45994 Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 

than 200 m (656 ft) around a seismic 

vessel operating a large array of airguns. 

As a result, NMFS believes that injury 

or mortality is highly unlikely due to 

the injury zone being close to the airgun 

array (astern of the vessel), the 

establishment of conservative safety 

zones and shutdown requirements (see 

‘‘Mitigation Measures’’) and the fact that 

there is a strong likelihood that baleen 

whales (bowhead and gray whales) 

would avoid the approaching airguns 

(or vessel) before being exposed to 

levels high enough for there to be any 

possibility of onset of TTS. 

For pinnipeds, information indicates 

that for single seismic impulses, sounds 

would need to be higher than 190 dB 

rms for TTS to occur while exposure to 

several seismic pulses indicates that 

some pinnipeds may incur TTS at 

somewhat lower received levels than do 

small odontocetes exposed for similar 

durations. This indicates to NMFS that 

the 190–dB safety zone provides a 

sufficient buffer to prevent PTS in 

pinnipeds. 

In conclusion, NMFS believes that a 

marine mammal within a radius of <100 

m (<328 ft) around a typical large array 

of operating airguns (larger than that to 

be used by PGS) may be exposed to a 

few seismic pulses with levels of >205 

dB, and possibly more pulses if the 

marine mammal moved with the 

seismic vessel. However, there is no 

specific evidence that exposure to 

pulses of airgun sound can cause PTS in 

any marine mammal, even with large 

arrays of airguns. The array to be used 

by PGS is of moderate size. Given the 

possibility that marine mammals close 

to an airgun array might incur TTS, 

there has been further speculation about 

the possibility that some individuals 

occurring very close to airguns might 

incur PTS. Single or occasional 

occurrences of mild TTS are not 

indicative of permanent auditory 

damage in terrestrial mammals. 

Relationships between TTS and PTS 

thresholds have not been studied in 

marine mammals, but are assumed to be 

similar to those in humans and other 

terrestrial mammals. 

While the number of potential 

incidental harassment takes will depend 

on the distribution and abundance of 

marine mammals (which vary annually 

due to variable ice conditions and other 

factors) in the area of seismic 

operations, the number of potential 

harassment takings is estimated to be 

small (less than 1.5 percent of any of the 

estimated population sizes) and has 

been mitigated to the lowest level 

practicable through incorporation of the 

measures mentioned previously in this 

document. 

In addition, NMFS has determined 

that the location for seismic activity in 

the Beaufort Sea meets the statutory 

requirement for the activity to identify 

the ‘‘specific geographical region’’

within which it will operate. With 

regard to dates for the activity, PGS 

intends to work beginning upon receipt 

of the IHA (late-July) and ceasing 

activity by late-September. 

Finally, NMFS has determined that 

the seismic activity by PGS in the 

Beaufort Sea in 2008 will not have an 

unmitigable adverse impact on the 

availability of marine mammals for 

subsistence uses. This determination is 

supported by the information in this 

Federal Register Notice, including: (1) 

the fall bowhead whale hunt in the 

Beaufort Sea will either be governed by 

the CAA between PGS and the AEWC 

and village whaling captains or by 

mitigation measures contained in the 

IHA; (2) the CAA and IHA conditions 

will significantly reduce impacts on 

subsistence hunters to ensure that there 

will not be an unmitigable adverse 

impact on subsistence uses of marine 

mammals; (3) because ringed seals are 

hunted mainly from October through 

June, although they are available yearround; however, the seismic survey will 

not occur during the primary period 

when these seals are typically 

harvested; (4) because spotted seals are 

hunted mainly during times outside of 

the project timeframe; and (5) because 

the project will begin in the east and 

move towards the west to avoid 

conflicts with the bearded seal hunt at 

Thetis Island, which usually ends in 

August. 

Authorization 

As a result of these determinations, 

NMFS has issued an IHA to PGS for 

conducting a seismic survey in the 

Beaufort Sea in 2008, provided the 

previously mentioned mitigation, 

monitoring, and reporting requirements 

are incorporated. 

Dated: July 30, 2008. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. E8–18104 Filed 8–6–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

RIN 0648–XJ30 

Taking and Importing Marine 

Mammals; Taking Marine Mammals 

Incidental to Surf Zone Testing/ 

Training and Amphibious Vehicle 

Training and Weapons Testing 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of issuance of an 

incidental harassment authorization. 

SUMMARY: In accordance with 

regulations implementing the Marine 

Mammal Protection Act (MMPA) as 

amended, notification is hereby given 

that an Incidental Harassment 

Authorization (IHA) to take marine 

mammals, by harassment, incidental to 

conducting surf zone testing/training 

and amphibious vehicle training and 

weapons testing off the coast of Santa 

Rosa Island (SRI), has been issued to the 

Eglin Air Force Base (Eglin AFB) for a 

period of 1 year. 

