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NOAA Fisheries - Marine Mammal Protection Act Incidental Harassment Authorization (12-FD-e)

Information current as of 2020
In the United States, any person (developer) may need an Incidental Harassment Authorization (IHA) from NOAA Fisheries if a project may result in the take of a marine mammal for less than one year pursuant to the 16 U.S.C. §§ 1361 - 1423 (MMPA). The MMPA prohibits the take (intentional or incidental) of marine mammals unless otherwise authorized by the FWS. 16 U.S.C. § 1371.

The term "take" means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. 16 U.S.C. §§ 1362(13). The term "harassment" means any act of pursuit, torment, or annoyance which has the potential to injure or disturb a marine mammal. 16 U.S.C. § 1362(18). "Incidental harassment" refers to harassment that results from, but is not the purpose of, carrying out an otherwise lawful activity. 16 U.S.C. § 1539(a)(1)(B).

The MMPA authorizes NOAA Fisheries to issue an IHA for a term of one (1) year or less for an incidental take, which results in harassment (e.g. injury or disturbance) of marine mammals only. The IHA process requires at least 120 days, but can take six (6) months. 50 C.F.R. § 216.106.

NOAA Fisheries - Marine Mammal Protection Act Incidental Harassment Authorization Process

12-FD-e.1 - Contact NMFS if the Proposed Activity Could Result in a Take of Marine Mammals

If an action has the potential to result in the incidental harassment (e.g. "take") of marine mammals, contact the appropriate NOAA Fisheries office to determine whether an Incidental Take Authorization (IHA) is necessary.

12-FD-e.2 to 12-FD-e.3 - Can the Take be Avoided through Modification or Protective Measures?

If the action or project may be modified in a manner which prevents the harassment (e.g. "take") of marine mammals, then an IHA is not required pursuant to the MMPA. 50 C.F.R. § 216.103.

12-FD-e.4 to 12-FD-e.6 - Is there a Potential for Death or Serious Injury to Marine Mammals?; Is the Proposed Project Complicated, or Will It Last Longer than One Year?

NOAA Fisheries may issue an Incidental Harassment Authorization (IHA) if an action has the potential to result in the incidental harassment (e.g. injury or disturbance) of a marine mammal for less than one year. 16 U.S.C. § 1371(a)(5); 50 C.F.R. § 216.101.

However, if an action has the potential to result in harassment of a marine mammal for multiple years and/or may result in the mortality of marine mammals, then NOAA Fisheries may issue a Letter Of Authorization (LOA) rather than an IHA. Marine Mammal Protection Act, 16 U.S.C. §§ 1371(5)(D); 50 C.F.R. §§ 216.101 - 216.108.

For more information on the LOA process, National Marine Fisheries Service Marine Mammal Protection Act Incidental Take Letter of Authorization Process:

12-FD-e.7 to 12-FD-e.9 - Application for Incidental Harassment Authorization

A developer must submit an application for an IHA to NOAA Fisheries prior to initiating an action which may result in incidental harassment of marine mammals. 50 C.F.R. § 216.104. The IHA application must include the following information:

  • A detailed description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals;
  • The date(s) and duration of such activity and the specific geographical region where it will occur;
  • The species and numbers of marine mammals likely to be found within the activity area;
  • A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks of marine mammals likely to be affected by such activities;
  • The type of incidental taking authorization that is being requested (i.e., takes by harassment only; takes by harassment, injury and/or death) and the method of incidental taking;
  • By age, sex, and reproductive condition (if possible), the number of marine mammals (by species) that may be taken, and the number of times such takings by each type of taking are likely to occur;
  • The anticipated impact of the activity upon the species or stock of marine mammal;
  • The anticipated impact of the activity on the availability of the species or stocks of marine mammals for subsistence uses;
  • The anticipated impact of the activity upon the habitat of the marine mammal populations, and the likelihood of restoration of the affected habitat;
  • The anticipated impact of the loss or modification of the habitat on the marine mammal populations involved;
  • 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 on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance;
  • Where the proposed activity would take place in or near a traditional Arctic subsistence hunting area and/or may affect the availability of a species or stock of marine mammal for Arctic subsistence uses, the applicant must submit either a plan of cooperation or information that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses. A plan must include the following:
    • A statement that the applicant has notified and provided the affected subsistence community with a draft plan of cooperation;
    • A schedule for meeting with the affected subsistence communities to discuss proposed activities and to resolve potential conflicts regarding any aspects of either the operation or the plan of cooperation;
    • A description of what measures the applicant has taken and/or will take to ensure that proposed activities will not interfere with subsistence whaling or sealing; and
    • What plans the applicant has to continue to meet with the affected communities, both prior to and while conducting the activity, to resolve conflicts and to notify the communities of any changes in the operation;
  • The suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity. Monitoring plans should include a description of the survey techniques that would be used to determine the movement and activity of marine mammals near the activity site(s) including migration and other habitat uses, such as feeding. Guidelines for developing a site-specific monitoring plan may be obtained by writing to the Director, Office of Protected Resources; and
  • The suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking and evaluating its effects.

