[Federal Register Volume 63, Number 164 (Tuesday, August 25, 1998)]
[Proposed Rules]
[Pages 45213-45217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22778]


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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]
BILLING CODE 3510-22-F