DATES: This authorization is effective 

from July 25, 2008, until July 24, 2009. 

ADDRESSES: A copy of the application, 

IHA, and a list of references used in this 

document may be obtained by writing to 

P. Michael Payne, Chief, Permits, 

Conservation and Education Division, 

Office of Protected Resources, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910–3225. A copy of the Santa Rosa 

Island Mission Utilization Plan 

Programmatic Environmental 

Assessment (SRI Mission PEA) (U.S. Air 

Force, 2005) is available by writing to 

the Department of the Air Force, AAC/ 

EMSN, Natural Resources Branch, 501 

DeLeon St., Suite 101, Eglin AFB, FL 

32542–5133. 

FOR FURTHER INFORMATION CONTACT: 

Shane Guan, Office of Protected 

Resources, NMFS, (301) 713–2289, ext 

137. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 101(a)(5)(A) and 101(a)(5)(D) 

of the MMPA (16 U.S.C. 1361 et seq.) 

direct the Secretary of Commerce 

(Secretary) 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 are issued or, 


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if the taking is limited to harassment, a 

notice of a proposed authorization is 

provided to the public for review. 

An authorization shall be granted if 

NMFS finds that the taking will have a 

negligible impact on the species or 

stock(s) and will not have an 

unmitigable adverse impact on the 

availability of the species or stock(s) for 

certain subsistence uses, and if the 

permissible methods of taking and 

requirements pertaining to the 

mitigation, monitoring and reporting of 

such takings are set forth. 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.’’

Subsection 101(a)(5)(D) of the MMPA 

established an expedited process by 

which citizens of the United States can 

apply for an authorization to 

incidentally take marine mammals by 

harassment. With respect to ‘‘military 

readiness activities,’’ the MMPA defines 

‘‘harassment’’ as follows: 

any act of pursuit, torment, or annoyance 

which (i) has the potential to injure a marine 

mammal or marine mammal stock in the wild 

[Level A harassment]; or (ii) has the potential 

to disturb a marine mammal or marine 

mammal stock in the wild by causing 

disruption of behavioral patterns, including, 

but not limited to, migration, breathing, 

nursing, breeding, feeding, or sheltering 

[Level B harassment]. 

Summary of Request 

On November 21, 2005, Eglin AFB 

petitioned NMFS for an authorization 

under section 101(a)(5) of the MMPA for 

the taking, by harassment, of marine 

mammals incidental to programmatic 

mission activities on Eglin’s SRI 

property, including the shoreline of the 

Gulf of Mexico (Gulf or GOM) to a depth 

of 30 feet (9.1 meters), which is also 

known as the surf zone. The distance 

from the island shoreline that 

corresponds to this depth varies from 

approximately 0.5 mile (0.8 km) at the 

western side of the Air Force property 

to 1.5 miles (2.4 km) at the eastern side, 

extending out into the inner continental 

shelf. Following notice and comment, 

NMFS issued an incidental harassment 

authorization (IHA) to Eglin AFB for a 

period of one year from December 11, 

2006, to December 10, 2007 (71 FR 

76989, December 22, 2006), with 

mitigation, monitoring, and reporting 

requirements. On October 16, 2007, 

NMFS received a request from Eglin 

AFB to renew the IHA for a period of 

one year. 

Activities conducted in this area are 

addressed in the Estuarine and Riverine 

Areas Programmatic Environmental 

Assessment (U.S. Air Force, 2003a). The 

proposed action is for the 46th Test 

Wing Commander to establish a mission 

utilization plan for SRI based on 

historical and anticipated future use. 

Current and future operations are 

categorized as either testing or training 

and include: 1) Surf Zone Testing/ 

Training; 2) Landing Craft Air Cushion 

(LCAC) Training and Weapons Testing; 

3) Amphibious Assaults; and 4) Special 

Operations Training. A detailed 

description of the proposed activities is 

provided in the June 22, 2006, Federal 

Register notice of proposed IHA (71 FR 

35870). There is no change of activities 

for the proposed renewal of the IHA, 

therefore, please refer to that Federal 

Register notice for detailed information 

of the activities. 

Comments and Responses 

A notice of receipt and request for 

public comment on the application and 

proposed authorization was published 

on March 28, 2008 (73 FR 16646). 

During the 30–day public comment 

period, NMFS received the comments 

from the Marine Mammal Commission 

(Commission). 

Comment 1: The Commission 

recommends that NMFS issue the 

requested authorization, provided that it 

requires that operations be suspended 

immediately if a dead or seriously 

injured marine mammal is found in the 

vicinity of the operations and the death 

or injury could have occurred incidental 

to the proposed activities. 

Response: NMFS concurs with the 

Commission’s recommendation raised 

in the above comment. 

Description of Marine Mammals 

Affected by the Activity 

Marine mammal species potentially 

occurring within the proposed action 

area include the Atlantic bottlenose 

dolphin (Tursiops truncatus), the 

Atlantic spotted dolphin (Stenella 

frontalis), and the Florida manatee 

(Trichechus manatus latirostris). 

