of sea otters for subsistence harvest.
(e) All reports shall be submitted by email to [email protected].
(f) Injured, dead, or distressed sea otters that are not associated with project activities (e.g., animals known
to be from outside the project area, previously wounded animals, or carcasses with moderate to advanced
decomposition or scavenger damage) must be reported to the Service within 24 hours of the discovery to
either the Service MMM (1–800–362–5148, business hours); or the Alaska SeaLife Center in Seward
(1–888–774–7325, 24 hours a day); or both. Photographs, video, location information, or any other
available documentation shall be provided to the Service.
(g) Operators must notify the Service upon project completion or end of the work season.
§ 18.140 Measures to reduce impacts to subsistence users.
(a) Prior to conducting the work, the applicant will take the following steps to reduce potential effects on
subsistence harvest of sea otters:
(1) Avoid work in areas of known sea otter subsistence harvest;
(2) Discuss the planned activities with subsistence stakeholders including Cook Inlet villages, traditional
councils, and the Cook Inlet Regional Citizens Advisory Council;
(3) Identify and work to resolve concerns of stakeholders regarding the project's effects on subsistence
hunting of sea otters; and
(b) If any unresolved or ongoing concerns remain, develop a POC in consultation with the Service and
subsistence stakeholders to address these concerns. The POC must include a schedule for ongoing
community engagement and specific measures for mitigating any potential conflicts with subsistence
hunting.
§ 18.141 Information collection requirements.
(a) We may not conduct or sponsor, and a person is not required to respond to, a collection of information
unless it displays a currently valid Office of Management and Budget (OMB) control number. OMB has
approved the collection of information contained in this subpart and assigned OMB control number
1018–0070. The applicant must respond to this information collection request to obtain a benefit
pursuant to section 101(a)(5) of the Marine Mammal Protection Act. We will use the information to:
(1) Evaluate the application and determine whether or not to issue specific LOAs; and
(2) Monitor impacts of activities and effectiveness of mitigation measures conducted under the LOAs.
(b) Comments regarding the burden estimate or any other aspect of this requirement must be submitted to
the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, at the address listed in 50 CFR
part 2.1.
50 CFR 18.141(b) (enhanced display)
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50 CFR 18.142
Subpart L—Nonlethal Taking of Marine Mammals Incidental to Pile Driving and Marine
Construction Activities in the Gulf of Alaska
Source: 88 FR 24127, Apr. 19, 2023, unless otherwise noted.
§18.142 Specified activities covered by this subpart.
Regulations in this subpart apply to the nonlethal incidental, but not intentional, take, as defined in § 18.3 and under
section 3 of the Marine Mammal Protection Act (16 U.S.C. 1371 et seq.), of small numbers of northern sea otters
(Enhydra lutris kenyoni; hereafter “sea otters”) by the U.S. Coast Guard (hereafter “USCG” or “the applicant”) while
engaged in activities associated with or in support of marine construction activities in the Gulf of Alaska. The
applicant is a U.S. citizen as defined in § 18.27(c).
§ 18.143 Specified geographic region where this subpart applies.
(a) The specified geographic region encompasses areas within 2 kilometers (km) (∼1.25 miles (mi)) of eight
USCG facilities within the USCG Civil Engineering Unit, Juneau Area of Responsibility. These facilities are:
Base Kodiak, Moorings Seward, Moorings Valdez, Moorings Cordova, Moorings Sitka, Station Juneau,
Moorings Petersburg, and Base Ketchikan.
(b) The geographic area of the incidental take regulations (ITRs) in this subpart includes all Alaska State
waters within the areas listed in paragraph (a) of this section as well as all adjacent rivers, estuaries, and
coastal lands where sea otters may occur.
§ 18.144 Dates this subpart is in effect.
Regulations in this subpart are effective from May 19, 2023, until May 19, 2028.
§ 18.145 Procedure to obtain a Letter of Authorization (LOA).