After NOAA Fisheries receives the application, it reviews the application materials for completeness. If the application is incomplete or inappropriate for the type of taking requested, it is returned to the applicant with an explanation. If additional information is necessary, NOAA Fisheries may contact the applicant to request a supplement.

12-FD-e.10 to 12-FD-e.12 – Complete NEPA Process

The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental consequences of their proposed actions and any reasonable alternatives before undertaking a major federal action. The issuance of a permit by a federal agency is considered a major federal action. Consequently, a NEPA analysis must be performed before an IHA can be issued. If the applicant is a federal agency, they will usually be required to perform their own NEPA analysis for the proposed activity. If a NEPA analysis has already been performed, it must be submitted to NOAA Fisheries in order to determine its applicability to the IHA. If applicable, NOAA Fisheries may adopt it.

12-FD-e.13 to 12-FD-e.14 – Will an ESA-Listed Species be Taken?; Initiate Section 7 Consultation with ESA Division

If an action may result in the incidental harassment of a marine mammal, which is also a listed endangered or threatened species under the Endangered Species Act, 16 U.S.C. §§ 1531 - 1544, NOAA Fisheries must initiate Section 7 Consultation prior to issuing an IHA. For more information on the ESA Section 7 process, see Endangered Species Act Section 7 Consultation Process:

12-FD-e.15 to 12-FD-e.17 – Make Preliminary Determinations; Prepare and Clear Federal Register Notice and Supporting Documents

After receiving the IHA application, NOAA Fisheries makes preliminary determinations regarding the proposed activity’s impact on the species and the availability of the species stock for subsistence uses. If NOAA Fisheries determines that the proposed activity will have a “negligible impact” on the species and that it will not cause an “unmitigatable adverse impact” on the availability of the stock for subsistence uses, a proposed IHA is drafted. Within 45 days of the receipt of the completed application, NOAA Fisheries must issue its findings and the proposed IHA for comment and publish a notice in the Federal Register. 50 C.F.R. § 216.104.

After notice is published in the Federal Register, the public may provide information, suggestions, and comments relating to NOAA Fisheries findings or the proposed IHA. 50 C.F.R. § 216.104(c). The public comment period may last for no longer than 30 days. 50 C.F.R. § 216.104(b)(2). NOAA Fisheries considers the comments, if appropriate, when developing conditions governing the issuance of the IHA. 50 C.F.R. § 216.104(c).

12-FD-e.18 to 12-FD-e.19 – Make Determinations Necessary for Issuance of IHA

After the close of the public comment period, NOAA Fisheries must finalize the determinations necessary for the issuance of the IHA. The final determinations are based on:

  • A review and analysis of the public comments;
  • The final findings of the ESA consultation and the associated biological opinion;
  • The final findings of the NEPA process;
  • The developer’s ability to implement necessary mitigation to comply with the MMPA, the ESA and NEPA;
  • The consistency of the proposed rule with requirements of the applicable statutes.

The final determinations may require modification of the IHA or require additional mitigation measures. 50 C.F.R. § 216.104(c). NOAA Fisheries must make the determinations and decide whether to issue or deny the IHA within 45 days of the close of the comment period. 50 C.F.R. § 216.107(c).

12-FD-e.20 – Public Notice of Denial

If, after the public comment period, NOAA Fisheries finds that the effects of the proposed activity on the species are not negligible, a denial must be published in the Federal Register, along with a basis for the decision. 50 C.F.R. § 216.104(b)-(d).

12-FD-e.21 to 12-FD-e.22 – Incidental Harassment Authorization

NOAA Fisheries will issue an IHA if the "the number of marine mammals taken by harassment will be small, will have a negligible impact on the species or stock of marine mammal(s), and will not have an unmitigable adverse impact on the availability of species or stocks for taking for subsistence uses." 50 C,F.R. § 216.107(b). The IHA must set forth:

  • Permissible methods of taking by harassment;
  • Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and
  • Requirements for monitoring and reporting, including requirements for the independent peer-review of proposed monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses. 50 C.F.R. § 216.107(a).

As stated above, the term of the IHA is limited to one year, but it may be renewed for additional terms. NOAA Fisheries must publish a Notice of Issuance of the IHA in the Federal Register within 30 days of the determination. The Notice of Issuance should include responses to public comments made during the comment period.

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