General information on Florida 

manatees can be found in the Florida 

Manatee Recovery Plan (U.S. Fish and 

Wildlife Service, 2001). 

Atlantic bottlenose dolphins are 

distributed throughout the continental 

shelf, coastal, and bay-sound waters of 

the northern GOM and along the U.S. 

mid-Atlantic coast. The identification of 

a biologically-meaningful ‘‘stock’’ of 

bottlenose dolphins in the GOM is 

complicated by the high degree of 

behavioral variability exhibited by this 

species (Wells, 2003). Currently, 

bottlenose dolphins in the U.S. GOM are 

managed as 38 different stocks: one 

northern GOM oceanic stock, one 

northern GOM continental shelf stock, 

three northern GOM costal stocks 

(western, northern, and eastern Gulf), 

and 33 bay, sound, and estuarine stocks 

(Waring et al., 2007). The identification 

of these stocks is based on descriptions 

of relatively discrete dolphin 

communities in these waters. A 

community includes resident dolphins 

that regularly share large portions of 

their ranges, exhibit similar distinct 

genetic profiles, and interact with each 

other to a much greater extent than with 

dolphins in adjacent waters. Bottlenose 

dolphin communities do not constitute 

closed demographic populations, as 

individuals from adjacent communities 

are known to interbreed. Nevertheless, 

the geographic nature of these areas and 

long-term stability of residency patterns 

suggest that many of these communities 

exist as functioning units of their 

ecosystems. 

Within the proposed action area, at 

least three Atlantic bottlenose dolphin 

stocks are expected to occur: the 

northern GOM northern coastal, the 

Pensacola Bay/East Bay stock, and the 

Choctawhatchee Bay stock (Waring et 

al., 2007). The best population size 

estimates available for these stocks are 

more than 13 years old; therefore, the 

current population size for each stock is 

considered unknown (Wade and 

Angliss, 1997). These data are 

insufficient to determine population 

trends for all of the GOM bay, sound 

and estuary bottlenose dolphin 

communities. The relatively high 

number of bottlenose dolphin deaths 

that occurred during mortality events 

(mostly from stranding) since 1990 

raises a concern that some of the stocks 

are stressed. Human-caused mortality 

and serious injury for each of these 

stocks is not known, but considering the 

evidence from stranding data, the total 

human-caused mortality and serious 

injury exceeds 10 percent of the total 

known potential biological removal 

(PBR) or pervious PBR, and, therefore, it 

is probably not insignificant. For these 

reasons, each of these stocks is listed as 

a strategic stock under the MMPA. 

The Atlantic spotted dolphin is 

endemic to the Atlantic Ocean in 

temperate to tropical waters (Perrin et 

al., 1994). In the GOM, this species 

occurs primarily from continental shelf 

waters 10 - 200 m (32.8 - 656.2 ft) deep 

to slope waters <500 m (1,640 ft) deep 

(Fulling et al., 2003). Atlantic spotted 

dolphins were seen in all seasons 

during GulfCet aerial surveys of the 

northern GOM from 1992 to 1998 

(Hansen et al., 1996; Mullin and 

Hoggard, 2003). It has been suggested 

that this species may move inshore 


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seasonally during spring, but data 

supporting this hypothesis are limited 

(Fritts et al., 1983). The best available 

abundance estimate for the northern 

GOM stock of the Atlantic spotted 

dolphin is 30,947 (NMFS, 2005). 

More detailed information on Atlantic 

bottlenose and spotted dolphins can be 

found in the NMFS Stock Assessment 

Reports at: http://www.nefsc.noaa.gov/ 

nefsc/publications/tm/tm201/ 

tm201.pdf. 

Potential Impacts to Marine Mammals 

Potential impacts to marine mammals 

may occur due to underwater noise and 

direct physical impacts (DPI). Noise is 

produced by underwater detonations in 

the surf zone and by the operation of 

amphibious vehicles. DPI could result 

from collisions with amphibious 

vehicles and from ordnance live fire. 

However, with implementation of the 

mitigation actions proposed later in this 

document, the potential for impacts to 

marine mammals are anticipated to be 

de minimus (U.S. Air Force, 2005). 

Explosive criteria and thresholds for 

assessing impacts of explosions on 

marine mammals are summarized here 

in Table 1 and were discussed in detail 

in NMFS’s notice of issuance of an IHA 

for Eglin’s Precision Strike Weapon 

testing activity (70 FR 48675, August 19, 

2005). Please refer to that document for 

background information. 

Estimation of Take and Impact 

Surf Zone Detonation 

Surf zone detonation noise impacts 

are considered within two categories: 

overpressure and acoustics. Underwater 

explosive detonations produce a wave 

of pressure in the water column. This 

pressure wave potentially has lethal and 

injurious impacts, depending on the 

proximity to the source detonation. 