(a) The applicant must submit the request for authorization to the U.S. Fish and Wildlife Service (Service)
Alaska Region Marine Mammals Management Office (MMM), MS 341, 1011 East Tudor Road, Anchorage,
Alaska, 99503, or by email at [email protected], at least 30 days prior to the start of the planned
activity.
(b) The request for an LOA must comply with the requirements set forth in §§ 18.149 through 18.151 and
must include the following information:
(1) An operational plan for the activity;
(2) A digital geospatial file of the project footprint, including sound isopleths;
(3) A site-specific marine mammal monitoring and mitigation plan that specifies the procedures to
monitor and mitigate the effects of the activities on sea otters; and
(4) When appropriate, a plan of cooperation, which is a documented plan that describes measures to
mitigate potential conflicts between planned project activities and subsistence hunting.
50 CFR 18.145(b)(4) (enhanced display)
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50 CFR 18.146
§ 18.146 How the Service will evaluate a request for an LOA.
(a) The Service will evaluate each request for an LOA to determine if the proposed activity is consistent with
the analysis and findings made for the regulations in this subpart. Depending on the results of the
evaluation, we may issue the LOA, add further conditions, or deny the LOA.
(b) Once issued, the Service may withdraw or suspend an LOA if the project activity is modified in a way that
undermines the results of the previous evaluation, if the conditions of the regulations in this subpart are
not being substantially complied with, or if the taking allowed is or may be having more than a negligible
impact on the affected stock of sea otters or an unmitigable adverse impact on the availability of sea
otters for subsistence uses.
(c) The Service will make decisions concerning withdrawals of an LOA, either on an individual or class basis,
only after notice and opportunity for public comment in accordance with § 18.27(f)(5). The requirement
for notice and public comment will not apply should we determine that an emergency exists that poses a
significant risk to the well-being of the species or stocks of sea otters.
§ 18.147 Authorized take allowed under an LOA.
(a) To incidentally take sea otters pursuant to the regulations in this subpart, the USCG must apply for and
obtain an LOA in accordance with §§ 18.27(f) and 18.145. The applicant is a U.S. citizen as defined in §
18.27(c).
(b) An LOA allows for the nonlethal, incidental, but not intentional take by harassment of sea otters during
activities specified in § 18.142 within the Gulf of Alaska ITR region described in § 18.143.
(c) Each LOA will set forth:
(1) Permissible methods of incidental take;
(2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, its habitat,
and the availability of the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(d) Issuance of the LOA(s) must be based on a determination that the level of take will be consistent with the
findings made for the total allowable take under the regulations in this subpart.
§ 18.148 Prohibited take under an LOA.
(a) Except as otherwise provided in this subpart, prohibited taking is described in § 18.11 as well as:
intentional take, lethal incidental take of sea otters, and any take that fails to comply with this subpart or
with the terms and conditions of an LOA.
(b) If project activities cause unauthorized take, the applicant must take the following actions:
(1) Cease activities immediately (or reduce activities to the minimum level necessary to maintain safety)
and report the details of the incident to the Service MMM at 1–800–362–5148 (business hours)
within 48 hours; and
(2) Suspend further activities until the Service has reviewed the circumstances, determined whether
additional mitigation measures are necessary to avoid further unauthorized taking, and notified the
applicant that project activities may resume.
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50 CFR 18.149
§ 18.149 Mitigation.
(a) Mitigation measures for all LOAs. The applicant, including all personnel operating under the applicant's
authority (or “operators,” including contractors, subcontractors, and representatives) must undertake the
following activities to avoid and minimize take of sea otters by harassment.
(1) Implement policies and procedures to avoid interactions with and minimize to the greatest extent
practicable adverse impacts on sea otters, their habitat, and the availability of these marine
mammals for subsistence uses.
(2) Develop avoidance and minimization policies and procedures, in cooperation with the Service, that
include temporal or spatial activity restrictions to be used in response to the presence of sea otters
engaged in a biologically significant activity (e.g., resting, feeding, hauling out, mating, or nursing).
(3) Cooperate with the Service's MMM Office and other designated Federal, State, and local agencies to
monitor and mitigate the impacts of pile driving and marine construction activities on sea otters.
