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NOAA Fisheries - Marine Mammal Protection Act Incidental Take Letter of Authorization (12-FD-f)

Information current as of 2019
Section 101(a)(5) of the Marine Mammal Protection Act (MMPA) authorizes the National Marine Fisheries Service (NMFS) to issue incidental takes of marine mammals. 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 in accordance with specific regulations that prescribe permissible methods of taking and other means of affecting the least practicable adverse impact on the affected species. The specific regulations 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.

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

50 CFR 216.105 requires all applications for specific regulations and LOAs to include the information requested in 50 CFR 216.104(a), including:

  • 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-f.4 to 12-FD-f.5 – Publish Notice of Receipt of LOA Application

After the application has been reviewed and is complete, 50 CFR 216.104(b) requires the NMFS to begin the public review process by publishing a Notice of Receipt of a request for the implementation of regulations governing the incidental taking.

After notice is published in the Federal Register, the public may provide information, suggestions, and comments relating to the NMFS’ findings or the proposed IHA. See 50 CFR 216.104(c). The public comment period may last no longer than 30 days. See 50 CFR 216.104(b)(2). The NMFS considers the comments when developing the specific regulations governing the issuance of the LOA. See 50 CFR 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 the NMFS in order to determine its applicability to the LOA. If applicable, the NMFS 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

Section 101(a)(5) of the MMPA allows the NMFS 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, 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-f.11 to 12-FD-f.13 – Analyze and Review Comments; Make Preliminary Determinations; Proposed Rule

After receiving comments on the Notice of Receipt, the NMFS 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 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 Rule is drafted. The NMFS must issue its findings and the Proposed Rule for comment and publish a Notice of Availability in the Federal Register. See section 101(a)(5)(i)(I) of the MMPA; 50 CFR 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, the NMFS 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. See 50 CFR 216.104(c). 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).

Once the final determinations have been made, the NMFS publishes the final rule in the Federal Register, which includes applicable authority, a preamble, and responses to substantive comments. In addition, 50 CFR 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?

50 CFR 216.106 requires the NMFS to issue an LOA before the developer can conduct activities pursuant to the regulations established by the Final Rule. Information regarding the content of the LOA request may be obtained by writing to the NMFS. Once the request for the LOA is received, the NMFS 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, the NMFS 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, the NMFS will issue the LOA. The LOA must specify the period of validity and any additional terms and conditions appropriate for the specific request. See 50 CFR 216.106(c). Notice of issuance of all LOAs must be published in the Federal Register within 30 days of issuance. See 50 CFR 216.106(d).

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