0151SS 092910_revised

SUPPORTING STATEMENT
APPLICATIONS AND REPORTING REQUIREMENTS FOR THE
INCIDENTAL TAKE OF MARINE MAMMALS BY SPECIFIED ACTIVITIES
(OTHER THAN COMMERCIAL FISHING OPERATIONS)
UNDER THE MARINE MAMMAL PROTECTION ACT
OMB CONTROL NO. 0648-0151

A.

JUSTIFICATION

1. Explain the circumstances that make the collection of information necessary.
This request is for renewal of an existing information collection.
The Marine Mammal Protection Act of 1972 (MMPA; 16 U.S.C. 1371 et. seq.) prohibits the
“take” of marine mammals unless otherwise authorized or exempted by law. Among the
provisions that allow for lawful take of marine mammals, sections 101(a)(5)(A) and (D) of the
MMPA direct the Secretary of Commerce to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by United States (U.S.) citizens who
engage in a specified activity (other than commercial fishing), within a specified geographical
region, 1) if certain findings are made and either regulations are issued or 2) if the taking is
limited to harassment, a notice of a proposed authorization is provided to the public for review.
Authorization for incidental takings shall be granted if the Secretary, acting by delegation
through the National Oceanic and Atmospheric Administration’s (NOAA) National Marine
Fisheries Service (NMFS), finds that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and
requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
Issuance of an incidental take authorization (ITA) under section 101(a)(5)(A) or (D) of the
MMPA requires three sets of information collection:
(1) a complete application for an ITA, as set forth in NMFS’ implementing regulations at 50
CFR 216.104, which provides the information necessary for NMFS to make the
necessary statutory determinations;
(2) information relating to required monitoring; and
(3) information related to required reporting.
These collections of information enable NMFS to:
(1) evaluate the proposed activity’s impact on marine mammals;
(2) arrive at the appropriate determinations required by the MMPA and other applicable laws
prior to issuing the authorization; and
(3) monitor impacts of activities for which ITAs have been issued, to determine if predictions
regarding impacts on marine mammals were valid.

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Letters of Authorization (LOA) – MMPA § 101(a)(5)(A)
In 1981, Congress amended the MMPA to provide for ITAs for activities other than commercial
fishing, provided NMFS found the takings would be of small numbers and have no more than a
"negligible impact" on those marine mammal species not listed as depleted under the MMPA,
and not having an "unmitigable adverse impact" on subsistence harvests of these species by
Alaskan Natives. NMFS may prescribe regulations authorizing take for periods of up to five
consecutive years. Implementing regulations require that any such regulations set forth:
•

Permissible methods and the specified geographical region of taking;

•

The means of effecting the least practicable adverse impact on the species or stock and its
habitat and on the availability of the species or stock 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.

50 C.F.R. 216.105. Once NMFS issues the regulations to authorize the taking, those conducting
the activity must obtain an LOA and must abide by the prescribed reporting requirements.
Incidental Harassment Authorization (IHA) – MMPA § 101(a)(5)(D)
In 1994, Congress amended MMPA section 101(a)(5) to establish an expedited process by which
U.S. citizens can apply for an authorization to take incidentally, but not intentionally, small
numbers of marine mammals by harassment. This amendment eliminates the need for applying
for regulations but retains the requirements for applications for the IHA, including monitoring
and reporting interactions with marine mammals. An IHA does not reduce the public paperwork
burdens significantly, but, rather, it expedites NMFS’ review and subsequent approval or denial
of the application. The Amendments also established specific time limits for public notice and
comment on requests for an IHA.
The Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.)
In 1986, Congress amended both the MMPA, under the incidental take program, and the ESA, to
authorize takings of depleted (and endangered or threatened) marine mammals, again, provided
the taking (lethal, injurious, or harassment) was small in number and had a negligible impact on
marine mammals. The Amendments provided for an authorization to incidentally take ESAlisted marine mammals, provided the taking (including mortality) was authorized under section
101(a)(5) of the MMPA. Any takings of marine mammals listed as threatened or endangered
under the ESA must be authorized under both the ESA and MMPA.
An incidental taking of a listed species by a private citizen or State action must be permitted
under section 10(a)(1)(B) of the ESA. The Section 10 permit must be accompanied by a
Conservation Plan, often referred to as a Habitat Conservation Plan (HCP) which describes the
action, evaluates the effect of the take, and establishes the level of take.

