Taking and Importing Marine Mammals; Taking of Marine Mammals Incidental to Power Plant Operations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 970703165-9117-03; I.D. 062397A]

RIN 0648-AK00

Taking and Importing Marine Mammals; Taking of Marine Mammals

Incidental to Power Plant Operations

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS, upon application from North Atlantic Energy Service

Corporation (North Atlantic), issues regulations to govern the

unintentional take of small numbers of seals incidental to routine

operations of the Seabrook Station nuclear power plant, Seabrook, NH

(Seabrook Station). Issuance of regulations governing unintentional

incidental takes in connection with particular activities is required

by the Marine Mammal Protection Act (MMPA) when the Secretary of

Commerce (Secretary), after notice and opportunity for comment, finds,

as here, that such takes will have a negligible impact on the species

and stocks of marine mammals and will not have an unmitigable adverse

impact on the availability of them for subsistence uses. This

rulemaking does not authorize this activity; such authorization is

under the jurisdiction of the Nuclear Regulatory Commission and is not

within the jurisdiction of the Secretary. Rather, these regulations

authorize the unintentional incidental take of marine mammals in

connection with such activities and prescribe methods of taking and

other means of affecting the least practicable adverse impact on the

species, and its habitat, and on the availability of the species for

subsistence uses.

DATES: Effective from July 1, 1999, through June 30, 2004.

ADDRESSES: A copy of the application, Environmental Assessment (EA) and

other available documents may be obtained by writing to Donna Wieting,

Acting Chief, Marine Mammal Division, Office of Protected Resources,

NMFS, 1315 East-West Highway, Silver Spring MD 20910-3226, or by

telephoning the contacts listed below (see FOR FURTHER INFORMATION

CONTACT: NOAA Desk Officer, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, (301)

713-2055, or Scott Sandorf, Northeast Regional Office, NMFS, (978) 281-

9388.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.) directs

NMFS to allow, upon request, the incidental, but not intentional,

taking of marine mammals by U.S. citizens who engage in a specified

activity (other than commercial fishing) within a specified

geographical region if certain findings are made and regulations

issued.

Permission may be granted for periods of 5 years or less if NMFS

finds that the taking will have a negligible impact on the species or

stock(s) of marine mammals, will not have an unmitigable adverse impact

on the availability of these species for subsistence uses, and if

regulations are prescribed setting forth the permissible method of

taking and the requirements pertaining to the monitoring and reporting

of such taking.

Summary of Request

On June 16, 1997, NMFS received an application for an incidental,

small take exemption under section 101(a)(5)(A) of the MMPA from North

Atlantic to take marine mammals incidental to routine operations of the

Seabrook Station. Seabrook Station is a single unit, 1,150 megawatt

nuclear power generating facility located in Seabrook, NH. Cooling

water for plant operations is supplied by three intake structures

approximately 1 mile (1.6 km) offshore in about 60 feet (18.3 m) of

water. During normal power operations, about 469,000 gallons per minute

are drawn through the intakes to a 19-foot (5.8 m) diameter, 3-mile

long (4.8 km) tunnel beneath the seafloor and into large holding bays

(called forebays) at the power plant. Lethal takes of harbor seals

(Phoca vitulina), gray seals (Halichoerus grypus), harp seals (Phoca

groenlandica), and hooded seals (Cystophora cristata) are known to have

occurred and are expected to continue to occur as the animals enter the

cooling water intake structures and apparently drown enroute to the

forebays.

Each of the three seawater intake structures consists of a velocity

cap that is connected to the subterranean intake tunnel by vertical

risers. The velocity intake caps are 30 feet (9.1 m) in diameter and

rest, mushroom-like, on top of 9-foot (2.7 m) diameter risers that

vertically descend 110 feet (33.5 m) to connect with the horizontal

intake tunnel. The bottom of the horizontal intake cap opening is 10

feet (3.05 m) above the ocean bottom, and the intake openings are

covered by vertical bars that are spaced 16 in. (40.6 cm) apart. The

intent of the vertical bars is to reduce the amount of large debris

that can enter the intake. The purpose of the

[[Page 28115]]

cooling water intake design is to minimize the rate of water flow at

the entrance to the intakes and thereby minimize the entrainment of

marine organisms. The rate of water flow at the edge of the velocity

intake caps during normal, continuous power operations is about 0.5

feet per second (0.15 m/sec; 0.3 knots).

Because the structures are offshore and submerged, seals have not

been observed entering the intakes, but they are discovered in the

forebays of the station. It is not believed that the horizontal flow

rate at the entrance to the intakes is strong enough to sweep seals

into the intakes. The animals may swim into the structures in pursuit

of prey or by curiosity. Once inside the velocity cap, the rate of

water flow increases in the risers and intake tunnel. The accelerating,

downward turning flow and the low-light conditions may disorient the

seals and may inhibit their escape from the intakes. For an object

traveling passively with the water flow, the minimum transit time from

the offshore intake velocity cap to the forebay is approximately 80

minutes. A seal that enters the intakes and is unable to find its way

out would not be able to survive the transit through the intake tunnel

to the plant.

