Wednesday, June 17, 2015

Incidental Take Authorizations under the Marine Mammal Protection Act (MMPA)

Incidental Take Authorizations under the MMPA

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Application Instructions

Credit: U.S. Navy

What is an incidental take?

Incidental take is an unintentional, but not unexpected, “take”. Taking is prohibited, with certain exceptions, under the Marine Mammal Protection Act (MMPA). However, the MMPA allows, upon request, the incidental take of small numbers of marine mammals by U.S. citizens who engage in a specified activity--other than commercial fishing*--within a specified geographic region. (*Incidental take during commercial fishing operations is covered under the Marine Mammal Authorization Program).

What types of activities may result in incidental take?

Most incidental take authorizations have been issued for activities that produce underwater sound. Some activities include:

Military sonar and training exercises
Oil and gas development, exploration, production, and abandonment projects
Geophysical surveys for other energy and scientific research projects
Pile driving associated with construction projects
Explosive structure removal

What determinations must be made for an authorization to be issued?

We authorize incidental take under the MMPA to U.S. citizens and U.S.-based companies, if we find that the taking would:

be of small numbers,
have no more than a "negligible impact" on those marine mammal species or stocks, and
not have an "unmitigable adverse impact" on the availability of the species or stock for "subsistence" uses.

We authorize the permissible methods of taking and require mitigation, monitoring, and reporting of such takings, which are meant to reduce or minimize negative impacts to marine mammals and the use of marine mammals for subsistence users.
Our issuance of an incidental take authorization also requires us to make determinations under National Environmental Policy Act (NEPA) and Section 7 of the Endangered Species Act (ESA).

What type of authorization is right for me?

There are 2 types of incidental take authorizations: Incidental Harassment Authorization (IHA) and Letter of Authorization (LOA):

If your action has potential to:	Then you should:
Result in "harassment" only (i.e., injury or disturbance)	Apply for an IHA^ (effective up to 1 year)
Result in harassment only (i.e., injury or disturbance) AND is planned for multiple years	Apply for an LOA*^ (effective up to 5 years)
Result in "serious injury" or mortality	Apply for an LOA*^ (effective up to 5 years)

^ For activities that occur in Arctic waters where the activity has the potential to affect the availability of a species or stock of marine mammals for subsistence uses, your monitoring plan must be peer reviewed.
* For a Letter of Authorization, we must issue regulations. Regulations with an associated LOA may be issued for multi-year activities. These proposed actions must be well-planned with enough detailed information to allow for a robust analysis of the entire duration of your planned activity. Because an IHA can only be valid for 1 year and LOAs can be valid for up to 5 consecutive years, the rulemaking/ LOA process is often used to reduce the administrative burden even when serious injury or mortality is not anticipated.

When should I apply?

For IHAs:

apply 6-9 months in advance of the intended project start date. Some IHAs may take longer to process. Contact us for more project specific recommendations.

For rulemakings/LOAs:

apply at least 1 year, preferably 18 months, in advance of the intended project start date. Some rules and LOAs may take longer to process. Contact us for more project specific recommendations.

How do I apply?

Detailed instructions on submitting an application for an incidental take authorization are available on our website. The collection of this information has been approved by the Office of Management and Budget, OMB Control Number 0648-0151.

Need more help?

Use our Pre-application Guide (PAG). The PAG helps you determine what type of authorization you may need. Answer questions about your proposed activities, then you'll receive a list of required authorizations and how to apply for them, including who to contact.

What happens after I apply?

We will contact you within 5 business days of receipt of your application. The following tables outline the main steps and key time frames of the authorization process.
This timeline is an approximation only, and the time of issuance for a given authorization may vary.

Actions in the IHA Process	Time
Review of application for adequacy and completeness	2-6 weeks*
Initial analysis, review draft NEPA (if available), preliminary determinations, and prepare proposed IHA package	1-3 months
Proposed IHA publishes in Federal Register for public comment period	30 calendar days
Review public comments, ESA/NEPA findings, final determinations, issuance or denial of IHA	1-3 months

Actions in the Rulemaking/LOA Process	Time
Review of application for adequacy and completeness	1-2 months*
Publish Notice of Receipt of Application in the Federal Register for public comment period	30 calendar days
Review public comments, review draft NEPA document, preliminary determinations, and prepare proposed rule	1-6 months
Proposed rule publishes in Federal Register for public comment period	30-60 calendar days
Review public comments, ESA/NEPA findings, final findings, and publish final rule	3-6 months
Issue LOA	30 calendar days after date of publication of final rule in the Federal Register

*If your application is incomplete, it will be returned to you with an explanation. The formal processing of the request does not begin until the application is deemed adequate and complete (with enough information for us to analyze the potential impacts on marine mammals, their habitats, and on the availability of marine mammals for subsistence uses).
For activities that occur in Arctic waters where the activity has the potential to affect the availability of a species or stock of marine mammals for subsistence uses, your monitoring plan must be peer reviewed. We will typically conduct the peer review right before or during the public comment period for the proposed IHA or proposed rule (for LOAs).

How can I review pending actions and see applications?

Select a category below to view pending actions, completed applications, issued authorizations, and other relevant documents.

Public Comment Periods

For IHAs, you have the opportunity to provide comments on the application and our preliminary findings (30 days).
For rulemakings/LOAs, you have the opportunity to provide comments at two stages:

On the application and information that we should consider in preparing a proposed rule (typically 30 days)
On proposed rule, which includes our preliminary findings (typically 30-60 days)

More Information

Updated: January 20, 2015

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