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The National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.)
Issuance of an ITA is subject to preparation of an environmental review under NEPA which may
take the form of a Categorical Exclusion, an Environmental Assessment (EA) or an
Environmental Impact Statement (EIS). If an ITA application does not contain sufficient
information on the environmental impact of the proposed activity to determine whether an EA or
EIS is necessary, or if the information is insufficient to complete such analyses, application
processing may be delayed.
2. Explain how, by whom, how frequently, and for what purpose the information will be
used. If the information collected will be disseminated to the public or used to support
information that will be disseminated to the public, then explain how the collection
complies with all applicable Information Quality Guidelines.
Requests for an ITA (IHA or LOA and/or regulations*) are initiated by the applicant on an asneeded basis, and the collection of information is the responsibility of the individual,
organization, state, local, or tribal government, or business petitioning NMFS for an
authorization to allow the incidental, but not intentional, taking of small numbers of marine
mammals.
The Director, Office of Protected Resources will use the information collection as:
(1) a basis for a decision on issuance or denial of an ITA and/or regulations under the
MMPA (application); and
(2) a basis for monitoring and evaluating the impacts of the authorized activity’s impact on
marine mammals (monitoring and reporting);
The MMPA also requires that the U.S. Marine Mammal Commission review all ITA
applications and provide recommendations to the NMFS.
Information Collection – Application and Supporting Documentation
The regulations for an ITA (IHA or LOA) require applicants to include responses to fourteen
questions listed in 50 CFR 216.104(a)(1-14). All applications for marine mammal ITAs must
include this information in sufficient detail necessary for NMFS to conduct appropriate analyses
and make necessary findings under the MMPA and other applicable laws. In addition to the
information collection required under 50 CFR 216.104, applicants often voluntarily provide
environmental analyses, raw data, or geospatial data files to further support their request for an
ITA.
* MMPA gives the option to request regulations and a letter of authorization or to request a more expedited process
for just one incidental harassment authorization.