Humans and animals receive the 

acoustic signature of noise as sound. 

Beyond the physical impacts, acoustics 

may cause annoyance and behavior 

modifications (Goertner, 1982). 

The impacts on marine mammals 

from underwater detonations were 

discussed by NMFS in detail in its 

notice of receipt of application for an 

IHA for Eglin’s Air-to-Surface Gunnery 

mission in the Gulf (71 FR 3474, January 

23, 2006) and is not repeated here. 

Please refer to that document for this 

background information. 

A maximum of one surf zone testing/ 

training mission would be completed 

per year. The impact areas of the 

proposed action are derived from 

mathematical calculations and models 

that predict the distances to which 

threshold noise levels would travel. The 

equations for the models consider the 

amount of net explosive, the properties 

of detonations under water, and 

environmental factors such as depth of 

the explosion, overall water depth, 

water temperature, and bottom type. 

The end result of the analysis is an 

area known as the Zone of Influence 

(ZOI). A ZOI is based on an outward 

radial distance from the point of 

detonation, extending to the limit of a 

particular threshold level in a 360–

degree area. Thus, there are separate 

ZOIs for mortality, injury (hearingrelated injury and slight, non-fatal lung 

injury), and harassment (temporary 

threshold shift, or TTS, and sub-TTS). 

Given the radius, and assuming noise 

spreads outward in a spherical manner, 

the entire area ensonified (i.e., exposed 

to the specific noise level being 

analyzed) is estimated. 

The radius of each threshold is shown 

for each shallow water surf zone mine 

clearing system in Table 1. The radius 

is assumed to extend from the point of 

detonation in all directions, allowing 

calculation of the affected area. 

The number of takes is estimated by 

applying marine mammal density to the 

ZOI (area) for each detonation type. 

Species density for most cetaceans is 

based on adjusted GulfCet II aerial 

survey data, which is shown in Table 2. 

GulfCet II data were conservatively 

adjusted upward to approximately two 

standard deviations to obtain 99 percent 

confidence, and a submergence 

correction factor was applied to account 

for the presence of submerged, 

uncounted animals. However, the 

calculation is an overestimate, since up 

to half of the ZOI would be over land 

and very shallow surf, which is not 

considered marine mammal habitat. 

TABLE 1. ZONES OF IMPACT FOR UNDERWATER EXPLOSIVE FROM FOUR MINE CLEARING SYSTEMS (ACOUSTIC UNITS ARE

RE 1 MICROPA2) 

Criteria Threshold 

ZOI Radius (m) 

SABRE 232 lb 

NEW 

MK–5 

MCS 

1,750 lb 

NEW 

DET 

130 lb 

MK–82 

ARRAY 

1,372 lb 

Level B Behavior 176 dB 1/3 Octave SEL* 1,440 2,299 1,252 2,207 

Level B TTS Dual Criterion 182 dB 1/3 Octave SEL 961 1,658 796 1,544 

Level A PTS 205 dB SEL 200 478 155 436 

Level B Dual Criteria 23 psi 857 1,788 761 1,557 

Level A Injury 13 psi-msec 60 100 58 86 

Mortality 30.5 psi-msec 45 68 42 60 

*SEL - Sound energy level 

TABLE 2. CETACEAN DENSITIES FOR GULF OF MEXICO SHELF REGION

Species Individuals/km2 Dive profile - 

% at surface 

Adjusted density (Individuals/ 

km2)* 

Bottlenose dolphin 0.148 30 0.810 

Atlantic spotted dolphin 0.089 30 0.677 

Bottlenose or Atlantic dolphin 0.007 30 0.053 

Total 0.244 1.54 

* Adjusted for undetected submerged animals to approximately two standard deviations. 


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Table 3 lists the noise-related dolphin 

take estimates resulting from surf zone 

detonations that are the subject of this 

proposed IHA. The estimates in each 

category are based on different types of 

explosives at different ranges and 

therefore, each category is associated 

with a degree of take. The take numbers 

represent the combined total of Atlantic 

bottlenose and Atlantic spotted 

dolphins, and do not consider any 

mitigation measures. The use of 

combined Atlantic bottlenose and 

Atlantic spotted dolphin numbers is 

because of the difficulty in distinguish 

them from each other in the field. 

Implementation of mitigation measures 

discussed below would significantly 

decrease the number of takes, although 

a quantitative assessment of take 

reduction is not possible. Discussion of 

the amount of take reduction is 

provided below. 

