C.F.R. » Title 50 » CHAPTER II—NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE › SUBCHAPTER C—MARINE MAMMALS › PART 216—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS › Subpart I—General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities

50 C.F.R. § 216.102

Scope

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The taking of small numbers of marine mammals under section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service:

(a) Finds, based on the best scientific evidence available, that the total taking by the specified activity during the specified time period will have a negligible impact on species or stock of marine mammal(s) and will not have an unmitigable adverse impact on the availability of those species or stocks of marine mammals intended for subsistence uses;

(b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an incidental harassment authorization issued under § 216.107, setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species or stock of marine mammal and its habitat and on the availability of the species or stock of marine mammal for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and

(c) Prescribes either regulations or requirements and conditions contained within an incidental harassment authorization, as appropriate, pertaining to the monitoring and reporting of such taking. The specific regulations governing certain specified activities are contained in subsequent subparts of this part.

Notes of Decisions
Cited in 2 cases, 2014–2015 · leading case: Conservation Council for Hawaii v. Nat'l Marine Fisheries Serv., 97 F. Supp. 3d 1210 (D. Haw. 2015).
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Conservation Council for Hawaii v. Nat'l Marine Fisheries Serv., 97 F. Supp. 3d 1210 (D. Haw. 2015). “” Under 50 C.F.R. § 216.102 (a), NMFS was required to use the “best scientific evidence available” in making its finding of “negligible impact.”
Nat. Resources Def. Council v. Pritzker, 62 F. Supp. 3d 969 (N.D. Cal. 2014). · cites it 4× “” 50 C.F.R. §§ 216.102 (a); 216.105(c) (“The taking of small numbers of marine mammals under section 101(a)(5)(A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service: (a) Finds, based on the best scientific evidence…”
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