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NMFS uses the information to:
(1) Review the application and ensure that it is adequate and complete.
(2) Determine the status of the proposed action under the ESA and NEPA.
(3) Determine the size, scope and duration of the proposed activity (Questions 1 and 2).
(4) Determine the environmental setting of the activity (Questions 3 and 4).
(5) Complete an analysis of the effects of the action on marine mammals, their habitat, and
subsistence uses (including methods of take) (Questions 5 -10).
(6) Verify an estimate of the numbers of animals likely to be taken (Questions 5-10).
(7) Ensure that the applicant included adequate mitigation measures (Question 11).
(8) Ensure the applicant included adequate monitoring and reporting measures (Question 13).
Question 14 requests information on what plans the applicant may have to conduct research on
the impacts on marine mammals from the activity. This information is requested to effectuate
legislative intent behind the 1981 Amendments to the MMPA (H. Rept. 97-228, p. 20) that
persons operating under the incidental take authority engage in appropriate research designed
to reduce incidental take. For activities conducted in the Arctic, the MMPA and/or
implementing regulations require that the monitoring plan be independently reviewed.
NMFS reviews the application and analyzes the information collection to make statutory findings
under the MMPA that the taking: will be small; will have a negligible impact on the species or
stock(s) (Questions 1-11); and will not have an unmitigable adverse impact on the availability of
the species or stock(s) for subsistence uses (where relevant) (Questions 8, 11, and 12). The
authorization (if issued) must set forth the permissible methods of taking, other means of
effecting the least practicable adverse impact on the species or stock and its habitat, and
monitoring and reporting of such takings.
NMFS’ review of a complete application is followed by one 30-day public comment period in
the Federal Register for an IHA (Section 101(a)(5)(D)) or by two public comment periods (one
30-day and a second comment period lasting a minimum of 45-days) for an LOA (Section
101(a)(5)(A)).
Information Collection – Monitoring and Reporting
NMFS uses monitoring requirements and interim, annual, and comprehensive reports to
determine:
(1) if the activity took place as described in the request for an ITA;
(2) if the applicant complied with the terms and conditions of the ITA;
(3) if the applicant conducted the monitoring plan as authorized;
(4) if the taking of marine mammals was more than that authorized; and
(5) if the impacts of the activity are consistent with what was anticipated by and authorized
in the ITA.
The reports must include a description of the activity including the time, location, and place; a
summary of the monitoring program; and an assessment of the effects of the activity on marine
mammals including the estimated level of incidental take by species.
Additional reporting requirements (submission of raw data and/or geospatial data files) may be
required on a case-by-case basis for activity-specific regulations and authorizations.
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Compliance with the Information Quality Act Guidelines
NMFS disseminates the information collection to the public to provide a detailed description of
the proposed action and to explain how NMFS arrived at a determination (either preliminary or
final) that an ITA is appropriate under the MMPA.
The information collected is available to the public under the Freedom of Information Act and
on-line at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. NMFS provides the
information in a standard data format (Adobe PDF files) and provides unit style conventions
within the Federal Register notice to facilitate the public’s understanding.
Before disseminating information in any format, data are reviewed internally (pursuant to
Section 515 of Public Law 106-554) to ensure that they are scientifically sound and meet
standards for data quality. The review process for ITAs includes review of the application by the
principal drafter of the ITA to ensure that the applicant has met the requirements under section
101(a)(5) of the MMPA. The principal drafter’s supervisor and NOAA’s Office of General
Counsel review the proposed and final Federal Register notices for the ITA, as well as the actual
ITA. If applicable, a NMFS biologist also conducts an independent review of the action’s effects
on ESA-listed species under Section 7 of the ESA.
All electronic information disseminated by NOAA adheres to the standards set out in Appendix
III, Security of Automated Information Resources, Office of Management and Budget Circular
A-130; the Computer Security Act; and the Government Information Security Reform Act.
NMFS will retain control over the information and safeguard it from improper access,
modification, and destruction, consistent with NOAA standards for confidentiality, privacy, and
electronic information. See response to Question10 of this Supporting Statement for more
information on confidentiality and privacy.
3. Describe whether, and to what extent, the collection of information involves the use of
automated, electronic, mechanical, or other technological techniques or other forms of
information technology.
Applicants may transmit an electronic application or report (e.g. a Microsoft Word (.doc) or
Adobe Acrobat (.pdf) file) via email or deliver paper forms via hand delivery, the U.S. Postal
Service, or by an overnight delivery service. During the processing of the ITA application,
NMFS corresponds with the applicant either by e-mail or by telephone.
All ITA applications and reports are available on the internet as Adobe Acrobat (.pdf) files at
http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications The interested public may also obtain a
copy of an application by writing to the Office of Protected Resources or by telephoning the
contact listed in the Federal Register notice.
The application instructions are available for downloading on the NMFS Office of Protected
Resources website at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Upon request, NMFS can
forward these instructions to the interested party via e-mail in either Adobe Acrobat (.pdf) or
Microsoft Word .doc format.
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4. Describe efforts to identify duplication.
NMFS and the U.S. Fish and Wildlife Service (USFWS), Department of the Interior (DOI), are
responsible for different species under the MMPA. NMFS manages and conserves whales,
dolphins, porpoise, seals and sea lions and the USFWS is responsible for the manatee, dugong,
sea otter, walrus and polar bear populations. The applicant may submit a single application to
both agencies when a marine mammal species under each agency’s jurisdiction may be taken
incidental to the same activity.
The Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE, formerly
known as the Minerals Management Service (MMS)) of the DOI has an overlapping collection
requirement with NMFS and the USFWS for reporting impacts on the marine environment from
offshore oil and gas activities. This is a large information collection which mostly does not
involve NMFS (or the USFWS). There is a small overlap of collecting responsibilities when oil
companies apply for an ITA. When there is an overlap, NMFS, the USFWS, and BOEMRE work
cooperatively to implement a unified mitigation, monitoring and reporting system thereby
eliminating duplicative information collection on the part of the applicant.

5. If the collection of information involves small businesses or other small entities, describe
the methods used to minimize burden.
There should not be a significant burden to small businesses or other small entities. NMFS does
not anticipate significant impacts to small businesses, unless they are involved in an activity that
will otherwise have an unauthorized taking of a marine mammal (i.e., they have not applied for
an ITA and are subject to prosecution).
NMFS anticipates that the affected applicants would include university researchers; oil and gas
exploration companies, other energy companies, and their contractors. While contractors may be
considered small businesses, in many cases they are contracted to supply the information
required under this collection, and thereby obtain a benefit. Otherwise, they are unaffected.
In cases where a small businesses might be affected (such as oil rig removal contractors in the
Gulf of Mexico), NMFS would contact a larger entity (e.g., the American Petroleum Institute or
the MMS) associated with the activity to gather the necessary information. Thus, the small
business would provide NMFS with minimal information (such as company name and
appropriate contact) in order to obtain an ITA under the larger entity conducting the activity.