Though Seabrook Station has been in commercial operation since

August 1990, no seal takes were known to have occurred prior to 1993

when the remains of two seals were discovered. In 1994, the remains of

seven seals were found and, in 1995, the remains of six to seven were

found. In 1996, 12 to 17 animals were taken and, in 1997, 10 seals were

taken at the facility. Lethal takes for 1998 totaled 13 seals. Given

that the local abundance of harbor seals is known to be increasing and

that plant operations are scheduled to continue, as yet unmodified,

takes are likely to continue to occur in the coming years. The expected

number of takes cannot be estimated at this point, but an examination

of past years' takes may illustrate a trend for upcoming years.

Description of the Habitat and Marine Mammals Affected by the

Activity

A description of the U.S. Atlantic coast environment, including

marine mammal abundance, distribution, and habitat can be found in the

EA on this rule. Additional information on Atlantic coast marine

mammals can be found in Waring et al. (1998). These documents are

available upon request (see ADDRESSES).

Summary of Potential Impacts

From the initial report of a take in 1993 through 1998, the remains

of 50 to 56 seals have been discovered in Seabrook Station's forebays

or on the devices used to clean the forebays' condenser intake screens.

Human access to the forebays is restricted and visibility is poor.

Consequently, intact animals occasionally go undetected in the forebay,

and pieces of hide and bones are recovered in the screen washings as

the animals decompose, causing uncertainty in the total number of

animals taken to date. The remains are turned over to authorized

members of the Northeast Marine Mammal Stranding Network for analysis

and disposal. Through 1998, the remains of four gray seals, and skull

fragments of two harp seals and of one hooded seal have been

identified. Thirty-seven of the seals have been positively identified

as harbor seals. For the harbor seals whose ages could be determined,

the majority have been young-of-the-year. Where possible, examination

has shown that 11 of the seals were males and 16 were females. To

summarize, 44 of the seals taken have been identified to species and 27

have been identified to sex.

The regulations limit the annual incidental take for the operation

of Seabrook Station to 20 harbor seals and four of any combination of

gray, harp and hooded seals. Harbor seals have constituted the majority

of animals taken; consequently, that species has been allocated a

separate annual authorization. These limits are considered very

conservative because they are well within the Potential Biological

Removal (PBR) level for those species whose PBR levels have been

calculated. The PBR level for the western North Atlantic harbor seals

is 1,859 and the minimum population estimate is 30,990. The gray seal's

regional population is not as large as that of the harbor seal. The PBR

level is 122 and has a minimum population estimate of 2,010 in U.S.

waters. Harp and hooded seals do not have a calculated PBR level

because the minimum population in U.S. waters is unknown. While there

is no PBR level calculated for the harp or hooded seals, the minimum

population estimates for these species are 4.8 million and 400,000,

respectively.

Mitigation

North Atlantic is presently investigating a number of measures to

prevent or reduce the lethal taking of seals at Seabrook Station. To

date, no preventative measures have been implemented, but some

alternatives seem to warrant further study. Designs of a physical

barrier system and an acoustical deterrence array are still being

evaluated. These alternatives are being reviewed for practicability

with regard to nuclear power safety, costs, and ability to withstand

the high energy offshore environment.

It should be recognized that, due to inherent difficulties in

designing, constructing, and maintaining a structure or device in the

offshore high energy environment of the intakes, only a reliable and

durable mitigation system is feasible. Any chosen mitigation measure

must also be economically and technologically feasible as a means to

effect ``the least practicable adverse impact'' on the described

pinniped species. To ensure that any mitigation method that may be

employed is feasible, NMFS is allowing North Atlantic to use this

authorization period to fully explore any feasible mitigation methods.

If a method or combination of methods is found to be feasible, it must

also be tested, constructed, deployed, and be operational during the

defined schedule that occurs within the 5-year authorization.

If, after North Atlantic conducts the appropriate feasibility

studies, it is determined that no mitigation measure is proven to be

feasible due to technological, economic, or safety reasons, then at the

next renewal of the authorization, NMFS and North Atlantic must further

explore and undertake steps to promote the conservation of the

population of Gulf of Maine seals as a whole. These measures may take

the form of studies that examine population trends, migration patterns,

or enhancement of the survival of young-of-the-year seals.

Monitoring

This final rule requires North Atlantic personnel to continue their

efforts to monitor the station for the presence of entrapped seals.

Timely awareness of a take allows for a more comprehensive evaluation

on the level of takes and on the characteristics of each seal. Seals

that go undetected in the intake circulating system may decompose and

be missed during examination of screen wash debris.

Monitoring under the final rule must include: (1) twice daily

visual inspection of the circulating water and service water forebays,

(2) daily inspections of the intake transition structure from April 1

through December 1, unless weather conditions prevent safe access to

the structure, (3) screen washings once per day during the peak months

of seal takes and twice a week during non-peak months of seal takes,

and (4) examination of the screen wash debris to determine if any seal

remains are present.

[[Page 28116]]

Reporting Requirements

Seal takes must be reported to NMFS through both oral and written

notification. NMFS must be notified via telephone by the close of

business on the next day following the discovery of any marine mammal

or marine mammal parts. Written notification to NMFS must be made

within 30 days. The written notification must also contain the results

of any examinations conducted by qualified members of the Marine Mammal

Stranding Network as well as any other information relating to the

take.