TABLE 3. TAKE ESTIMATES FROM NOISE IMPACTS TO DOLPHINS (ACOUSTIC UNITS ARE RE 1 MICROPA2) 

Criteria Threshold SABRE MK–5 MCS DET MK–82 

Array 

Total 

Takes* 

Sub-TTS (behavioral level) 176 dB 1/3 Octave SEL 10 26 8 24 68 

Level B Harassment TTS (dual criterion) 182 dB 1/3 Octave SEL 5 13 3 12 33 

Level B TTS (dual criterion) 23 psi 4 15 3 12 34 

Level A PTS 205 dB Total SEL 0 1 0 1 2 

Level A Non-lethal Injury 13 psi-msec 0 0 0 0 0 

Mortality 30.5 psi-msec 0 0 0 0 0 

*Estimated exposure with no mitigation measures in place 

Noise from LCAC 

Noise resulting from LCAC operations 

was considered under a transit mode of 

operation. The LCAC uses rotary air 

screw technology to power the craft over 

the water, therefore, noise from the 

engine is not emitted directly into the 

water. The Navy’s acoustic in-water 

noise characterization studies show the 

noise emitted from the LCAC into the 

water is very similar to that of the MH–

53 helicopter operating at low altitudes. 

Based on the Air Force’s Excess Sound 

Attenuation Model for the LCAC’s 

engines under ground runup condition, 

the data estimate that the maximum 

noise level (98 dBA) is at a point 45 

degrees from the bow of the craft at a 

distance of 61 m (200 ft) in air. 

Maximum noise levels fall below 90 

dBA at a point less than 122 meters (400 

ft) from the craft in air (U.S. Air Force, 

1999). 

Due to the large difference of acoustic 

impedance between air and water, much 

of the acoustic energy would be 

reflected at the surface. Therefore, the 

effects of noise from LCAC to marine 

mammals would be negligible. 

Collision with Vessels 

During the time that amphibious 

vehicles are operating in (or, in the case 

of LCACs, just above) the water, 

encounters with marine mammals are 

possible. A slight possibility exists that 

such encounters could result in a vessel 

physically striking an animal. However, 

this scenario is considered very 

unlikely. Dolphins are extremely mobile 

and have keen hearing and would likely 

leave the vicinity of any vehicle traffic. 

The largest vehicles that would be 

moving are LCACs, and their beam 

measurement can be used for 

conservative impact analyses. The 

operation which potentially uses the 

largest number of LCACs is Amphibious 

Ready Group/Marine Expeditionary 

Unit (ARG/MEU) training. Based on 

analysis in the ARG/MEU Readiness 

Training Environmental Assessment 

(U.S. Air Force, 2003b), LCAC activities 

(over 10 days) could potentially impact 

22.25 square miles of the total water 

surface area. The estimated number of 

bottlenose dolphins in this area is 6.9, 

with an approximately equal number of 

Atlantic spotted dolphins. These species 

would easily avoid collision because the 

LCACs produce noise that would be 

detected some distance away, and 

therefore would be avoided as any other 

boat in the Gulf. In addition, 

Amphibious Assault Vehicles (AAVs) 

move very slowly and could be easily 

avoided. The potential for amphibious 

craft colliding with marine mammals 

and causing injury or death is therefore 

considered remote. 

Live Fire Operations 

Live fire operations with munitions 

directed towards the Gulf have the 

potential to impact marine mammals 

(primarily bottlenose and Atlantic 

spotted dolphins). 

A maximum of two live fire 

operations would be conducted in a 

year, and are associated with expanded 

Special Operations training on SRI. 

Small caliber weapons between 5.56 

mm and .50 caliber with low-range 

munitions would be allowed only 

within designated live fire areas. The 

average range of the munitions is 

approximately 1 km (0.54 nm). If a given 

live fire area was 1 km (0.54 nm) wide, 

then approximately 1.5 dolphins could 

be vulnerable to a munitions strike. 

However, even the largest live fire area 

on SRI is considerably less than 1 km 

(0.54 nm) wide. If live fire is 

conservatively estimated to originate 

from a section of beach 0.2 km (0.11 nm) 

wide, only 0.3 dolphins would be 

within the area of potential DPI (using 

Table 2 density estimates). Finally, the 

mitigation measures discussed below 

would further reduce the likelihood of 

direct impacts to marine mammals due 

to live fire operations. 

Given the infrequency of the surf zone 

detonation (maximum of once per year) 

and the amphibious vehicle and weapon 

testing (maximum of twice per year), 

NMFS believes there is no potential for 

long-term displacement or behavioral 

impacts of marine mammals within the 

proposed action area. 

Mitigation Measures 

Eglin AFB will employ a number of 

mitigation measures in an effort to 

substantially decrease the number of 

animals potentially affected. Visual 

monitoring of the operational area can 

be a very effective means of detecting 

the presence of marine mammals. This 

is particularly true of the species most 

likely to be present (bottlenose and 

Atlantic spotted dolphins) due to their 

tendency to occur in groups, their 

relatively short dive time, and their 

relatively high level of surface activity. 

In addition, the water clarity in the 

northeastern GOM is typically very 

high. It is often possible to view the 

entire water column in the water depth 

that defines the action area (30 feet or 

9.1 m). 