6. Describe the consequences to the Federal program or policy activities if the collection is
not conducted or is conducted less frequently.
Without the information collection, required by statute and regulations, NMFS would be
(1) unaware of the applicant's need for an exemption to the MMPA's moratorium on taking
marine mammals;
(2) unable to evaluate the proposed activity’s impact on marine mammals;
(3) unable to arrive at the appropriate determinations required by the MMPA and other
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applicable laws prior to issuing the authorization;
(4) unable to meet the “shall allow” or “shall issue” requirements of the MMPA due to the
agency’s inability to make the appropriate determinations without adequate information;
(5) unable to monitor impacts of activities for which take authorizations have been issued to
determine if predictions regarding impacts on marine mammals were valid.
The interim (i.e., 90-day), annual, and/or comprehensive report must summarize activities
conducted during the reporting period. If this information is not submitted, NMFS will not be
able to adequately monitor compliance with the terms and conditions of the ITA. Additionally,
the information gained from the annual reports is used in making management decisions to aid in
assessing impacts of the incidental take on the subject species, and in assisting with analyses
required under section 7 of the ESA and the NEPA.
7. Explain any special circumstances that require the collection to be conducted in a
manner inconsistent with OMB guidelines.
Not Applicable.
8. Provide information on the PRA Federal Register Notice that solicited public comments
on the information collection prior to this submission. Summarize the public comments
received in response to that notice and describe the actions taken by the agency in response
to those comments. Describe the efforts to consult with persons outside the agency to obtain
their views on the availability of data, frequency of collection, the clarity of instructions
and recordkeeping, disclosure, or reporting format (if any), and on the data elements to be
recorded, disclosed, or reported.
A Federal Register notice (75 FR 27295), published on May 14, 2010, solicited public comment.
NMFS received one comment from the Marine Mammal Commission in support of the
information collection. No other comments were received.
NMFS solicits input from industry, the scientific community, and other interested parties, on
views on the availability of data, frequency of collection, clarity of instructions and record
keeping, the amount of burden imposed, and ways to minimize burden. Such information
exchanges occur via phone/email from applicants and during professional society meetings such
as the Biennial Conference on Marine Mammals and other national and international protected
species meetings and workshops.
9. Explain any decisions to provide payments or gifts to respondents, other than
remuneration of contractors or grantees.
NMFS provided no payments or gifts to respondents.
10. Describe any assurance of confidentiality provided to respondents and the basis for
assurance in statute, regulation, or agency policy.
The information collection is a matter of public record, and the statute and regulations do not
require the submission of confidential material.

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NMFS is required to publish a notice of receipt of an ITA application in the Federal Register
requesting comments on the proposed action. The interested public can review the application
and supporting documentation at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications and
submit comments electronically. For each Federal Register notice, NMFS includes a disclaimer
that a commenter should not submit Personal Identifying Information (for example, name,
address, etc.), confidential business information, or otherwise sensitive or protected information
with his/her public comment, as NMFS posts the comments online without change.
The authorization documentation, including reports, is subject to the Freedom of Information Act
(FOIA). However, any personal information that is subject to the Privacy Act is redacted if
contained within documents released under FOIA.
11. Provide additional justification for any questions of a sensitive nature, such as sexual
behavior and attitudes, religious beliefs, and other matters that are commonly considered
private.
The statute and regulations do not require the submission of sensitive material.
12. Provide an estimate in hours of the burden of the collection of information.
NMFS estimates the total annual burden hours at 26,410 hours, as shown in Table 1 and Table 2.
NMFS based these estimates on discussions with nine current ITA holders (oil and gas
companies, a research institution, a non-profit organization, and state/local governments).
The complexity of the information required in applications or reports varies greatly due to the
following: (a) level of controversy over the activity; (b) level and type of incidental take of
marine mammals; and (c) level of unresolved questions involving the activity's long-term impact
on marine mammals, habitat and/or subsistence needs for marine mammals. Response times will
vary for the public based upon the complexity of the requested action.
Table 1. Estimated total annual burden hours.
2010
Estimate
71
26,410

Summary
Estimated Number of Respondents
Estimated Annualized Burden Hours

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Table 2 – Detailed Estimate

Estimated Information
Collection Activity
IHA Application
IHA Interim Draft Report
IHA Draft Annual Report
IHA Final Annual Report
LOA - Initial Application
Preparation for Regulations
LOA - Annual LOA
Application
LOA - Draft Annual Report
LOA - Final Annual Report
LOA - LOA Draft
Comprehensive Report
LOA - LOA Final
Comprehensive Report
Total

Number of
Non-Federal
Responses
(2007 - 2010)

Number of
Responses
Annualized over
a 3-Year Period
(Non-Federal)

Estimated
Length of
Time per
Response

Estimated
Total
Annual
Burden
(hrs)