Comments and Responses

On August 25, 1998, NMFS published a proposed rule for this action

in the Federal Register (63 FR 45213). During the 45-day comment

period, NMFS received comments from a number of organizations. The

comments received are addressed here.

Compliance with the MMPA

Comment 1: In Seabrook's application, it states that no takes of

gray seals have occurred. Takes of this species have occurred at the

station, and this fact should be corrected in an amendment to the

application.

Response: At the time that the application was submitted by North

Atlantic, no takes of gray seals had yet been reported. However, the

application did request an exemption for takes of gray seals due to the

potential for takes, and the proposed rule also described an

authorization for this species. Therefore, no amendment is necessary.

Comment 2: Mitigation measures should be attempted prior to any

exemption being issued.

Response: Incidental taking of seals due to this activity requires

an authorization under the MMPA. An authorization under the MMPA is

required by the applicant to continue taking these seals incidental to

its activity. If the issuance of an authorization is delayed, the

applicant could continue to be in violation of the take prohibitions of

the MMPA. As part of this rulemaking, North Atlantic will have to

investigate mitigation alternatives. Morever, the MMPA does not require

as a condition of granting incidental take authorizations, that

mitigation measures be in place before the granting of the

authorization.

Comment 3: Plant officials should be held accountable for the

deaths of all seals that are taken prior to any authorization being

issued.

Response: The taking of marine mammals is prohibited under the MMPA

unless exempted by the MMPA or authorized by permit. While seal takes

at Seabrook Station in the past constitute a violation of the MMPA,

NOAA has discretion on whether to enforce the provisions of the MMPA.

Because North Atlantic has fully cooperated with NMFS by preparing an

application for a small take exemption and has promptly notified NMFS

of each take, NOAA has determined that no benefit would be gained by

issuing notices of violation at this time.

Comment 4: The proposed rule is against the spirit of the MMPA

because it justifies the killing of four species of seals by assuming

that the hardiest seal species is doing fine and that harbor seals best

lend themselves to evaluating future trends in the regional seal

population. The proposed rule does not reflect this conclusion nor

reflect the fact that marine mammal populations fluctuate and can not

be predicted with certainty.

Response: Section 101(a)(5)(A) of the MMPA directs NMFS to allow,

upon request, the incidental taking, including lethal taking, of marine

mammals by U.S. citizens who engage in an otherwise lawful activity

(other than commercial fishing) within a specified geographical region

if certain findings are met and regulations issued. One of these

findings is that the taking must have no more than a negligible impact

upon the species in question. While marine mammal populations may

fluctuate, harbor seal surveys have been conducted in this region since

1981. Since that date, the estimated average population increase was

4.2 percent for harbor seals. In addition, the Western North Atlantic

populations of gray, harp, and hooded seals appear to be increasing

(Waring et al., 1998). While the exact numbers of a particular marine

mammal population may be difficult to identify, NMFS is able to

determine relative trends for these particular species in U.S. waters.

However, based upon comments received, the final rule has been revised

and will have an authorized annual take limit of twenty harbor seals

and four of any combination of gray, harp, and hooded seals.

Comment 5: If optimum sustainable population (OSP) has not been

determined for some of the species, no authorization can be issued

under the MMPA. Since there is no PBR level established for harp and

hooded seals, the OSP cannot be determined. Therefore, the negligible

impact can not be determined. As in Kokechik Fisherman's Association v.

Secretary of Commerce, the proposed rule violates the MMPA.

Response: NMFS had determined that the Kokechik case does not bar

issuance of a section 101(a)(5)(A) authorization in this case. Takings

under section 101(a)(5)(A) of the MMPA, which authorizes the taking of

small numbers of marine mammals by activities other than commercial

fishing, are allowed if certain conditions are satisfied and the taking

is having no more than a negligible inpact. Since these activities are

having no more than a negligible impact on species and stocks, they are

clearly exempt from the requirements of sections 103 and 104 with

respect to making OSP determinations for each affected stock prior to

any take authorization (section 101(a)(5)(C)(ii)).

As described in detail in the joint NMFS/U.S. Fish and Wildlife

Service 1989 final rulemaking implementing the 1988 MMPA Amendments to

the small take authorization section (see 54 FR 40338, September 29,

1989), a formal OSP determination is not required to make a negligible

impact determination. Instead, as in this case, NMFS can make

judgements on a case by case basis on how the anticipated incidental

taking will affect the status and population trends of the species or

stocks concerned.

Comment 6: In addressing the level of impacts, the MMPA and Clean

Water Act (CWA), section 316(b), are in conflict. The standards under

the MMPA are in conflict with the CWA when examining the technology

available and the requirements for utilizing what is considered

appropriate technology under both the MMPA and the CWA. Accordingly, in

reconciling these two statutory schemes, the emphasis should be on the

greatest level of protection possible. The Environmental Protection

Agency (EPA) and NMFS should also engage in active consultation and

coordination on this matter to ensure that NMFS and EPA exercise their

respective authorities in a coordinated fashion.

