NOAA Fisheries - Marine Mammal Protection Act Incidental Take Letter of Authorization (12-FD-f)
The MMPA authorizes NOAA Fisheries to issue a Letter of Authorization (LOA) for a term of five (5) years or less for incidental takes that may cause death or serious injury to marine mammals. Marine Mammal Protection Act, 16 U.S.C. § 1371(a)(5)(A)(i); 50 C.F.R. § 216.106. The LOA must be in accordance with specific regulations, called Incidental Take Regulations (ITRs), that prescribe permissible methods of taking and other means of effecting the least practicable adverse impact on the affected species. The ITRs are issued as part of the permitting process and apply specifically to the proposed activity. They are promulgated in the Final Rule, which is issued in advance of the LOA. The LOA process takes between 8 and 18 months and involves two comment periods, possible public hearings, and consultations. The LOA may also be used for multiyear or complex projects, even when there is no potential for death or serious injury to marine mammals. 50 C.F.R. § 216.106.
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).
NOAA Fisheries - Marine Mammal Protection Act Incidental Take Letter of Authorization Process
12-FD-f.1 to 12-FD-f.3 – Application for Regulations and Associated Letter of Authorization
A developer must submit an application for an LOA to NOAA Fisheries, which includes the following:
- 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-f.4 to 12-FD-f.5 – Publish Notice of Receipt of LOA Application
After notice is published in the Federal Register, the public may provide information, suggestions, and comments relating to NOAA Fisheries findings or the proposed LOA. 50 C.F.R. § 216.104(c). The public comment period is open for no longer than 30 days. 50 C.F.R. § 216.104(b)(2). NOAA Fisheries considers the comments when developing the specific regulations governing the issuance of the LOA. 50 C.F.R. § 216.104(c).
12-FD-f.6 to 12-FD-f.8 – Complete NEPA Process; Submit NEPA Documents for the Proposed Action to the NMFS
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 LOA 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 LOA. If applicable, NOAA Fisheries may adopt it.
12-FD-f.9 to 12-FD-f.10 – Will an ESA-Listed Species be Taken? Initiate Section 7 Consultation with ESA Division
If an action may result in the incidental take 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 and/or the developer must initiate Section 7 Consultation prior to issuing an LOA. The MMPA allows NOAA Fisheries to authorize incidental takes of marine mammals listed on the Endangered Species Act (ESA) endangered species list. Takings of ESA-listed marine mammals must be authorized under both the ESA and MMPA. Consequently, NOAA Fisheries and/or the developer must initiate a Section 7 consultation with the ESA division of NOAA Fisheries when an ESA-listed species is involved. For more information on the ESA process, see Endangered Species Act Section 7 Consultation Process:
12-FD-f.11 to 12-FD-f.13 – Analyze and Review Comments; Make Preliminary Determinations; Proposed Rule
After receiving comments on the Notice of Receipt, NOAA Fisheries analyzes the comments and 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 Rule is drafted. NOAA Fisheries must issue its findings and the Proposed Rule for comment and publish a Notice of Availability in the Federal Register. 50 C.F.R. § 216.104.
12-FD-f.14 to 12-FD-f.15 – Make Determinations Necessary for Issuance of Regulations and LOA; Final Rule
After the close of the public comment period, NOAA Fisheries must finalize the determinations necessary for the issuance of the specific regulations and the LOA. 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 applicable statutes.
The final determinations may require modification of the regulations or require additional mitigation measures. 50 C.F.R. § 216.104(c). 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).
Once the final determinations have been made, NOAA Fisheries publishes the final rule in the Federal Register, which includes applicable authority, a preamble, and responses to substantive comments. In addition, 50 C.F.R. § 216.105 requires the regulations to set forth:
- Permissible methods of taking;
- 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
- 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.
12-FD-f.16 to 12-FD-f.17 – Request LOA; Is the LOA Approved?
NOAA Fisheries must issue an LOA before the developer can conduct activities pursuant to the regulations established by the Final Rule. 50 C.F.R. § 216.106 Information regarding the content of the LOA request may be obtained by writing to NOAA Fisheries. Once the request for the LOA is received, NOAA Fisheries determines whether to issue the LOA based on whether the level of taking is consistent with the findings made for the total taking allowable under the Final Rule.
12-FD-f.18 – Issue Denial
If the level of taking requested by the developer is not consistent with the Final Rule and the regulations contained therein, NOAA Fisheries will deny the LOA request.
12-FD-f.19 to 12-FD-f.20 – Letter of Authorization
If the level of taking requested by the developer is consistent with the Final Rule and the regulations contained therein, NOAA Fisheries will issue the LOA. The LOA must specify the period of validity and any additional terms and conditions appropriate for the specific request. 50 C.F.R. § 216.106(c). Notice of issuance of all LOAs must be published in the Federal Register within 30 days of issuance. 50 C.F.R. § 216.106(d).
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