(4) Allow Service personnel or the Service's designated representative to board project vessels or visit
project worksites for the purpose of monitoring impacts to sea otters and subsistence uses of sea
otters at any time throughout project activities so long as it is safe to do so.
(5) Designate trained and qualified protected species observers (PSOs) to monitor for the presence of
sea otters, initiate mitigation measures, and monitor, record, and report the effects of the activities
on sea otters. The applicant is responsible for providing training to PSOs to carry out mitigation and
monitoring.
(6) Have an approved mitigation and monitoring plan on file with the Service MMM and onsite that
includes the following information:
(i)
The type of activity and where and when the activity will occur (i.e., a summary of the plan of
operation);
(ii) Personnel training policies, procedures, and materials;
(iii) Site-specific sea otter interaction risk evaluation and mitigation measures;
(iv) Sea otter avoidance and encounter procedures; and
(v) Sea otter observation and reporting procedures.
(b) Mitigation measures for in-water noise-generating work. The applicant must carry out the following
measures:
(1) Construction activities must be conducted using equipment that generates the lowest practicable
levels of underwater sound within the range of frequencies audible to sea otters.
(2) During all pile-installation activities, regardless of predicted sound levels, a physical interaction
shutdown zone of 20 meters (m) (66 feet (ft)) must be enforced. If a sea otter enters the shutdown
zone, in-water activities must be delayed until either the animal has been visually observed outside
the shutdown zone or 15 minutes have elapsed since the last observation time without redetection
of the animal.
(3) If the impact driver has been idled for more than 30 minutes, an initial set of three strikes from the
impact driver must be delivered at reduced energy, followed by a 1-minute waiting period, before fullpowered proofing strikes.
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50 CFR 18.149(b)(4)
(4) In-water activity must be conducted in daylight. If environmental conditions prevent visual detection
of sea otters within the shutdown zone, in-water activities must be stopped until visibility is regained.
(5) All in-water work along the shoreline must be conducted during low tide when the site is dewatered
to the maximum extent practicable.
(6) When an impact hammer is used, noise-dampening block cushions or pile caps will be placed
between the hammer and pile.
(c) Mitigation measures for vessel operations. Vessel operators must take every precaution to avoid
harassment of sea otters when a vessel is operating near these animals. The applicant must carry out the
following measures:
(1) Vessels must remain at least 500 m (1,640 ft) from rafts of sea otters unless safety is a factor.
Vessels must reduce speed and maintain a distance of 100 m (328 ft) from all sea otters unless
safety is a factor.
(2) Vessels must not be operated in such a way as to separate members of a group of sea otters from
other members of the group and must avoid alongshore travel in shallow water (<20 m (∼66 ft))
whenever practicable.
(3) When weather conditions require, such as when visibility drops, vessels must adjust speed
accordingly to avoid the likelihood of injury to sea otters.
(4) Vessel operators must be provided written guidance for avoiding collisions and minimizing
disturbances to sea otters. Guidance will include measures identified in paragraph (c) of this section.
§ 18.150 Monitoring.
(a) Operators must work with PSOs to apply mitigation measures and must recognize the authority of PSOs,
up to and including stopping work, except where doing so poses a significant safety risk to personnel.
(b) Duties of PSOs include watching for and identifying sea otters, recording observation details,
documenting presence in any applicable monitoring zone, identifying and documenting potential
harassment, and working with operators to implement all appropriate mitigation measures.
(c) A sufficient number of PSOs will be available to meet the following criteria: 100 percent monitoring of
exclusion zones during all daytime periods of underwater noise-generating work; a maximum of 4
consecutive hours on watch per PSO; a maximum of approximately 12 hours on watch per day per PSO.
(d) All PSOs will complete a training course designed to familiarize individuals with monitoring and data
collection procedures. A field crew leader with prior experience as a sea otter observer will supervise the
PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of
marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be
made available for the Service to review.
(e) Observers will be provided with reticule binoculars (10×42), big-eye binoculars or spotting scopes (30×),
inclinometers, and range finders. Field guides, instructional handbooks, maps, and a contact list will also
be made available.