For the surf zone testing/training, 

missions will only be conducted under 

daylight conditions of suitable visibility 

and sea state of number three or less. 

Prior to the mission, a trained observer 

aboard a helicopter will survey (visually 

monitor) the test area, which is a very 

effective method for detecting sea turtles 

and cetaceans. In addition, shipboard 


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personnel will provide supplemental 

observations when available. The size of 

the area to be surveyed will depend on 

the specific test system, but it will 

correspond to the ZOI for Level B 

behavioral harassment (176 dB 1/3 

octave SEL) listed in Table 1. The 

survey will be conducted approximately 

250 feet (76 m) above the sea surface to 

allow observers to scan a large distance. 

If a marine mammal is sighted within 

the ZOI, the mission will be suspended 

until the animal is clear of this area. 

Surf zone testing will be conducted 

between 1 November and 1 March 

whenever possible. 

Navy personnel will only conduct live 

fire testing with sea surface conditions 

of sea state 3 or less on the Beaufort 

scale, which is when there is about 33 

- 50 percent of surface whitecaps with 

0.6 - 0.9 m (2 - 3 ft) waves. During 

daytime missions, small boats will be 

used to survey for marine mammals in 

the proposed action area before and 

after the operations. If a marine mammal 

is sighted within the target or closely 

adjacent areas, the mission will be 

suspended until the area is clear. No 

mitigation for marine mammals would 

be feasible for nighttime missions, 

however, given the remoteness of 

impact, the potential that a marine 

mammal is injured or killed is unlikely. 

Monitoring and Reporting 

The Eglin AFB will train personnel to 

conduct aerial surveys for protected 

species. The aerial survey/monitoring 

team will consist of an observer and a 

pilot familiar with flying transect 

patterns. A helicopter provides a 

preferable viewing platform for 

detection of protected marine species. 

The aerial observer must be experienced 

in marine mammal surveying and be 

familiar with species that may occur in 

the area. The observer will be 

responsible for relaying the location 

(latitude and longitude), the species if 

known, and the number of animals 

sighted. The aerial team will also 

identify large schools of fish, jellyfish 

aggregations, and any large 

accumulation of Sargassum that could 

potentially drift into the ZOI. Standard 

line-transect aerial surveying methods 

will be used. Observed marine 

mammals will be identified to species or 

the lowest possible taxonomic level 

possible. 

The aerial and (potential) shipboard 

monitoring teams will have proper lines 

of communication to avoid 

communication deficiencies. Observers 

will have direct communication via 

radio with the lead scientist, who will 

review the range conditions and 

recommend a Go/No-Go decision to the 

Officer in Tactical Command, who 

makes the final Go/No-Go decision. 

Specific stepwise mitigation 

procedures for SRI surf zone missions 

are outlined below. All ZOIs (mortality, 

injury, TTS) would be monitored. 

Pre-mission Monitoring: 

The purposes of pre-mission 

monitoring are to (1) evaluate the test 

site for environmental suitability of the 

mission (e.g., relatively low numbers of 

marine mammals, etc.) and (2) verify 

that the ZOI is free of visually detectable 

marine mammals and other living 

marine resources. On the morning of the 

test, the lead scientist will confirm that 

the test site can support the mission and 

that the weather is adequate to support 

observations. (1) One Hour Prior to 

Mission 

Approximately one hour prior to the 

mission, or at daybreak, the appropriate 

vessel(s) will be on-site near the 

location of the earliest planned mission 

point. Personnel onboard the vessel will 

assess the suitability of the test site, 

based on visual observation of marine 

mammals. This information will be 

relayed to the Lead Scientist. 

(2) Fifteen Minutes Prior to Mission 

Aerial monitoring will commence at 

the test site 15 minutes prior to the start 

of the mission. The entire ZOI will be 

surveyed by flying transects through the 

area. Shipboard personnel will also 

monitor the area as available. All marine 

mammal sightings will be reported to 

the Lead Scientist, who will enter all 

pertinent data into a sighting database. 

(3) Go/No-Go Decision Process 

The Lead Scientist will record 

sightings and bearing for all protected 

species detected. This will depict 

animal sightings relative to the mission 

area. The Lead Scientist will have the 

authority to declare the range fouled 

and request a hold until monitoring 

indicates that the ZOI is and will remain 

clear of detectable animals. 

The mission will be postponed if any 

marine mammal is visually detected 

within the ZOI for Level B behavioral 

harassment. The delay will continue 

until the marine mammal is confirmed 

to be outside the ZOI for Level B 

behavioral harassment on its own. 

In the event of a postponement, premission monitoring will continue as 

long as weather and daylight hours 

allow. Aerial monitoring is limited by 

fuel and the on-station time of the 

monitoring aircraft. 