Response: NMFS has been discussing, and will continue to discuss,

this action with the EPA with respect to the MMPA and EPA's authority

under the CWA. Nothing in this MMPA rulemaking prohibits the EPA from

taking any other independent action under its authorities under the

CWA. This regulation applies only to NMFS and its authority to issue

regulations under the MMPA.

Comment 7: Why was 5 years chosen as the maximum duration of the

authorization when a duration of lesser time could have been selected?

Response: Since Seabrook will likely remain in operation until at

least 2026, North Atlantic could conceivably require a number of

authorizations

[[Page 28117]]

under the MMPA. By choosing 5 years as the duration of the

authorization, NMFS is attempting to take a farsighted approach to any

regulatory requirements. Also, during this initial authorization

period, North Atlantic will be undertaking a number of steps to attempt

to mitigate the seal takes, and this process may require the majority

of this initial authorization period. However, the Letter of

Authorization (LOA) must be renewed annually and if North Atlantic is

not complying with the conditions of the LOA, or, if other information

becomes available about the level of impact of the taking of seals,

then NMFS may revoke the authorization.

Marine Mammal Concerns

Comment 8: From the information presented by NMFS, it appears that

the taking that would be authorized over the 5-year period would have a

negligible impact on the affected populations.

Response: NMFS concurs with this assessment.

Comment 9: Species accounts in the draft EA and the application

should be corrected to match the most recent stock assessments.

Response: The final EA will contain the information from the most

recent NMFS marine mammal stock assessments. However, the application

does not need to be corrected because it used the stock assessment

information that was most current at the time of its submission.

Comment 10: The draft EA has no discussion of other sources of

mortality to these marine mammal species such as mortality related to

fishery interactions.

Response: The final EA contains information on other sources of

mortality, such as mortality from commercial fishery interactions.

Comment 11: Any takes of harp seals when combined with the total

allowable catch in Canada and the directed fishery in Greenland

approaches or exceeds what would be the PBR level when calculated using

the United States PBR level formula.

Response: For a take of a species to be authorized under this

process, the incidental take of that species must have no more than a

negligible impact on the species or stock of marine mammal. NMFS has

defined ``negligible impact'' in 50 CFR 216.103 as ``an impact

resulting from the specified activity that cannot be reasonably

expected to, and is not reasonably likely to, adversely affect the

species or stock through effects on annual rates of recruitment or

survival.'' To date, there have been two reported takes of harp seals

at Seabrook Station (one in 1995 and one in 1997). NMFS stated in its

1998 Stock Assessment Report that harp seals are primarily a Canadian

stock with an estimated minimum population of 4.8 million. This final

rule establishes a maximum take of four harp seal per year if no takes

of gray or hooded seals occur. Therefore, incidental takes of harp

seals by North Atlantic have, and will continue to have, no more than a

negligible impact.

Comment 12: Given that no PBR level exists for harp and hooded

seals, should North Atlantic be required to initiate a population study

of these species in order to determine whether its operation will

really have a negligible impact?

Response: Although there are no established PBR levels for harp and

hooded seals, there is sufficient information for these species that

allows for an estimate of their population sizes and trends in

abundance. Both stocks indicate an increasing population size in U.S.

waters. Considering these increasing U.S. and Western North Atlantic

stock sizes, and given that the location of the major portion of harp

and hooded seal populations is in Canadian waters, population studies

of these species is unnecessary. For this rulemaking, NMFS considered

the best scientific information available relative to pinniped

populations, in addition, there is no actual requirement in the MMPA

for the applicant to fund or conduct additional research.

Comment 13: A proposed annual authorization of 34 seals seems

unnecessarily high, given the annual takes in previous years.

Response: A conservative number was proposed as the limit for

authorized annual takes to ensure, in part, that North Atlantic would

have the ability to pursue mitigation options without the risk of

reaching their annual authorization limit and thereby invalidating

their authorization under the MMPA for the remainder of the year.

However, due to the more stable incidental take levels that occurred in

1997 (10 seals) and 1998 (13 seals) and based upon comments received,

the final rule lowers the annual take authorization to 20 harbor seals

and 4 of any combination of gray, harp, and hooded seals. Lowering the

annual authorization to 24 seals from the previous limit of

approximately 34 animals more closely parallels the current observed

trends in takes.

Comment 14: Could the rule employ a graduated take limit that

increases over the length of the authorization to account for range

expansion and population increases?

Response: While the comment has merit, an increasing quota is

unnecessary (see response to comment 13). The maximum length of time

for the small take authorization under the MMPA to North Atlantic is 5

years. At the time of any future rulemaking for reauthorization of an

exemption under the MMPA, revised conservative take limits may be set

that would reflect recent knowledge of the respective pinniped

populations and the takes documented during the authorization. Any

revised take limit would also reflect the utilization of any mitigation

measures that are in effect at the intake cooling water structures.

Comment 15: Is the annual authorized take allowed to increase with

increasing PBR level?

Response: As mentioned previously, based upon comments received,

the final rule uses a different method of establishing the total annual

authorized takes than that originally proposed. For each year of this

authorization, a maximum of 20 harbor seals may be taken as well as a

maximum of 4 of any combination of gray, harp, and hooded seals per

year. Those levels are not proposed to increase during this 5-year

authorization. Depending upon the success of implemented mitigation,

future authorizations may propose increased or decreased levels of take

whether or not individual PBRs increase.

