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. 970703165-8208-02; 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: Proposed rule; request for comment and information.

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SUMMARY: NMFS has received an application from North Atlantic Energy

Service Corporation (North Atlantic) for an incidental small take

exemption under the Marine Mammal Protection Act (MMPA) to take a small

number of marine mammals incidental to routine operations of the

Seabrook Station nuclear power plant, Seabrook, NH (Seabrook Station).

By this document, NMFS is proposing regulations to allow incidental

takes of certain species of

[[Page 45214]]

seals at a level up to 2 percent of the potential biological removal

(PBR) level for harbor seals, which is currently approximately 34

animals. In order to grant the exemption and issue the regulations,

NMFS has preliminarily determined that these takings will have a

negligible impact on the affected species and stocks of marine mammals.

NMFS invites comment on the application and proposed regulations.

DATES: Comments and information must be postmarked no later than

October 9, 1998.

ADDRESSES: Comments should be addressed to Michael Payne, Chief, Marine

Mammal Division, Office of Protected Resources, NMFS, 1315 East-West

Highway, Silver Spring, MD 20910-3226. A copy of the application, draft

Environmental Assessment (EA) and of the supporting documents may be

obtained by writing to this address, or by telephoning the following

contacts.

Comments regarding the burden-hour estimate or any other aspect of

the collection of information requirement contained in this rule should

be sent to the preceding individual and to the Office of Information

and Regulatory Affairs, Office of Management and Budget (OMB),

Attention: 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 and will not have an unmitigable adverse

impact on the availability of these species for subsistence uses and

that 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 plant 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 ft (18.3

m) of water. During normal power operations about 469,000 gallons per

minute are drawn through the intakes to a 19-ft (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) 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. Lethal takes

of gray seals (Halichoerus grypus), harp seals (Phoca groenlandica),

and hooded seals (Cystophora cristata) have also occurred.

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 ft (9.1 m) in diameter and

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

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

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

ft (3.05 m) above the ocean bottom, and 16-inch (40.6-cm) spaced

vertical bars are in place around the diameter of the intake openings.

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

that can enter the intake. The purpose of the 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 ft 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 unknown whether 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. Given that the local abundance of harbor seals

is known to be increasing and given 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 future takes cannot be

estimated at this point, but an examination of past years' takes may

illustrate a trend for upcoming years.

Comments and Responses

NMFS published an Advance Notice of Proposed Rulemaking (ANPR) in

the Federal Register on July 24, 1997 (62 FR 39799). A 30-day comment

period on the ANPR ended on August 25, 1997. NMFS received several

comments on the ANPR.

Comment 1: NMFS should establish specific goals and timetables for

any mitigation measures that will be incorporated at Seabrook Station.

Response: If NMFS determines that mitigation measures should be

implemented, then Seabrook Station would be required to implement such

measures within a prescribed schedule. There are also clear and concise

guidelines to be used for the monitoring and reporting of any entrapped

seals. A requirement for Seabrook Station to submit a decision on

mitigation measure alternatives is included in the proposed rule.

Comment 2: The proposed lethal take of seals over a 5-year period

would have a negligible impact on the affected populations.

Response: NMFS concurs. The projected takes of any of the four

species of seals appears to be well below any calculated PBR level for

the species. NMFS has preliminarily determined that the current levels

of take are not likely to adversely effect the species or stock through

effects on annual rates of recruitment or survival.

Comment 3: If and when acoustic harassment devices are tested, such

testing should be conducted under a scientific research permit as

specified under the MMPA.

[[Page 45215]]

Response: The testing and use of acoustic harassment devices may

require a scientific research permit if such testing results in the

taking of marine mammals not authorized by either the Small Take

Authorization under consideration or section 101(a)(4) of the MMPA.

Implementation of a monitoring program that includes a mitigation

requirement to use an acoustic harassment device in order to reduce

seal mortality would not require a permit under section 104 of the MMPA

if it did not result in the intentional taking of a marine mammal.

Comment 4: Any proposed authorization should include not only

harbor seals, but also harp seals (Phoca groenlandica), hooded seals

(Cystophora cristata), and gray seals (Halichaerus grypus).

