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

Information current as of 2019
Authorization for the incidental taking (other than due to commercial fishing) of a marine mammal is governed by Section 101 of the Marine Mammal Protection Act (MMPA). Depending on the type of take and complexity/duration of the activity, there are two processes for authorizing incidental take. If there is the potential for mortality or serious injury, section 101(a)(5)(A) allows for the promulgation of regulations and subsequent issuance of Letters of Authorization (LOAs). This process can take 12 to 18 months, depending on various factors. If there is no potential for mortality (or serious injury under NMFS’ regulations), an Incidental Harassment Authorization (IHA) may be issued under Section 101(a)(5)(D) for no more than a 1-year period. The IHA process requires at least 120 days, but can take 6 months. Regulations governing the NMFS MMPA incidental take authorization process are located at 50 CFR 216.101 to 50 CFR 216.108.

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 there is a potential for a take of marine mammals as defined under the MMPA, contact the appropriate National Marine Fisheries Service (NMFS) office to consult the incidental take authorization process.

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

The MMPA places a moratorium on the taking of marine mammals, with limited exceptions. Section 101 of Marine Mammal Protection Act. Section 101(a)(5)(A) of the MMPA authorizes the NMFS to issue permits for the "incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock..." Take, according to 50 CFR 216.3, means "to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal." An incidental taking is an accidental taking. See 50 CFR 216.103. However, if modification of the project or protective measures can prevent accidental takes, the MMPA moratorium does not apply because there is no potential for a take. If the MMPA does not apply, no permit is required.

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?

Section 101(a)(5) of the MMPA authorizes the NMFS to issue two different types of permits. Section 101(a)(5)(A) allows the NMFS to issue a Letter of Authorization (LOA) for a term of five years or less for incidental takes that may cause death or serious injury to marine mammals. The LOA must be accompanied by specific regulations that prescribe permissible methods of taking and other means of affecting the least practicable adverse impact on the affected species.

Section 101(a)(5)(D) of the MMPA allows the NMFS to issue an Incidental Harassment Authorization (IHA). The IHA must be for a period of one year or less, and it does not apply if the affected species are seriously harmed or killed. The NMFS does not need to promulgate specific regulations for an IHA, and the application process is shorter. However, because of the short duration of the IHA, complex and multi-year projects should be authorized under Section 101(a)(5)(A).

If the proposed activity requires an LOA, as opposed to an IHA, see 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

50 CFR 216.104 requires the developer to submit an application for an IHA to the NMFS before it can consider authorizing a taking. The request 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 the NMFS 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, the NMFS 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 the NMFS in order to determine its applicability to the IHA. If applicable, the NMFS 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

Section 101(a)(5) of the MMPA allows the NMFS to authorize incidental takes of Endangered Species Act (ESA) listed marine mammals. Takings of ESA-listed marine mammals must be authorized under both the ESA and MMPA. Consequently, the NMFS and federal applicants must initiate a section 7 consultation with the ESA division of the NMFS when an ESA-listed species is involved. For more information on the ESA 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 application, the NMFS makes preliminary determinations regarding the proposed activity’s impact on the species and the availability of the species stock for subsistence uses. If the NMFS 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, the NMFS must issue its findings and the proposed IHA for comment and publish a notice in the Federal Register. See section 101(a)(5)(i)(I) of the MMPA; 50 CFR 216.104.

After notice is published in the Federal Register, the public may provide information, suggestions, and comments relating to the NFMS’ findings or the proposed IHA. See 50 CFR 216.104(c). The public comment period may last for no longer than 30 days. See 50 CFR 216.104(b)(2). The NMFS considers the comments, if appropriate, when developing conditions governing the issuance of the IHA. See 50 CFR 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, the NMFS 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. See 50 CFR 216.104(c). The NMFS must make the determinations and decide whether to issue or deny the IHA within 45 days of the close of the comment period. See 50 CFR 216.107(c).

12-FD-e.20 – Public Notice of Denial

If, after the public comment period, the NMFS 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. See 50 CFR 216.104(b)-(d).

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

The NMFS 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." See 50 CFR 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.

See 50 CFR 216.107(a).

As stated above, the term of the IHA is limited to one year, but it may be renewed for additional terms. The NMFS 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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