50 C.F.R. Subpart C—General Exceptions
Title 50 - Wildlife and Fisheries
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. (a) A Federal, State or local government official or employee may take a marine mammal in the course of his duties as an official or employee and no permit shall be required, if such taking: (1) Is accomplished in a humane manner; (2) Is for the protection or welfare of such mammal or from the protection of the public health or welfare; and (3) Includes steps designed to insure return of such mammal, if not killed in the course of such taking, to its natural habitat. In addition, any such official or employee may, incidental to such taking, possess and transport, but not sell or offer for sale, such mammal and use any port, harbor or other place under the jurisdiction of the United States. All steps reasonably practicable under the circumstances shall be taken by any such employee or official to prevent injury or death to the marine mammal as the result of such taking. (b) Each taking permitted under this section should be included in a written report, to be submitted to the Director every six months, beginning December 31, 1973. Unless otherwise permitted by the Director, the report shall contain a description of: (1) The animal involved; (2) The circumstances requiring the taking; (3) The method of taking; (4) The name and official position of the State official or employee involved; (5) The disposition of the animal, including in cases where the animal has been retained in captivity, a description of the place and means of confinement and the measures taken for its maintenance and care; and (6) Such other information as the Director may require. The reports shall be mailed to the Director, U.S. Fish and Wildlife Service, U.S. Department of the Interior, Washington, DC 20240. [39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986] (a) Taking. Except as otherwise provided in part 403 of this title, any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean may take any marine mammal without a permit, subject to the restrictions contained in this section, if such taking is: (1) For subsistence purposes, or (2) For purposes of creating and selling authentic native articles of handicraft and clothing, and (3) In each case, not accomplished in a wasteful manner. (b) Restrictions. (1) “Except for a transfer to a duly authorized representative of the Regional Director of the U.S. Fish and Wildlife Service for scientific research purposes, no marine mammal taken for subsistence may be sold or otherwise transferred to any person other than an Alaskan Native or delivered, carried, transported, or shipped in interstate or foreign commerce, unless: (i) It is being sent by an Alaskan Native directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Alaskan Native; or (ii) It is sold or transferred to a registered agent in Alaska for resale or transfer to an Alaskan Native; or (iii) It is an edible portion and it is sold in an Alaskan Native village or town. (2) “Except for a transfer to a duly authorized representative of the Regional Director of the U.S. Fish and Wildlife Service for scientific research purposes, no marine mammal taken for purposes of creating and selling authentic Native articles of handicraft and clothing may be sold or otherwise transferred to any person other than an Indian, Aleut or Eskimo, or delivered, carried, transported or shipped in interstate or foreign commerce, unless: (i) It is being sent by an Indian, Aleut or Eskimo directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be returned directly or through a registered agent to the Indian, Aleut or Eskimo; or (ii) It is sold or transferred to a registered agent for resale or transfer to an Indian, Aleut, or Eskimo; or (iii) It has been first transformed into an authentic Native article of handicraft or clothing; or (iv) It is an edible portion and it is sold (A) in an Alaskan Native village or town or (B) to an Alaskan Native for his consumption. (c) The restriction in paragraph (b) shall not apply to parts or products of the Pacific walrus (Odobenis rosmarus) to the extent that the waiver of the moratorium and the approved State/Federal regulations relating to the taking and importation of walrus permits the delivery, sale, transportation or shipment of parts or products of the Pacific walrus in interstate or foreign commerce. (d) Any tannery, or person who wishes to act as an agent, within the jurisdiction of the United States may apply to the Director for registration as a tannery or an agent which may possess and process marine mammal products for Indians, Aleuts, or Eskimos. The application shall include the following information: (1) The name and address of the applicant; (2) A description of the applicant's procedures for receiving, storing, processing, and shipping materials; (3) A proposal for a system of bookkeeping and/or inventory segregation by which the applicant could maintain accurate records of marine mammals received from Indians, Aleuts, or Eskimos, pursuant to this section; (4) Such other information as the Director may request; (5) A certification in the following language:
I hereby certify that the foregoing information is complete, true, and correct to the best of my knowledge and belief. I understand that this information is submitted for the purpose of obtaining the benefit of an exception under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361–1407) and regulations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001. (6) The signature of the applicant. The sufficiency of the application shall be determined by the Director, and in that connection, he may waive any requirement for information, or require any elaboration or further information deemed necessary. The registration of a tannery or other agent shall be subject to the conditions as the Director prescribes, which may include, but are not limited to provisions regarding records, inventory segregation, reports, and inspection. The Director may charge a reasonable fee for such applications, including an appropriate apportionment of overhead and administrative expenses of the Department of Interior. (e) Notwithstanding the preceding provisions of this section, whenever, under the Act, the Secretary determines any species or stock