Post-mission monitoring: 

Post-mission monitoring is designed 

to determine the effectiveness of premission mitigation by reporting any 

sightings of dead or injured marine 

mammals. Post-detonation monitoring 

will commence immediately following 

each detonation and continue for 15 

minutes. The helicopter will resume 

transects in the area of the detonation, 

concentrating on the area down current 

of the test site. 

The monitoring team will attempt to 

document any marine mammals that 

were found dead or injured after the 

detonation, and, if practicable, recover 

and examine any dead animals. The 

species, number, location, and behavior 

of any animals observed by the 

observation teams will be documented 

and reported to the Lead Scientist. 

Post-mission monitoring activities 

will also include coordination with 

marine animal stranding networks. The 

NMFS maintains stranding networks 

along coasts to collect and circulate 

information about marine mammal 

standings. 

In addition, NMFS requires Eglin to 

monitor the target area for impacts to 

marine mammals and to report on their 

activities. NMFS’ Biological Opinion on 

this action has recommended certain 

monitoring measures to protect marine 

life. The following requirements are 

listed under the IHA: 

(1) Eglin shall continue to implement 

a marine species observer-training 

program in coordination with NMFS. 

This program primarily provides 

expertise to Eglin’s testing and training 

community in the identification of 

marine mammals and other protected 

marine species during surface and aerial 

mission activities in the GOM. 

Additionally, personnel involved in the 

surf zone and amphibious vehicle and 

weapon testing/training will participate 

in the proposed species observation 

training. Observers will receive training 

in protected species survey and 

identification techniques through a 

NMFS-approved training program. 

(2) Eglin will track its use of the surf 

zone and amphibious vehicle and 

weapon testing/training for test firing 

missions and protected resources 

observations, through the use of an 

observer training sheet. 

(3) A summary annual report of 

marine mammal observations and surf 

zone and amphibious vehicle and 

weapon testing/training activities shall 

be submitted to the NMFS Southeast 

Regional Office (SERO) and the 

Headquarters Office of Protected 

Resources by January 31 of each year. 

(4) If a dead or injuried marine 

mammal is observed before or after 

testing, a report must be made to the 

NMFS by the following business day. 

(5) Any unauthorized takes of marine 

mammals (i.e., injury or mortality) must 

be immediately reported to the NMFS 


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Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices 45999 

representative and to the respective 

stranding network representative. 

ESA 

On March 18, 2005, the U.S. Air Force 

(USAF), Eglin AFB, requested initiation 

of formal consultation on all potential 

environmental impacts to ESA-listed 

species from all Eglin AFB mission 

activities on SRI and within the surf 

zone near SRI. These missions include 

the surf zone detonation and 

amphibious vehicle and weapon testing/ 

training that are the subject of this 

proposed IHA. On October 12, 2005, 

NMFS issued a Biological Opinion, 

concluding that the surf zone and 

amphibious vehicle and weapon testing/ 

training are unlikely to jeopardize the 

continued existence of species listed 

under the ESA that are within the 

jurisdiction of NMFS or destroy or 

adversely modify critical habitat. Eglin 

AFB also consulted with the FWS for 

the SRI programmatic program 

regarding ESA-listed species and critical 

habitat under FWS jurisdiction. On 

December 1, 2005, FWS issued a 

Biological Opinion and concluded that 

the proposed mission activities are not 

likely to adversely affect these ESAlisted species based on Eglin’s 

commitment to incorporate measures to 

avoid and minimize impacts to these 

species. 

NEPA 

In March, 2005, the USAF prepared 

the Santa Rosa Island Mission 

Utilization Plan Programmatic 

Environmental Assessment (SRI Mission 

PEA). NMFS reviewed this PEA and 

determined that it satisfies, in large part, 

the standards under the Council on 

Environmental Quality’s regulations and 

NOAA Administrative Order 216–6 for 

implementing the procedural provisions 

of the NEPA (40 CFR sec. 1508.3). On 

May 9, 2007, and April 4, 2008, Eglin 

AFB submitted additional information 

for consideration in re-assessing the 

cumulative impacts associated with the 

proposed issuance of this IHA. 

However, these analyses did not address 

the impact on the environment which 

results from the incremental impact of 

the action when added to other past, 

present, and reasonably foreseeable 

future actions. Therefore, NMFS 

prepared its own supplemental EA to 

update the cumulative impacts analysis. 

A Finding of Non-Significant Impact 

statement is issued on July 24, 2008. 

Determinations 

NMFS has determined that the surf 

zone and amphibious vehicle and 

weapon testing/training that are 

proposed by Eglin AFB off the coast of 

SRI, is unlikely to result in the mortality 

or injury of marine mammals (see 

Tables 2 and 3) and, would result in, at 

worst, a temporary modification in 

behavior by marine mammals. While 

behavioral modifications may be made 

by these species as a result of the surf 

zone detonation and amphibious 

vehicle training activities, any 

behavioral change is expected to have a 

negligible impact on the affected species 

or stocks. As there is no subsistence use 

of these marine mammal species in the 

action area, any behavioral change will 

have no impact on subsistence use. 