45
2
45
45

15
1
15
15

399
310
422
163

5,985
310
6,330
2,445

2

1

1,100

1,100

24
24
24

8
8
8

70
220
65

560
1,760
520

24

8

625

5,000

24

8
87

300

2,400
26,410

13. Provide an estimate of the total annual cost burden to the respondents or recordkeepers resulting from the collection (excluding the value of the burden hours in Question
12 above).
NMFS estimates the total annual recordkeeping/reporting cost burden to the respondents at
$3,575, as shown in Table 3. The reporting and recordkeeping estimates include costs for
equipment/software, copying and printing, faxing/telephony, postage and shipping, and reporting
costs.
NMFS based these estimates on discussions with nine current ITA holders (oil and gas
companies, a research institution, a non-profit organization, and state/local governments).
NMFS also estimates the total annual cost burden in capital and start-up costs at $358,000.
However, this figure may include only applicants from the oil and gas industry whereby they
may need to fabricate specific equipment or design custom software* for monitoring before they
submit an application to NMFS.
Total costs per year are estimated to be $361,575.
*Specialized acoustic software is needed to obtain at information needed to complete the application. The costs
were not included in the 2007 submission, because the makeup of the ITA applicant has shifted to the oil and gas
industry and they were not surveyed in 2007.

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Table 3. Estimated total annual cost burden.
Recordkeeping / Reporting Costs
Equipment/ Copying
Faxing
Postage Reporting Capital
Software
Printing Telephony Shipping
Costs
Costs
Refresh
($)
($)
($)
($)
($)
($)
Estimated annual
costs to public
($361,575)

2,250

550

175

100

500

358,000

14. Provide estimates of annualized cost to the Federal government.
The estimated annual cost to the Federal government is estimated at $322,000 for 4 Full Time
Equivalents (FTE) calculated at $35 per hour in Table 4.
Table 4. Estimated annualized cost to the Federal government.

Type of Action
IHA Application
IHA Interim Draft Report
IHA Draft Annual Report
IHA Final Annual Report
LOA - Initial Application
Preparation for Regulations
LOA - Annual LOA Application
LOA - Draft Annual Report
LOA - Final Annual Report
LOA - LOA Draft
Comprehensive Report
LOA - LOA Final
Comprehensive Report

Number of
Responses
Annualized
over a 3-Year
Period
(Non-Federal)
15
1
15
15

Processing
Time
(hrs)
300
80
80
50

2
8
8
8

350
50
80
40

8

80

$ 22,400

8

40
Total

$ 11,200
$ 322,000

Estimated
Cost to the
Federal
Govt
$ 157,500
$ 2,800
$ 42,000
$ 26,250
$
$
$
$

12,250
14,000
22,400
11,200

15. Explain the reasons for any program changes or adjustments.
Adjustments in Burden
NMFS has adjusted the total annual burden hours from the previous estimate of 20,456 to
26,410. The increase in burden hours is not due to a change in the requirements for an
ITA, but instead reflects more realistic estimates of the current workload:
(1) implementation of a more accurate accounting method of burden hours by
surveying nine current ITA holders that represent the current demographic of
applicants.

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(2) an increase in the number of applicants from the oil and gas industry and the
increased complexity of conducting environmental analyses due to the: (a) level
of controversy over the activity; (b) level and type of incidental take of marine
mammals; and (c) level of unresolved questions involving the activity's long-term
impact on marine mammals, habitat and/or subsistence needs for marine
mammals.
(3) an increase in the applicants’ workload to meet the requirements for
environmental analyses under NEPA and the ESA; the requirements per se have
not changed, but there is an increasing understanding of the quality of
documentation needed to fulfill the requirements under the laws.
Although there is a net decrease of only one respondent, there are actually 53 fewer
responses estimated, as we now have a better process in place to account for responses.
Adjustments in Cost
NMFS has adjusted the total annual cost to the respondents from the previous estimate of
$1,359 to $3,575. NMFS now has more applicants from the oil and gas industry seeking
ITAs, as part of a net decrease of one respondent. While the average annualized
expenses per response are approximately $4,000, these respondents’ expenditures are
higher than a smaller organization’s costs, and may be as high as $100,000.
NMFS also estimates the total annual cost burden in capital and start-up costs at
$358,000 from the previous estimate of $0. This revised estimate is based upon polling
representatives from the oil and gas industry and reflects the costs associated with
meeting the requirements for monitoring and environmental analyses.
16. For collections whose results will be published, outline the plans for tabulation and
publication.
There are no immediate plans for the government to publish the data. However, at times the
information contained in annual reports have been extracted, reanalyzed, and published in peerreviewed journals.
17. If seeking approval to not display the expiration date for OMB approval of the
information collection, explain the reasons why display would be inappropriate.
Not Applicable.
18. Explain each exception to the certification statement.
Not Applicable.
B. COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS
The information collection described in this request does not employ statistical methods.

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