of marine mammals to be depleted, he may prescribe regulations pursuant to section 103 of the Act upon the taking of such marine mammals by any Indian, Aleut, or Eskimo and, after promulgation of such regulations, all takings of such marine mammals by such person shall conform to such regulations. (f) Marking, tagging, and reporting. (1) In addition to definitions contained in the Act, 50 CFR 18.3, and 50 CFR 18.27, in this paragraph (f): (i) The term “marking and tagging” of marine mammals as specified in section 109(i) of the Act refers to the actual physical attachment of an approved band or other such marking device or technique to the raw or unhandicrafted (including unmarked tanned skins) skin and skull of polar bears, the tusks of walruses, and the skin and skull of sea otters; and (ii) The term “reporting” means the collection by Service personnel or the Service's authorized local representatives of biological data, harvest data, and other information regarding the effect of taking of marine mammals on populations, the collection of which the Service determines to be necessary for management purposes. Reporting will be done on forms provided by the Service upon presentation for marking, tagging, and reporting purposes of the marine mammal(s) or specified raw or unhandicrafted parts thereof. (2) Notwithstanding the preceding provisions of this section, but subject to the provisions and conditions contained in this paragraph, no polar bear, walrus, or sea otter, or any parts thereof, taken or collected by an Alaskan Native for subsistence purposes or for purposes of creating and selling authentic Native articles of handicrafts and clothing may be possessed, transported within, or exported from Alaska unless the animal(s), or specified parts thereof, have been reported to, and properly marked and tagged by, Service personnel or the Service's authorized local representative; except: (i) An Alaskan Native that harvested or participated in the harvest of a polar bear, sea otter, or walrus and who possesses the animal, or any parts thereof, may possess the unmarked, untagged, and unreported animal(s), or parts thereof, for a period of time not to exceed 30 days from the time of taking for the purpose of transporting the specified parts to Service personnel or the Service's local authorized representative for marking, tagging, and reporting; (ii) Alaskan Natives and registered agents/tanneries may possess the specified unmarked or untagged raw, unhandicrafted, or tanned parts thereof for a period of time not to exceed 180 days from the effective date of this rulemaking for the purpose of transporting to Service personnel or the Service's local authorized representative for marking and tagging if the specified parts thereof were taken or possessed between December 21, 1972, and the effective date of this regulation. There is no reporting requirement for marine mammals, or specified parts thereof, covered by this paragraph. (3) Those unmarked, untagged, and unreported specified parts of polar bear, walrus, and sea otter, that must be presented to Service personnel or an authorized Service representative for marking, tagging, and reporting are as follows: (i) Polar bear—skin and skull. (ii) Walrus—tusks. (iii) Sea otter—skin and skull. (4) The locations where Service personnel or the Service's authorized local representative will be available for marking, tagging, and reporting purposes will be announced annually by the Alaska Regional Director. Local persons authorized to act as representatives for marking, tagging, and reporting purposes in the absence of Service personnel will also be announced annually by the Alaska Regional Director. (5) Marks and tags will be attached or applied to the skins, skulls, and tusks of the marine mammal(s) in such a manner as to maximize their longevity and minimize their adverse effects to the appearance of the specified parts that might result due to hindering the tanning or handicrafting of skins, or the handicrafting of tusks or skulls. If the tag or mark comes off of the specified part the person in possession of the part shall have 30 days to present the part and broken tag or other marking device to the Service or the Service's authorized local representative for remarking or retagging purposes. (6) Marks and tags for skins, skulls, and tusks will be provided by the Service. They will be numbered for accountability and of such design, construction, and material so as to maximize their durability and longevity on the specified parts. (7) Data collected pursuant to this paragraph will be reported on forms provided by the Service and maintained in the Service's Regional Office, Anchorage, Alaska. The Service will summarize the data annually and make it publicly available. The data will also be included in the Service's annual report to Congress as set forth in section 103(f) of the Act. (8) All items of research (e.g., radio collars, satellite transmitters, tags, etc.) that were attached to animals taken by Alaskan Natives must be returned to Service personnel or an authorized Service representative at the time the animal, or specified unhandicrafted parts thereof, are presented for marking, tagging, and reporting. No penalty will be imposed under the Act for a violation of this paragraph. However, penalties may be sought by the Service under other applicable Federal laws governing the possession and use of Federal property. (9) Pursuant to this paragraph (f), the following specific conditions and provisions apply: (i) Marking, tagging, and reporting of polar bears or specified parts thereof. (A) The skin and skull of an animal must accompany each other when presented for marking, tagging, and reporting except that the skin and skull of an animal need not be presented together for marking and tagging purposes if taken between December 21, 1972, and the effective date of this regulation. (B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alaskan Natives when presenting polar bears, or specified parts thereof, for marking and tagging: sex of animal, date of kill, and location of kill. (C) Both the skin and the skull will be marked and tagged and a rudimentary pre-molar tooth may be removed from the skull and retained by the Service. The skin must have the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, either