Response: NMFS concurs. Harbor, harp, hooded, and gray seals are

all included as species whose take would be authorized under this

action.

Description of the Habitat and Marine Mammals Affected by the

Activity

A description of the U.S. Atlantic coast environment, its marine

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

EA on this subject and is incorporated herein by reference. Additional

information on Atlantic coast marine mammals can be found in Waring et

al. (1997). These documents are available upon request (see ADDRESSES).

Summary of Potential Impacts

Since 1993, the remains of 37 to 43 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 forebays, 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. The remains of two

gray seals and skull fragments of two harp seals and of one hooded seal

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

identified as harbor seals. For the animals whose ages could be

determined, the majority have been young-of-the-year harbor seals,

divided fairly equally between males and females.

It is proposed that the annual authorized takes be limited to a

fraction of the PBR level for the harbor seal population. Harbor seals

constitute the majority of the animals taken, and the comparatively

larger U.S. population size best lends itself to evaluating future

trends in the regional seal population. The PBR level for western North

Atlantic harbor seals is 1,729. The gray seal, whose regional

population is not as large as that of the harbor seal, has a PBR level

of 122. Harp and hooded seals do not have a PBR level because the

minimum population size in U.S. waters is unknown. The limit for the

annual take authorization would be less than 2.0 percent of the PBR

level of harbor seals, or approximately 34 seals. Any takes of harbor,

gray, harp, and hooded seals would count against the same annual take

authorization limit based on a proportion of the harbor seal PBR level.

Thus, takes of any of these four seal species would be considered to be

a take of a harbor seal.

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 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, a reliable and durable

mitigation system is needed. Any chosen mitigation measure must be also

economically and technologically feasible as a means to affect the

least practicable adverse impact. To ensure that any mitigation method

that may be employed is feasible, NMFS proposes to require Seabrook

Station 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 economic, technological, or safety reasons, then at the

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

that may enhance the survival of young-of-the-year seals.

Monitoring

NMFS proposes to require Seabrook Station personnel to continue

their efforts to monitor the station for the presence of entrapped

seals. Timely awareness of a taken seal allows for a more comprehensive

evaluation on the level of takes and on the characteristics of each

seal that occurs. Seals that go undetected in the intake circulating

water system can decompose and fail to be noticed during examination of

screen wash debris. Frequent and regular inspections of various parts

of the intake circulating water system allow for a greater chance of

detecting a seal, thus providing a better estimate on the total number

of animals that are taken.

This monitoring must include continuing the twice daily visual

inspections of the circulating water and service water forebays as well

as the daily visual inspection of the outer transition structure.

Screen washings must be conducted at least twice weekly. Examination of

the screen wash debris must be conducted to determine if any seal

remains are present.

Reporting Requirements

Seal takes would be required to be reported to NMFS by both oral

and written notification. NMFS must be notified by telephone within 24

hours of any seal takes that have occurred and by letter within 15

business days. The written notification must contain the results from

any examinations conducted by qualified members of the Marine Mammal

Stranding Network as well as any information relating to the take.

National Environmental Policy Act (NEPA)

A draft EA has been prepared for this proposed action. 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 Small Business Administration

that this proposed rule, if adopted, would not have a significant

economic impact on a substantial number of small entities as described

in the Regulatory

[[Page 45216]]

Flexibility Act. If implemented, this rule will affect only North

Atlantic Energy, and an undetermined number of contractors providing

services related to plant operation, including the monitoring of

impacts on marine mammals. Although North Atlantic Energy, because it

generates in excess of 4 million megawatt-hours, by definition, is not

a small business, some of the affected contractors may be small

businesses. The economic impact on these small businesses is dependent

upon the award of contracts for such services. The economic impact

cannot be determined with certainty, but will either be beneficial or

have no effect, directly or indirectly, on small businesses. As such, a

regulatory flexibility analysis is not required.

This proposed rule contains collection-of-information requirements

subject to the provisions of the Paperwork Reduction Act (PRA) and

which has been approved by the Office of Management and Budget 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.

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 PRA unless that collection of information displays a currently

valid OMB control number.

