[Federal Register Volume 64, Number 100 (Tuesday, May 25, 1999)]
[Rules and Regulations]
[Pages 28114-28121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13205]
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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
