[Federal Register Volume 67, Number 225 (Thursday, November 21, 2002)]
[Rules and Regulations]
[Pages 70180-70181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-29683]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 021107268-2268-01; I.D. 102402A]
RIN 0648-AQ54


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 is amending the regulations governing the unintentional 
take of small numbers of seals incidental to routine operations of the 
Seabrook Station nuclear power plant, Seabrook, NH. The purpose of this 
amendment is to replace the power plant's official owner/operator's 
name with a generic owner/operator designation. The technical amendment 
will also remove mitigation measures that are no longer applicable to 
the owner/operator of the Seabrook Station nuclear power plant.

DATES: Effective November 21, 2002.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, NMFS, 301-
713-2055, ext 128, or David Gouveia, Northeast Regional Office, NMFS, 
978-281-9280.

SUPPLEMENTARY INFORMATION:

Background

    A final rule authorizing the unintentional take of small numbers of 
harbor seals (Phoca vitulina), gray seals (Halichoerus grypus), harp 
seals (Phoca groenlandica), and hooded seals (Cystophora cristata) 
incidental to the routine operation of the Seabrook Station nuclear 
power plant was issued for the North Atlantic Energy Services 
Corporation (NAESC) on May 25, 1999 (64 FR 28114). That final rule put 
in place the regulations found at Sec.  216.132, which state that under 
a Letter of Authorization (LOA) the NAESC, specifically, may 
incidentally but not intentionally, take marine mammals in the course 
of operating the station's intake cooling water system while in 
possession of a valid LOA issued by NMFS. The regulations also require 
that the LOA holder 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 impacts on 
seals.

Need for Correction

    Subsequent to the publication of the final rule, a tentative sale 
agreement was reached between the NAESC and the FPL Energy Seabrook, 
LLC, for the Seabrook Station nuclear power plant. The closing date for 
the sale of the Seabrook Station nuclear power plant is tentatively 
scheduled for the fall of 2002. As noted above, the regulations 
authorizing the unintentional take of seals specifically names the 
NAESC as the owner. Since the sale of the power plant is imminent, this 
action will change the regulatory language regarding the power plant 
ownership to a generic owner/operator designation.
    In addition, the final rule contains a reporting requirement and a 
schedule for implementation of mitigation measures, which are no longer 
applicable to the owner/operator of the Seabrook Station nuclear power 
plant. Specifically, Sec.  216.134 requires NAESC to issue a report to 
NMFS by January 2000 regarding possible mitigation measures to address 
any adverse impacts on seals. The report was generated and the 
recommended mitigation measure (installation of seal deterrent barriers 
on all three cooling water system intakes) was completed prior to 
January 2000; therefore, this amendment will remove this reporting 
requirement and implementation schedule since NAESC has already 
complied with this requirement. Consequently, this final rule corrects 
the regulatory language to reflect the fact that this reporting 
requirement and schedule are no longer applicable, by reserving Sec.  
216.134 and removing cross-references to that section in Sec.  
216.135(i) and Sec.  216.136(a)(3).

Classification

    The Assistant Administrator for Fisheries (AA) finds that providing 
prior notice and opportunity to comment on this final rule is 
unnecessary, because the rule merely removes the specific name of the 
power plant's owner/operator, inserts a generic designation in its 
place, removes the requirement that has already been complied with and 
has no future effect, and removes cross-references to that former 
section. This action does not change the number of regulated entities, 
nor does it create new requirements or relieve any current 
restrictions. Therefore, the AA, under 5 U.S.C. 553(b)(B), finds good 
cause exists to waive requirements for prior notice and opportunity for 
comment. Also, because this final rule does not impose any new 
requirements on entities subject to these regulations, it is not a 
substantive rule subject to a 30-day delay in effective date under 5 
U.S.C. 553(d).
    This final rule is exempt from review under Executive Order 12866.
    Because prior notice and opportunity for public comment are not 
required for this final rule by 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.

    Dated: November 16, 2002.
Rebecca Lent,
Deputy Assistant Administrator National Marine Fisheries Service.

    For the reasons set out 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. Section 216.132 is revised to read as follows:


Sec.  216.132  Permissible methods of taking.

    Under a Letter of Authorization issued to the owner/operator of 
Seabrook Station nuclear power plant, the owner/operator 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.

[[Page 70181]]

Sec.  216.134 [Reserved]

    3. Section 216.134 is removed and reserved.

Sec.  216.135 [Amended]

    4. In Sec.  216.135, paragraph (i) is removed.

    5. In Sec.  216.136, paragraph (a) is revised.


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; and
    (2) A determination that the maximum incidental take authorizations 
in Sec.  216.130(b) will not be exceeded.
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[FR Doc. 02-29683 Filed 11-20-02; 8:45 am]
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