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. Comments are invited on (a) whether the

proposed collection of information is necessary for the proper

performance of the functions of the agency, including whether the

information shall have practical utility; (b) the accuracy of the

agency's estimate of the burden of the proposed collection of

information; (c) ways to enhance the quality, utility, and clarity of

the information to be collected; and (d) ways to minimize the burden of

the collection of information on respondents, including through the use

of automated collection techniques or other forms of information

technology. Comments regarding these burden estimates or any other

aspect of the collections of information, including suggestions for

reducing the burdens, should be forwarded to NMFS and OMB (see

ADDRESSES).

List of Subjects in 50 CFR Part 216

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

Penalties, Reporting and recordkeeping requirements, Seafood,

Transportation.

Dated: August 18, 1998.

Andrew A. Rosenberg,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

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

to be 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--216.139 [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 (Halichaerus 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 2 percent

of the potential biological removal level (see definition in 50 CFR

229.2) for harbor seals for each year of the authorization. Takes of

any of these four species of seals would be evaluated as a take of a

harbor seal for the purposes of this take limit definition.

Sec. 216.131 Effective dates.

Regulations in this subpart are effective from October 1, 1998,

until October 1, 2003.

Sec. 216.132 Permissible methods of taking.

Under a Letter of Authorization (LOA) issued to North Atlantic

Energy Services Corporation for Seabrook Station, the North Atlantic

Energy Services Corporation may incidentally, but not intentionally,

take the 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 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 such measures, if any, the holder could

feasiblely implement. After submission of such report, NMFS shall

determine whether the holder of the LOA 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 LOA, 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

[[Page 45217]]

rule or at the closest scheduled plant outage before or after that

date. Failure of the holder of the LOA to implement such measures in

accordance with the NMFS specifications may be grounds to invalidate

the LOA.

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, approved in advance by the

Northeast Regional Administrator, NMFS, to observe and record any

marine mammals that occur in the intake circulating system, including

the outer transition structure, both forebays, and any marine mammals

observed as a result of screen washings conducted.

(c) The holder of the LOA must conduct at least two daily visual

inspections of the circulating water and service water forebays.

(d) The holder of the LOA must conduct at least daily inspections

of the outer transition structure.

(e) The holder of the LOA must conduct screen washings at least

twice weekly. Examination of the screen wash debris must be conducted

to determine if any seal remains are present.

(f) The holder of the LOA must report orally to the Northeast

Regional Administrator, NMFS, by telephone or other acceptable means,

any seals or seal parts or other marine mammals or marine mammal parts

found in the locations specified in Sec. 216.135(b) or at any other

locations on the property of the holder of the LOA, or through the

inspection required by Sec. 216.135(b) through (e). Such oral reports

must be made within 24 hours of finding the seal or seal parts, or

other marine mammal or marine mammal parts.

(g) The holder of the LOA must arrange to have a necropsy

examination performed by qualified individuals on any seal or seal

parts or marine mammal or marine mammal parts recovered through

monitoring as specified under Sec. 216.135(b) through (e).

(h) The holder of the LOA must also provide written notification to

the Northeast Regional Administrator, NMFS, of such seals or seal parts

or marine mammal or mammal parts found within 15 business days from the

time of the discovery. This report must contain the results of any

examinations or necropsies of the marine mammals as well as any other

information relating to the circumstances of the take.

(i) An annual report on mitigation measures to effect the least

practicable adverse impact on the seals that have been implemented or

are being considered for implementation pursuant to the requirements

specified at Sec. 216.134 must be submitted to the Northeast Regional

Administrator, NMFS, within 30 days prior to the expiration date of the

issuance of the LOA.

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 Northeast Regional Administrator, 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 the species' annual incidental take authorization is

exceeded, NMFS will review the documentation submitted under

Sec. 216.135, to determine that the taking is not having more than a

negligible impact on the species or stock involved. If such taking is

determined to be not having more than a negligible impact on the

species or stock involved, the LOA may be renewed provided other

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

and provided that any modifications of the LOA 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 Sec. 216.106, or renewed 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--216.139 [Reserved]

[FR Doc. 98-22778 Filed 8-24-98; 8:45 am]

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