attached to, or accompanying the skin. (D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats, penal sheath or baculum, must be visible. (E) Marks and tags must remain affixed to the skin through the tanning process and until the skin has been severed into parts for crafting into handicrafts or for as long as is practical during the handicrafting process. (ii) Marking, tagging, and reporting of walrus or specified parts thereof. (A) The paired tusks of the animal(s) must, to the maximum extent practical, accompany each other when presented for marking, tagging, and reporting purposes, except that paired tusks need not be presented together for marking and tagging purposes if taken between December 21, 1972, and the effective date of this regulation. (B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alaskan Natives when presenting walrus, or specified parts thereof, for marking and tagging: date of take, sex of animal, whether live-killed, floating-dead, or beach-found, and location of the take or location of animal if found floating and dead or beach-found. (C) Marks and/or tags must remain affixed to the tusks until they have been crafted into a handicraft or for as long as is practical during the handicrafting process. (iii) Marking, tagging, and reporting of sea otter or specified parts thereof. (A) The skin and skull of an animal must accompany each other when presented for marking, tagging, and reporting, except that the skin and skull of an animal need not be presented together if taken between December 21, 1972, and the effective date of this regulation. (B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alaskan Natives when presenting sea otters, or specified parts thereof, for marking and tagging: date of kill, sex of animal, and location of kill. (C) Both the skin and skull will be marked and tagged and a rudimentary pre-molar tooth may be removed from the skull and retained by the Service. The skin must have the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, either attached to, or accompanying the skin. (D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, must be visible. (E) Marks and tags must remain affixed to the skin through the tanning process and until the skin has been severed into parts for crafting into handicrafts or for as long as is practical during the handicrafting process. (10) No person may falsify any information required to be set forth on the reporting form when the marine mammal(s), or specified parts thereof, are presented as required by these regulations. (11) Possession by any person of marine mammal(s), or any parts thereof, in violation of the provisions and conditions of this §18.23(f) is subject to punishment under the penalties provided for in section 105(a)(1) of the Act. (12) The information collection requirements contained in this §18.23(f) have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1018–0066. The information is mandatory in order to have the marine mammal parts “marked and tagged,” and thereby made eligible for continued lawful possession. Non-response may result in the Service determining the wildlife to be illegally possessed and subject the individual to penalties under this title. [39 FR 7262, Feb. 25, 1974, as amended at 40 FR 59444, Dec. 24, 1975; 45 FR 54057, Aug. 14, 1980; 51 FR 17981, May 16, 1986; 53 FR 24283, June 28, 1988] 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. (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 (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. (a) Any bones, teeth or ivory of any dead marine mammal may be collected from a beach or from land within (b) Marine mammal parts so collected may be retained if registered within 30 days with an agent of the National Marine Fisheries Service, or an agent of the U.S. Fish and Wildlife Service. (c) Registration shall include (1) the name of the owner, (2) a description of the article to be registered and (3) the date and location of collection. (d) Title to any marine mammal parts collected under this section is not transferable, unless consented to in writing by the agent referred to in paragraph (b) of this section. [39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986] (a) Purpose of regulations. The regulations in this section implement Section 101(a)(5) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon request, during periods of not more than five consecutive years each, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region. (b) Scope of regulations. The taking of small numbers of marine mammals under section 101(a)(5) of the Marine Mammal Protection Act may be allowed only if the Director of the Fish and Wildlife Service (1) finds, based on the best scientific evidence available, that the total taking during the specified time period will have a negligible impact on the species or stock and will not have an unmitigable adverse impact on the availability of the species or stock for subsistence uses; (2) prescribes regulations setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and (3) prescribes regulations pertaining to the monitoring and reporting of such taking. Note: The information collection requirement contained in this §18.27 has been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clearance No. 1018–0070. The information is being collected to describe the activity proposed and estimate the cumulative impacts of potential takings by all persons conducting the activity. The information will be used to evaluate the application and determine whether to issue Specific Regulations and, subsequently, Letters of Authorization. Response is required to obtain a benefit. The public reporting burden from this requirement is estimated to vary from 2 to 200 hours per response with an average of 10 hours per response including time for reviewing instructions, gathering and maintaining data, and completing and reviewing applications for specific regulations and Letters of Authorization. Direct comments regarding the burden estimate or any other aspect of this requirement to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, Department of the Interior, Mail Stop—220 ARLSQ, 18th and C Streets NW., Washington, DC 20240, and the Office of Management and Budget, Paperwork Reduction Project (Clearance