(f) Observers will collect data using the following procedures:
(1) All data will be recorded onto a field form or database.
50 CFR 18.150(f)(1) (enhanced display)
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50 CFR 18.150(f)(2)
(2) Global positioning system data, sea state, wind force, and weather will be collected at the beginning
and end of a monitoring period, every hour in between, at the change of an observer, and upon
sightings of sea otters.
(3) Observation records of sea otters will include date; time; the observer's locations, heading, and speed
(if moving); weather; visibility; number of animals; group size and composition (adults/juveniles); and
the location of the animals (or distance and direction from the observer).
(4) Observation records will also include initial behaviors of the sea otters, descriptions of project
activities and underwater sound levels being generated, the position of sea otters relative to
applicable monitoring and mitigation zones, any mitigation measures applied, and any apparent
reactions to the project activities before and after mitigation.
(5) For all sea otters in or near a mitigation zone, observers will record the distance from the vessel to
the sea otter upon initial observation, the duration of the encounter, and the distance at last
observation in order to monitor cumulative sound exposures.
(6) Observers will note any instances of animals lingering close to or traveling with vessels for
prolonged periods of time.
§ 18.151 Reporting requirements.
(a) Operators must notify the Service at least 48 hours prior to commencement of activities.
(b) Monthly reports will be submitted to the Service MMM for all months during which noise-generating work
takes place. The monthly report will contain and summarize the following information: dates, times,
weather, and sea conditions (including the Beaufort Scale's sea state and wind force conditions) when
sea otters were sighted; the number, location, distance from the sound source, and behavior of the sea
otters; the associated project activities; and a description of the implementation and effectiveness of
mitigation measures with a discussion of any specific behaviors the sea otters exhibited in response to
mitigation.
(c) A final report will be submitted to the Service within 90 days after the expiration of each LOA. It will
include the following:
(1) A summary of monitoring efforts (hours of monitoring, activities monitored, number of PSOs, and, if
requested by the Service, the daily monitoring logs).
(2) A description of all project activities, along with any additional work yet to be done. Factors
influencing visibility and detectability of marine mammals (e.g., sea state, number of observers, and
fog and glare) will be discussed.
(3) A description of the factors affecting the presence and distribution of sea otters (e.g., weather, sea
state, and project activities). An estimate will be included of the number of sea otters exposed to
noise at received levels greater than or equal to 160 dBRMS re: 1 µPa (decibels root-mean squared
referenced to 1 microPascal) (based on visual observation).
(4) A description of changes in sea otter behavior resulting from project activities and any specific
behaviors of interest.
(5) A discussion of the mitigation measures implemented during project activities and their observed
effectiveness for minimizing impacts to sea otters. Sea otter observation records will be provided to
the Service in the form of electronic database or spreadsheet files.
50 CFR 18.151(c)(5) (enhanced display)
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50 CFR 18.151(d)
(d) All reports must be submitted by email to [email protected].
(e) Injured, dead, or distressed sea otters that are not associated with project activities (e.g., animals known
to be from outside the project area, previously wounded animals, or carcasses with moderate to advanced
decomposition or scavenger damage) must be reported to the Service within 24 hours of the discovery to
either the Service MMM (1–800–362–5148, business hours); or the Alaska SeaLife Center in Seward
(1–888–774–7325, 24 hours a day); or both. Photographs, video, location information, or any other
available documentation must be provided to the Service.
(f) Operators must notify the Service upon project completion or end of the work season.
§ 18.152 Information collection requirements.
The Office of Management and Budget (OMB) has approved the information collection requirements contained in
this part and assigned OMB Control Number 1018–0070. Federal agencies may not conduct or sponsor, and a
person is not required to respond to, a collection of information unless it displays a currently valid OMB control
number. Direct comments regarding the burden estimate or any other aspect of the information collection to the
Service's Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).
50 CFR 18.152 (enhanced display)
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| File Modified | 0000-00-00 |
| File Created | 0000-00-00 |