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U.S. Fish and Wildlife Service - Marine Mammal Protection Act Incidental Harassment Authorization (12-FD-g)

Information current as of 2020
In the United States, any person (developer) may need an Incidental Harassment Authorization (IHA) from the Fish and Wildlife Service (FWS) if a project may result in the take of a marine mammal for less than one year pursuant to the Marine Mammal Protection Act, 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. Marine Mammal Protection Act, 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 the FWS 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. § 18.27.

U.S. Fish and Wildlife Service - Marine Mammal Protection Act Incidental Harassment Authorization Process

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

A developer should consult with the appropriate FWS field office if a project has the potential to result in the incidental take of marine mammals to determine whether an IHA is necessary.

12-FD-g.2 to 12-FD-g.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. See Section 101 of the MMPA. Section 101(a)(5)(A) of the MMPA authorizes the FWS 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 C.F.R. § 18.3, 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 C.F.R. § 18.27. However, if modification of the project or protective measures can prevent takes, the MMPA moratorium does not apply because there is no potential for a take.

12-FD-g.4 to 12-FD-g.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?

A developer may require an IHA from FWS if the project has the potential to result in the harassment (e.g. injury or disturbance) for a term of less than one year. 16 U.S.C. § 1371(a)(5)(A)(i); 50 C.F.R. § 18.27.

If, however, the project has the potential to result in in the incidental harassment of a marine mammal for more than 1 year or serious injury or mortality of a marine mammal, then the developer may require an Authorization (LOA), rather than an IHA, from FWS. For more information on the LOA process, see: Fish and Wildlife Service-Marine Mammal Protection Act Incidental Take Letter of Authorization Process:

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

A developer must submit a written application for an IHA to the FWS prior to initiating the project. The application for an IHA must contain the following information:

  • A description of the specific activity or class of activities that can be expected to result in incidental taking of marine mammals;
  • The dates and duration of such activity and the specific geographical region where it will occur;
  • Based upon the best available scientific information;
    • An estimate of the species and numbers of marine mammals likely to be taken by age, sex, and reproductive conditions, and the type of taking (e.g., disturbance by sound, injury or death resulting from collision, etc.) and the number of times such taking is likely to occur;
    • A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks likely to be affected by such activities;
    • The anticipated impact of the activity upon the species or stocks;
    • The anticipated impact of the activity on the availability of the species or stocks 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 population 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, where relevant, on their availability for subsistence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance;
  • A suggested means of accomplishing the necessary monitoring and reporting which will result in increased knowledge of the species through an analysis of the level of taking or impacts and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity; and
  • A suggested means of learning of, encouraging, and coordinating research opportunities, plans and activities relating to reducing such incidental taking from such specified activities, and evaluating its effects.

50 C.F.R. § 18.27(d)

After the FWS receives the application, it reviews the application materials for completeness. If additional information is necessary, the FWS may contact the applicant to request the needed information.

12-FD-g.10 to 12-FD-g.12 – Complete NEPA Process; Submit NEPA Documents for the Proposed Action to the FWS

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 FWS in order to determine its applicability to the IHA. If applicable, the FWS may adopt it.

12-FD-g.13 to 12-FD-g.14 – 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, FWS and/or the developer must initiate Section 7 Consultation prior to issuing an IHA. 16 U.S.C. § 1371(a)(4)(B).

Takings of ESA-listed marine mammals must be authorized under both the ESA and MMPA. Consequently, the FWS and federal applicants must initiate a Section 7 consultation with the ESA division of the FWS when an ESA-listed species is involved. For more information on the ESA process, see ESA Section 7 Consultation Process:

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

After receiving the application, the FWS makes preliminary determinations regarding the proposed activity’s impact on the species and the availability of the species stock for subsistence uses. If the FWS 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 FWS must issue its findings and the proposed IHA for comment and publish a notice in the Federal Register. 50 C.F.R. § 18.27(d)(2).

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. 50 C.F.R. § 18.27(d)(2). The public comment period may last for no longer than 30 days. The NMFS considers the comments, if appropriate, when developing conditions governing the issuance of the IHA.

12-FD-g.18 to 12-FD-g.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; and
  • The consistency of the proposed rule with requirements of the applicable statutes.

The final determinations may require modification of the IHA or additional mitigation measures. 50 C.F.R. § 18.27(d)(3). The FWS must make the determinations and decide whether to issue or deny the IHA within 45 days of the close of the comment period.

12-FD-g.20 to 12-FD-g.21 – Public Notice of Denial

If the FWS finds that the effects of the proposed activity on the species are not negligible, the negative finding must be published in the Federal Register, along with the basis for denial. 50 C.F.R. § 18.27(d)(4). The developer may make a request for reconsideration and appeal a denial of that request in accordance with 50 C.F.R. § 13.29.

12-FD-g.22 – Incidental Harassment Authorization

If approved, the FWS issues the IHA within 45 days of the close of the comment period. As stated above, the term of the IHA is limited to one (1) year, but it may be renewed for additional terms.

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