No. 1018–0070), Washington, DC 20503. (c) Definitions. In addition to definitions contained in the Act and in 50 CFR 18.3 and unless the context otherwise requires, in this section: Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13). U.S. Federal, State and local government agencies shall also constitute citizens of the United States for purposes of this section. Incidental, but not intentional, taking means takings which are infrequent, unavoidable, or accidental. It does not mean that the taking must be unexpected. (Complete definition of take is contained in 50 CFR 18.3.) Negligible impact is an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival. Small numbers means a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock. Specified activity means any activity, other than commercial fishing, which takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals. The specified activity and specified geographical region should be identified so that the anticipated effects on marine mammals will be substantially similar. Specified geographical region means an area within which a specified activity is conducted and which has similar biogeographic characteristics. Unmitigable adverse impact means an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsistence users, or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. (d) Submission of requests. (1) In order for the Fish and Wildlife Service to consider allowing the taking by U.S citizens of small numbers of marine mammals incidental to a specified activity, a written request must be submitted to the Director, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240. Requests shall include the following information on the activity as a whole, which includes, but is not limited to, an assessment of total impacts by all persons conducting the activity: (i) A description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals; (ii) The dates and duration of such activity and the specific geographical region where it will occur; (iii) Based upon the best available scientific information; (A) An estimate of the species and numbers of marine mammals likely to be taken by age, sex, and reproductive conditions, and the type of taking (e.g., disturbance by sound, injury or death resulting from collision, etc.) and the number of times such taking is likely to occur; (B) A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks likely to be affected by such activities; (C) The anticipated impact of the activity upon the species or stocks; (D) The anticipated impact of the activity on the availability of the species or stocks for subsistence uses; (iv) The anticipated impact of the activity upon the habitat of the marine mammal populations and the likelihood of restoration of the affected habitat; (v) The anticipated impact of the loss or modification of the habitat on the marine mammal population involved; (vi) The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and, where relevant, on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. (The applicant and those conducting the specified activity and the affected subsistence users are encouraged to develop mutually agreeable mitigating measures that will meet the needs of subsistence users.); (vii) Suggested means of accomplishing the necessary monitoring and reporting which will result in increased knowledge of the species through an analysis of the level of taking or impacts and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity; and (viii) Suggested means of learning of, encouraging, and coordinating research opportunities, plans and activities relating to reducing such incidental taking from such specified activities, and evaluating its effects. (2) The Director shall determine the adequacy and completeness of a request, and if found to be adequate, will invite information, suggestions, and comments on the preliminary finding of negligible impact and on the proposed specific regulations through notice in the (3) The Director shall evaluate each request to determine, based on the best available scientific evidence, whether the total taking will have a negligible impact on the species or stock and, where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. If the Director finds that mitigating measures would render the impact of the specified activity negligible when it would not otherwise satisfy that requirement, the Director may make a finding of negligible impact subject to such mitigating measures being successfully implemented. Any preliminary findings of “negligible impact” and “no unmitigable adverse impact” shall be proposed for public comment along with the proposed specific regulations. (4) If the Director cannot make a finding that the total taking will have a negligible impact in the species or stock or will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses, the Director shall publish in the (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 (4) Letters of Authorization will specify the period of validity and any additional terms and conditions appropriate for the specific request. (5) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as appropriate, if, after notice and opportunity for public comment, the Director determines: (i) The regulations prescribed are not being substantially complied with, or (ii) the taking allowed is having, or may have, more than a negligible impact on the species or stock, or where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses. (6) The requirement for notice and opportunity for public review in paragraph (f)(5) of this section shall not apply if the Director determines that an emergency exists which poses a significant risk to the well-being of the species or stocks of marine mammals concerned. (7) A violation of any of the terms and conditions of a Letter of Authorization or of the specific regulations may subject the Holder and/or any individual who is operating under the authority of the Holder's Letter of Authorization to penalties provided in the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361–1407). [48 FR 31225, July 7, 1983, as amended at 54 FR 40348, Sept. 29, 1989; 55 FR 28765, July 13, 1990; 56 FR 27463, June 14, 1991]
Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS
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.