Also, given the infrequency of the 

testing/training missions (maximum of 

once per year for surf zone detonation 

and maximum of twice per year for 

amphibious assault training involving 

live fire), there is no potential for longterm displacement or long-lasting 

behavioral impacts of marine mammals 

within the proposed action area. In 

addition, the potential for temporary 

hearing impairment is very low and 

would be mitigated to the lowest level 

practicable through the incorporation of 

the mitigation measures mentioned in 

this document. 

Authorization 

NMFS has issued an IHA, pursuant to 

section 101(a)(5)(D), to Eglin AFB for 

conducting surf zone and amphibious 

vehicle and weapon testing/training off 

the coast of SRI in the northern GOM 

provided the previously mentioned 

mitigation, monitoring, and reporting 

requirements are implemented. 

Dated: July 24, 2008. 

James H. Lecky, 

Director, Office of Protected Resources, 

National Marine Fisheries Service. 

[FR Doc. E8–18136 Filed 8–6–08; 8:45 am] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

[Docket No.: PTO–P–2008–0035] 

Clarification of Patent Regulations 

Currently in Effect, and Revision in 

Applicability Date of Provisions 

Relating to Patent Applications 

Containing Patentably Indistinct 

Claims 

AGENCY: United States Patent and 

Trademark Office, Commerce. 

ACTION: Notice. 

SUMMARY: The United States Patent and 

Trademark Office (USPTO) is 

publishing this notice to clarify which 

patent-related regulations are currently 

in effect. The USPTO is identifying the 

applicability date of those regulatory 

provisions relating to applications 

containing patentably indistinct claims 

which are enjoined in Tafas v. Dudas, 

530 F. Supp. 2d 786 (E.D. Va. 2008). 

Should the injunction be lifted, those 

regulations will apply only to 

applications filed on or after any new 

effective date that would be published 

by the USPTO in the future. 

DATES: Effective Date: August 7, 2008. 

FOR FURTHER INFORMATION CONTACT: The 

Office of Patent Legal Administration, 

by telephone at (571) 272–7704, or by email at PatentPractice@uspto.gov. 

SUPPLEMENTARY INFORMATION: In 2007, 

the United States Patent and Trademark 

Office (USPTO) published a final rule 

revising the rules of practice in patent 

cases in title 37 of the Code of Federal 

Regulations (CFR) relating to continuing 

applications and requests for continued 

examination practices, and for the 

examination of claims in patent 

applications. See Changes to Practice 

for Continued Examination Filings, 

Patent Applications Containing 

Patentably Indistinct Claims, and 

Examination of Claims in Patent 

Applications, 72 FR 46716 (Aug. 21, 

2007), 1322 Off. Gaz. Pat. Office 76 

(Sept. 11, 2007) (Claims and 

Continuations Final Rule). 

The Claims and Continuations Final 

Rule amended existing 37 CFR 1.17(f), 

1.26(a) and (b), 1.52(d)(2), 1.53(b) and 

(c)(4), 1.75(b) and (c), 1.76(b)(5), 1.78, 

1.104(a)(1) and (b), 1.110, 1.114(a) and 

(d), 1.136(a)(1), 1.142(a), 1.145, and 

1.495(g), and added new 37 CFR 

1.105(a)(1)(ix), 1.114(f), (g), and (h), 

1.117, 1.142(c), 1.265, and 1.704(c)(11). 

With respect to 37 CFR 1.704(c)(11), 

the Claims and Continuations Final 

Rule redesignated existing 37 CFR 

1.704(c)(11) as 37 CFR 1.704(c)(12) and 

added a new 37 CFR 1.704(c)(11). 

The changes in the Claims and 

Continuations Final Rule were 

permanently enjoined by the district 

court in Tafas v. Dudas, 530 F. Supp. 

2d 786 (E.D. Va. 2008). That decision is 

currently on appeal to the U.S. Court of 

Appeals for the Federal Circuit. 

The provisions of 37 CFR 1.17(f), 

1.26(a) and (b), 1.52(d)(2), 1.53(b) and 

(c)(4), 1.75(b) and (c), 1.76(b)(5), 1.78, 

1.104(a)(1) and (b), 1.110, 1.114(a) and 

(d), 1.136(a)(1), 1.142(a), 1.145, 1.495(g), 

and 1.704(c)(11) in effect as of August 

7, 2008 are the provisions of 37 CFR 

1.17(f), 1.26(a) and (b), 1.52(d)(2), 

1.53(b) and (c)(4), 1.75(b) and (c), 

1.76(b)(5), 1.78, 1.104(a)(1) and (b), 

1.110, 1.114(a) and (d), 1.136(a)(1), 

1.142(a), 1.145, 1.495(g), and 

1.704(c)(11) in effect on October 31, 

2007, and may be found in the July 2007 


sroberts on PROD1PC70 with NOTICES