[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