Comment 16: The draft EA erroneously states that the New Hampshire

coastal area is not in the primary range of the gray seal.

Response: The New Hampshire coastal region is not a known breeding

or pupping area for the gray seal. While colonies do exist in the

Nantucket area, the New Hampshire coastal area is at the edge of the

range for the species and is not considered a concentration area for

gray seals.

Mitigation Concerns

Comment 17: Further testing and design of barriers should be

undertaken, and this should be a condition of any temporarily granted

small take authorization.

Response: If a mitigation measure such as barriers is determined,

by NMFS, to be feasible with respect to such factors as nuclear power

safety, available technology, economics, and the ability of the measure

to withstand the high energy offshore environment, a pilot program must

be implemented to test any alternative that is chosen as a mitigation

design. Any testing of a mitigation alternative will take place after

an authorization is initially issued.

Comment 18: The use of Acoustic Harassment Devices (AHDs) is

opposed as a deterrence option at Seabrook Station. They displace

cetaceans as

[[Page 28118]]

demonstrated in the Olesiuk et al. (1995) paper relating to harbor

porpoise in British Colombia. Harbor porpoise were displaced up to 3.5

kilometers from the source of the AHDs.

Response: The evidence being presented that AHDs displace

cetaceans, specifically harbor porpoise, is based only on the single

cited study which was conducted in a very different physical

environment from that which occurs at Seabrook Station. Around

aquaculture facilities in Maine, harbor porpoise have been observed

among pens with active AHDs. Therefore, it is unknown whether or not

AHDs would displace harbor porpoise in this case. In determining

whether AHDs are practicable mitigation measures NMFS will consider all

of the pros and cons of such devices and their impact on pinnipeds and

other marine mammals.

Comment 19: The use of AHDs as a deterrent option would likely

constitute a form of intentional taking not allowed under Section

101(a)(5)(A) of the MMPA.

Response: Section 101(a)(5)(A) requires NMFS to implement

``regulations setting forth * * * permissible methods of taking

pursuant to such activity, and other means of effecting the least

practicable adverse impact on such species or stock and its habitat * *

*.'' Therefore, when mitigation measures have been identified to lower

the potential for marine mammals to be seriously injured or killed,

those measures, including intentional harassment measures would need to

be authorized under the appropriate provision of the MMPA.

Comment 20: Why is NMFS allowing a delay in implementing possible

mitigation measures after it has received the required report of

possible mitigation measures?

Response: The delay is necessary to allow the applicant the time

necessary to conduct a pilot study at the site of the intakes as well

as to possibly install a more permanent mitigation measure following

that study. The applicant could implement measures in a shorter period

of time than was determined to be feasible.

Comment 21: Commenters were concerned over the time period for

implementation of a chosen mitigation alternative once a method was

determined feasible. Comments suggested that flexibility be given to

North Atlantic to take advantage of outages (periods when the intakes

are shut down) when, implementing alternatives, both before and after

the 42-month period.

Response: NMFS has determined that the 42 months is a practicable

and reasonable requirement for have North Atlantic to implement its

mitigation measures. If an outage is required to complete any necessary

installation, then North Atlantic will have to utilize an outage period

prior to the 42-month period. Moreover, North Atlantic is free to use

any outage before the end of the 42-month period to implement

mitigation measures.

Monitoring Concerns

Comment 22: The increased visual inspections of the forebays are

identifying seals in the forebay before they significantly decompose.

Response: NMFS agrees that the increased visual inspections are

identifying seals more frequently than in the past. However, seal

remains are still being recovered in the screen wash assessments, so

the visual inspections are not completely effective in discovering

seals.

Comment 23: North Atlantic has been using high powered searchlights

to inspect the forebays for the past year which has made the visibility

adequate to identify seal carcasses during the twice-daily visual

inspections.

Response: The use of searchlights may contribute to an increase in

the ability of inspectors to observe any animals in the forebay.

However, occasionally water conditions prevent observation of seals

beneath the surface of the water, regardless of the tools currently

being used by inspectors.

Comment 24: In the unlikely event that a seal is not observed

visually and decomposes, any seal fragments will be noticed during the

screen wash assessment.

Response: While seal remains are observed during screen wash

assessments that were not previously visually observed, there is no

conclusive proof that current methods of inspection are able to observe

all seals taken. However, the majority of seals are likely discovered

under current practices.

Comment 25: In months in which seal mortality has been the

greatest, screen cleanings (in the forebays) should occur twice a day

rather than twice a week.

Response: NMFS agrees in part. At present, North Atlantic conducts

twice-a-week screen washings, as well as visual inspections of both

forebays at least twice per day. However, given that seals are being

occassionally missed by visual inspections of the forebays, requiring

one screen washing per day during the peak months of seal takes is

considered by NMFS to be adequate to better monitor and record seal

takes. During non-peak months of seal takes, screen washings will be

required twice a week.

Comment 26: The requirement for the frequency of inspection of the

intake transition structure should be changed to two inspections per

week between June 1 and October 31 of each year as opposed to the

proposed rule requirement for year-round daily inspections.

