Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Surf Zone Testing/Training and Amphibious Vehicle Training and Weapons Testing, 45994-45999 [E8-18136]
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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.
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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]
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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
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of issuance of an
incidental harassment authorization.
AGENCY:
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:
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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
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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
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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: https://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)
ZOI Radius (m)
Criteria
Threshold
Level B Behavior
Level B TTS Dual Criterion
Level A PTS
Level B Dual Criteria
Level A Injury
Mortality
SABRE 232 lb
NEW
176 dB 1/3 Octave SEL*
182 dB 1/3 Octave SEL
205 dB SEL
23 psi
13 psi-msec
30.5 psi-msec
MK–5
MCS
1,750 lb
NEW
1,440
961
200
857
60
45
2,299
1,658
478
1,788
100
68
DET
130 lb
1,252
796
155
761
58
42
MK–82
ARRAY
1,372 lb
2,207
1,544
436
1,557
86
60
*SEL - Sound energy level
TABLE 2. CETACEAN DENSITIES FOR GULF OF MEXICO SHELF REGION
Individuals/km2
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Dive profile % at surface
Adjusted density (Individuals/
km2)*
0.148
0.089
0.007
0.244
Species
30
30
30
0.810
0.677
0.053
1.54
Bottlenose dolphin
Atlantic spotted dolphin
Bottlenose or Atlantic dolphin
Total
* 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)
Threshold
SABRE
MK–5 MCS
DET
MK–82
Array
Total
Takes*
176 dB 1/3 Octave SEL
182 dB 1/3 Octave SEL
23 psi
205 dB Total SEL
13 psi-msec
30.5 psi-msec
10
5
4
0
0
0
26
13
15
1
0
0
8
3
3
0
0
0
24
12
12
1
0
0
68
33
34
2
0
0
Criteria
Sub-TTS (behavioral level)
Level B Harassment TTS (dual criterion)
Level B TTS (dual criterion)
Level A PTS
Level A Non-lethal Injury
Mortality
*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.
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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
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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
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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
VerDate Aug<31>2005
16:49 Aug 06, 2008
Jkt 214001
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
PO 00000
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Fmt 4703
Sfmt 4703
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
E:\FR\FM\07AUN1.SGM
07AUN1
Federal Register / Vol. 73, No. 153 / Thursday, August 7, 2008 / Notices
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.
sroberts on PROD1PC70 with NOTICES
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
VerDate Aug<31>2005
16:49 Aug 06, 2008
Jkt 214001
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
United States Patent and
Trademark Office, Commerce.
ACTION: Notice.
AGENCY:
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
PO 00000
Frm 00063
Fmt 4703
Sfmt 4703
45999
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
E:\FR\FM\07AUN1.SGM
07AUN1
]]>Agencies
[Federal Register Volume 73, Number 153 (Thursday, August 7, 2008)]
[Notices]
[Pages 45994-45999]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-18136]
-----------------------------------------------------------------------
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 East-West
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,
[[Page 45995]]
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
[[Page 45996]]
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: https://
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 (hearing-related 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
microPa\2\)
----------------------------------------------------------------------------------------------------------------
ZOI Radius (m)
--------------------------------------------------
Criteria Threshold MK-5 MCS
SABRE 232 lb NEW 1,750 lb DET 130 MK-82 ARRAY
NEW lb 1,372 lb
----------------------------------------------------------------------------------------------------------------
Level B 176 dB 1/3 Octave SEL* 1,440 2,299 1,252 2,207
Behavior
Level B TTS 182 dB 1/3 Octave SEL 961 1,658 796 1,544
Dual
Criterion
Level A PTS 205 dB SEL 200 478 155 436
Level B Dual 23 psi 857 1,788 761 1,557
Criteria
Level A 13 psi-msec 60 100 58 86
Injury
Mortality 30.5 psi-msec 45 68 42 60
----------------------------------------------------------------------------------------------------------------
*SEL - Sound energy level
Table 2. Cetacean Densities for Gulf of Mexico Shelf Region
----------------------------------------------------------------------------------------------------------------
Dive profile - Adjusted density
Species Individuals/km\2\ % at surface (Individuals/km\2\)*
----------------------------------------------------------------------------------------------------------------
Bottlenose dolphin 0.148 30 0.810
Atlantic spotted dolphin 0.089 30 0.677
Bottlenose or Atlantic 0.007 30 0.053
dolphin
Total 0.244 ............... 1.54
----------------------------------------------------------------------------------------------------------------
* Adjusted for undetected submerged animals to approximately two standard deviations.
[[Page 45997]]
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 microPa\2\)
----------------------------------------------------------------------------------------------------------------
MK-82 Total
Criteria Threshold SABRE MK-5 MCS DET Array Takes*
----------------------------------------------------------------------------------------------------------------
Sub-TTS 176 dB 1/3 Octave SEL 10 26 8 24 68
(behavioral
level)
Level B 182 dB 1/3 Octave SEL 5 13 3 12 33
Harassment TTS
(dual criterion)
Level B TTS (dual 23 psi 4 15 3 12 34
criterion)
Level A PTS 205 dB Total SEL 0 1 0 1 2
Level A Non- 13 psi-msec 0 0 0 0 0
lethal Injury
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
[[Page 45998]]
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, pre-mission 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 pre-mission 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
[[Page 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 ESA-listed 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 long-term 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
