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

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, 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 FWS MMPA incidental take authorization process are located at 50 CFR 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

If there is a potential for a take of marine mammals as defined under the MMPA, contact the appropriate Fish and Wildlife Service (FWS) office to big the incidental take authorization process.

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 CFR 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 CFR 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. If the MMPA does not apply, no permit is required.

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?

Section 101(a)(5) of the MMPA authorizes the FWS to issue two different types of permits. Section 101(a)(5)(A) allows the FWS 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 FWS 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 FWS 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 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

50 CFR 18.27(d) requires the developer to submit a written application for an IHA to the FWS before it can consider authorizing a taking. The request must include 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.

After the FWS receives the application, it reviews the application materials for completeness. If additional information is necessary, the NMFS 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

Section 101(a)(5) of the MMPA allows the FWS 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 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. See Section 101(a)(5)(i)(I) of the MMPA; 50 CFR 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. See 50 CFR 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. See 50 CFR 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. See 50 CFR 18.27(d)(4). The developer may make a request for reconsideration and appeal a denial of that request in accordance with 50 CFR 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 year, but it may be renewed for additional terms.

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