Response: To make the monitoring more effective, the requirement

for the inspection of the intake transition structure is changed from

the proposed rule to daily inspections from April 1 through December 1

of each year unless weather conditions prevent safe access to the

structure.

Comment 27: The personnel inspecting the intake circulating water

system and screen wash debris should be determined to be qualified,

based on their having a sufficient knowledge of pinniped

identification, rather than by a determination of the NMFS Regional

Administrator to approve inspecting personnel.

Response: The final rule reflects this comment by allowing North

Atlantic to designate inspection personnel based on a determination

that they have the ability to accurately identify pinniped and marine

mammal individuals and marine mammal parts that occur as a result of

the inspections and assessments.

Comment 28: Is the nearfield monitoring (as described in Seabrook's

application) sufficient to document migration, habitat use, and

foraging behavior of the species? Would this monitoring be required

only if it is determined that no mitigation measure is feasible?

Response: Monitoring sufficient to documenting habitat and foraging

behavior is not necessary for this authorization. However, as was

stated in the proposed rule, if no mitigation is found to be feasible,

then studies that explore components of pinniped ecology in the region

may be required. Therefore, at the present time, the studies that North

Atlantic currently undertakes for nearfield monitoring of seals are

considered sufficient.

Reporting Concerns

Comment 29: In the report that North Atlantic will have to submit

describing potential mitigation measures, North Atlantic should also be

required to fully describe those measures that it had previously

considered, but determined would not be feasible.

Response: NMFS concurs and the final rule includes this change.

Comment 30: Oral reports made upon the discovery of a seal or seal

parts should be allowed to be made by the close of business on the next

day

[[Page 28119]]

following the finding of any seals or seal parts or other marine mammal

parts.

Response: NMFS concurs and has modified the rule accordingly.

Comment 31: A request was made to change the requirement for the

submission of any necropsy reports to NMFS from 15 business days to 30

days to better accommodate the staff from the New England Aquarium who

perform the examinations.

Response: NMFS concurs and has modified the rule accordingly.

Changes From the Proposed Rule

NMFS has modified the final rule as follows:

1. The annual authorized take in Sec. 216.130(b) is limited to a

maximum of 20 harbor seals and four of any combination of gray, harp,

and hooded seals. These numbers more closely parallel observed takes in

recent years but still provide the applicant a conservative limit with

which to pursue a mitigation alternative.

2. The effective dates of the rule stated in Sec. 216.131 is

effective from July 1, 1999, through June 30, 2004.

3. The report required by Sec. 216.134 to be submitted within 6

months from the issuance of the final rule must include a full

description of any mitigation measures that were previously considered,

but determined not to be feasible. This will allow NMFS to conduct a

more thorough review of any mitigation alternatives prior to any

implementation of a measure at the intakes.

4. The date Sec. 216.134 requires for any chosen mitigation measure

to be implemented by is no later than 42 months after the date of

issuance of the final rule. The elimination of the option to have any

chosen mitigation alternative implemented by 42 months or at the

closest scheduled plant outage before or after that date will allow the

applicant sufficient time to study and implement a mitigation

alternative yet establishes a definitive deadline for work to be

completed.

5. Section 216.135(b) requires that personnel performing

inspections have sufficient knowledge of pinniped identification to

discover seal or seal parts during the required inspections and

assessments. This removes the burden of the NMFS Regional Administrator

to review each individual who is assigned inspection duties by North

Atlantic.

6. Section 216.135(d) requires that the intake transition structure

be inspected daily from April 1 through December 1 unless weather

conditions prevent safe access to the structure. NMFS believes that

given the weather conditions at the intake transition structure and the

periodic nature of the majority of seal takes, there would be no added

benefit gained from year-round daily inspections.

7. Section 216.135(e) requires one screen washing per day during

the peak months of seal takes as specified in the LOA. During non-peak

months of seal takes, screen washings are required twice a week.

Increasing the frequency of screen washings during the peak months of

seal takes may allow for a greater opportunity to observe any seals

that have been transported to the forebays that were not otherwise

observed visually during the regular forebay inspections.

8. Section 216.135(f) requires oral notification to NMFS to occur

within one business day following the discovery of any seal or seal

parts, or other marine mammal or marine mammal parts. This change

provides prompt notification to NMFS of any seal takes but accounts for

the work schedule of NMFS personnel who receive the reports.

9. Section 216.135(h) requires that NMFS receives written

notification of the discovery of any seal or seal parts, or other

marine mammal or marine mammal part, within 30 days from the time. This

change will allow the staff at the New England Aquarium more time to

conduct the required necropsies and examinations of any seal carcasses

recovered.

Conclusions

Based upon the information contained in North Atlantic's

application, in the EA prepared for this action, and in this document,

NMFS has determined that the taking of up to 20 harbor seals and four

of any combination of gray, harp, and hooded seals, annually during the

next five years, would have no more than a negligible impact (as

defined in Sec. 216.3) on these stocks of marine mammals. The best

scientific information available indicates that the harbor seal stocks

are increasing at about 4.2 percent annually. In addition, the Western

North Atlantic populations of gray, harp, and hooded seal stocks also

appear to be increasing in abundance (Waring et al., 1998). The small

number of takes by Seabrook is unlikely to reduce the rate of

reproduction of these animals.

