Congress enacted the Marine Mammal Protection Act in 1972 (MMPA; 16 U.S.C. 1361 et seq.) to prevent the decline of marine mammal species and populations. The MMPA specifically prohibits the "taking" of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the United States. Implementation of the MMPA is shared between the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NMFS) and the Department of the Interior's U.S. Fish and Wildlife Service (USFWS) with NMFS managing whales, dolphins, porpoise, seals and sea lions and the USFWS responsible for the manatee, dugong, sea otter, walrus and polar bear.
The MMPA does include exemptions for the taking of marine mammals for certain activities and under specified conditions. For activities related to offshore energy and minerals exploration, development and production, this exemption is the form of an Incidental Take Authorization (ITA). The ITA authorizes the unintentional taking of small numbers of marine mammals, provided the activity would have a negligible impact to marine mammals and would have no unmitigable adverse impact on subsistence use of marine mammals. The ITA may be issued as a Letter of Authorization (promulgation of 5-year regulations requiring annual site-specific authorizations) or an Incidental Harassment Authorization (1-year, site-specific authorization for activities with no potential for serious injury or mortality). Both forms require a public review and comment period. An ITA also requires monitoring and reporting of a take to verify a negligible impact.
In the absence of an ITA, offshore operators and lessees are legally liable for any takes which may occur, and civil and criminal penalties exist for violations of the MMPA.
BOEM encourages offshore operators and lessees to apply for an ITA for activities with a potential for taking marine mammals. Further, BOEM coordinates with NMFS and USFWS to ensure compliance with the MMPA and to also develop effective mitigation and monitoring requirements for ITA's as well as BOEM authorizations.