National Environmental Policy Act

In conjunction with the notice of proposed authorization, NMFS

released a draft EA that addressed the impacts on the human environment

from issuance of the authorization and the alternatives to the proposed

action. Comments received on the draft EA during the comment period

have been addressed in this document. As a result of the findings made

in the revised EA, NMFS has concluded that implementation of either the

preferred alternative or other identified alternatives would not have a

significant impact on the human environment. As a result of that

finding, an Environmental Impact Statement will not be prepared. A copy

of the EA is available upon request (see ADDRESSES).

Classification

This action has been determined to be not significant for purposes

of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Chief Counsel for Advocacy of

the Small Business Administration when this rule was proposed, that, if

adopted, it would not have a significant economic impact on a

substantial number of small entities in the meaning of the Regulatory

Flexibility Act. No comments were received on the certification and the

basis for it has not changed. Accordingly, a regulatory flexibility

analysis was not prepared.

Notwithstanding any other provision of law, no person is required

to respond to nor shall a person be subject to a penalty for failure to

comply with a collection of information subject to the requirements of

the Paperwork Reduction Act (PRA) unless that collection of information

displays a currently valid OMB control number.

This rule contains collection-of-information requirements subject

to the provisions of the PRA and which has been approved by the OMB

under control number 0648-0151. This is the requirement for an annual

report. Requirements for reporting on seals and seal parts found, and

on mitigation measures taken are not subject to the PRA since they

apply only to a single respondent and are not in a rule of general

applicability.

The reporting burden for this collection is estimated to be

approximately 80 hours, including the time for gathering and

maintaining the data needed and for completing and reviewing the

collection of information. Send comments regarding these reporting

burden estimates or any other aspect of the collections of information,

including suggestions for reducing the burdens, to NMFS and OMB (see

ADDRESSES).

List of Subjects in 50 CFR Part 216

Exports, Fish, Imports, Indians, Labeling, Marine mammals,

Penalties,

[[Page 28120]]

Reporting and recording requirements, Seafood, Transportation.

Dated: May 18, 1999.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For reasons set forth in the preamble, 50 CFR part 216 is amended

as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE

MAMMALS

1. The authority citation for part 216 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

2. In Sec. 216.3 a new definition for ``Administrator, Northeast

Region'' is added in alphabetical order to read as follows:

Sec. 216.3 Definitions.

* * * * *

Administrator, Northeast Region means Administrator, Northeast

Region, National Marine Fisheries Service, One Blackburn Drive,

Gloucester, MA 01930-2298

* * * * *

3. Subpart L is added to read as follows:

Subpart L--Taking of Marine Mammals Incidental to Power Plant

Operations

Sec.

216.130 Specified activity, specified geographical region, and

incidental take levels.

216.131 Effective dates.

216.132 Permissible methods of taking.

216.133 Prohibitions.

216.134 Mitigation requirements.

216.135 Monitoring and reporting.

216.136 Renewal of the Letter of Authorization.

216.137 Modifications to the Letter of Authorization.

216.138--216.140 [Reserved]

Subpart L--Taking of Marine Mammals Incidental to Power Plant

Operations

Sec. 216.130 Specified activity, specified geographical region, and

incidental take levels.

(a) Regulations in this subpart apply only to the incidental taking

of harbor seals (Phoca vitulina), gray seals (Halichoerus grypus), harp

seals (Phoca groenlandica), and hooded seals (Cystophora cristata) by

U.S. citizens engaged in power plant operations at the Seabrook Station

nuclear power plant, Seabrook, NH.

(b) The incidental take of harbor, gray, harp, and hooded seals

under the activity identified in this section is limited to 20 harbor

seals and 4 of any combination of gray, harp, and hooded seals for each

year of the authorization.

Sec. 216.131 Effective dates.

Regulations in this subpart are effective from July 1, 1999 through

June 30, 2004.

Sec. 216.132 Permissible methods of taking.

Under a Letter of Authorization issued to North Atlantic Energy

Services Corporation for Seabrook Station, the North Atlantic Energy

Services Corporation may incidentally, but not intentionally, take

marine mammals specified in Sec. 216.130 in the course of operating the

station's intake cooling water system.

Sec. 216.133 Prohibitions.

Notwithstanding takings authorized by Sec. 216.130(a) and by the

Letter of Authorization, issued under Sec. 216.106, the following

activities are prohibited:

(a) The taking of harbor seals, gray seals, harp seals, and hooded

seals that is other than incidental.

(b) The taking of any marine mammal not authorized in this

applicable subpart or by any other law or regulation.

(c) The violation of, or failure to comply with, the terms,

conditions, and requirements of this part or a Letter of Authorization

issued under Sec. 216.106.

Sec. 216.134 Mitigation requirements.

The holder of the Letter of Authorization is required to report,

within 6 months from the issuance of a final rule, to the

Administrator, Northeast Region, NMFS, on possible mitigation measures

effecting the least practicable adverse impact on the seals specified

in Sec. 216.130. The report shall also include a recommendation of

which measures, if any, the holder could feasibly implement. A

description of any mitigation measures that Seabrook Station has

considered, but determined would not be feasible, must be included as

well. After submission of such report, NMFS shall determine whether the

holder of the Letter of Authorization must implement measures to effect

the least practicable adverse impact on the seals. If NMFS determines

that such measures must be implemented then NMFS shall specify, after

consultation with the holder of the Letter of Authorization, the

schedule and other conditions for implementation of the measures.

Implementation of such measures must be completed no later than 42

months after the date of issuance of the final rule. Failure of the

holder of the Letter of Authorization to implement such measures in

accordance with the NMFS specifications may be grounds to invalidate

the Letter of Authorization.

Sec. 216.135 Monitoring and reporting.

(a) The holder of the Letter of Authorization is required to

cooperate with NMFS and any other Federal, state, or local agency

monitoring the impacts of the activity on harbor, gray, harp, or hooded

seals.

(b) The holder of the Letter of Authorization must designate a

qualified individual or individuals capable of identifying any seal or

seal parts or marine mammal or marine mammal parts, that occur in the

intake circulating system, including the intake transition structure,

both forebays, and any marine mammal or marine mammal parts observed as

a result of screen washings conducted.

(c) The holder of the Letter of Authorization must conduct at least

two daily visual inspections of the circulating water and service water

forebays during the period specified in the Letter of Authorization.

(d) The holder of the Letter of Authorization must conduct at least

daily inspections of the intake transition structure from April 1

through December, unless weather conditions prevent safe access to the

structure.

(e) The holder of the Letter of Authorization must conduct screen

washings at least daily during the months of higher incidents of

observed takes and this period will be specified in the Letter of

Authorization. During the months not specified in the LOA, screen

washings will be conducted twice a week. Examination of the debris must

be conducted to determine if any seal remains are present.

(f) The holder of the Letter of Authorization must report orally to

the Northeast Regional Administrator, NMFS, by telephone or other

acceptable means, any marine mammals or marine mammal parts found in

the locations specified in Sec. 216.135(b) through (e). Such oral

reports must be made by the close of the next business day following

the finding of any marine mammal or marine mammal parts.

(g) The holder of the Letter of Authorization must arrange to have

a necropsy examination performed by qualified individuals on any marine

mammal or marine mammal parts recovered through monitoring as specified

under Sec. 216.135(b) through (e).

(h) The holder of the Letter of Authorization must also provide

written notification to the Administrator, Northeast Region, NMFS, of

such marine mammal or marine mammal parts found within 30 days from the

time of the discovery. This report must

[[Page 28121]]

contain the results of any examinations or necropsies of the marine

mammals in addition to any other information relating to the

circumstances of the take.

(i) An annual report, identifying mitigation measures implemented

to effect the least practicable adverse impact on the seals and/or are

being considered for implementation pursuant to the requirements

specified at Sec. 216.134, must be submitted to the Administrator,

Northeast Region, NMFS, within 30 days prior to the expiration date of

the issuance of the Letter of Authorization.

Sec. 216.136 Renewal of the Letter of Authorization.

(a) A Letter of Authorization issued under Sec. 216.106 for the

activity identified in Sec. 216.130(a) may be renewed annually provided

the following conditions and requirements are satisfied:

(1) Timely receipt of the reports required under Sec. 216.135,

which have been reviewed by the Administrator, Northeast Region, NMFS,

and determined to be acceptable;

(2) A determination that the maximum incidental take authorizations

in Sec. 216.130(b) will not be exceeded; and

(3) A determination that research on mitigation measures required

under Sec. 216.134(a) and the Letter of Authorization have been

undertaken.

(b) If a species' annual incidental take authorization is exceeded,

NMFS will review the documentation submitted under Sec. 216.135, to

determine whether or not the taking is having more than a negligible

impact on the species or stock involved. The Letter of Authorization

may be renewed provided a negligible impact determination is made and

other conditions and requirements specified in Sec. 216.136(a) are

satisfied, and provided that any modifications of the Letter of

Authorization that may be required are done pursuant to Sec. 216.137.

(c) Notice of issuance of a renewal of the Letter of Authorization

will be published in the Federal Register within 30 days of issuance.

Sec. 216.137 Modifications to the Letter of Authorization.

(a) In addition to complying with the provisions of Sec. 216.106,

except as provided in paragraph (b) of this section, no substantive

modification, including withdrawal or suspension, to the Letter of

Authorization issued pursuant to Sec. 216.106 and subject to the

provisions of this subpart shall be made until after notice and an

opportunity for public comment. For purposes of this paragraph, renewal

of a Letter of Authorization under Sec. 216.136, without modification,

is not considered a substantive modification.

(b) If NMFS determines that an emergency exists that poses a

significant risk to the well-being of the species or stocks of marine

mammals specified in Sec. 216.130, the Letter of Authorization issued

pursuant to this section may be substantively modified without prior

notice and an opportunity for public comment. Notification will be

published in the Federal Register subsequent to the action.

Secs. 216.138--216.140 [Reserved]

[FR Doc. 99-13205 Filed 5-24-99; 8:45 am]

BILLING CODE 3510-22-F