Comment from Jeffrey Flocken , International Fund for Animal Welfare

January 12, 2009 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 Federal eRulemaking Portal http://www.regulations.gov Re: Taking and Importing Marine Mammals; U.S. Navy Training in the Virginia Capes Range Complex Dear Mr. Payne: On behalf of the International Fund for Animal Welfare (“IFAW”) and our over 1.1 million supporters worldwide, we respectfully submit this comment on National Marine Fisheries Service’s (“NMFS”) Proposed Rule authorizing the take of marine mammals incidental to U.S. Navy training in the Virginia Capes (“VACAPES”) Range Complex. See 73 Fed. Reg. 75631 (Dec. 12, 2008). Please include these comments and enclosures in the administrative record. The VACAPES Range Complex transects the principal migratory pathway of North Atlantic right whales that travel between known calving/nursing areas in the southeastern U.S. and feeding grounds in the northeast U.S. and Canada. Since 1996, IFAW has been actively engaged in efforts to improve protection for the critically endangered North Atlantic right whale and therefore has a vested interest in the Navy training exercises proposed for the VACAPES area. IFAW's state-of- the-art research vessel, Song of the Whale, conducts innovative research on right whale behavior and biology, while also supporting other scientists in carrying out right whale research. IFAW initiated the voluntary ship reporting program that evolved into the Mandatory Ship Reporting System, designed to protect right whales that migrate along the East coast of the United States from ship strikes. Working in partnership with the Commonwealth of Massachusetts and the lobster industry, IFAW designed and implemented an innovative lobster gear replacement project to prevent right whale entanglements. Through this program, over 2,100 miles of dangerous floating groundline was replaced with whale safer sinking line. IFAW has also successfully pursued litigation against the Navy to prepare federally mandated environmental impact assessments of the proposed use of active sonar. Effects of Vessel Strikes on the North Atlantic Right Whale After being hunted almost to extinction, collisions with boats and entanglements in fishing gear now threaten the survival of the North Atlantic right whale, of which only approximately 350 remain. Busy shipping lanes bisect their coastal habitat and fishing activity crowds their feeding, breeding, and migratory habitats. Right whales often hover near the surface of the water, yet are difficult to see. This behavioral characteristic paired with their unresponsiveness to vessel sound leave them especially vulnerable to ship strikes. As stated in the Navy’s proposed rule, marine mammal lookouts are “only expected to visually detect breaching whales, whale blows, and large pods of dolphins and porpoises.” Clearly, this mitigation strategy is insufficient for detecting right whales in the vicinity of Navy training exercises. If a right whale goes undetected, the potential of a vessel collision cannot be ignored since this may have devastating effects on the species. The National Oceanographic and Atmospheric Administration (“NOAA”) has stated that the “loss of even a single individual right whale may contribute to the extinction of the species,” and that “preventing the mortality of one adult female alters the projected outcome.” 69 Fed. Reg. 30,858. The Navy does propose that they will practice increased vigilance in preventing ship strikes from October 15th to April 30th, which is the seasonal migration of right whales as determined by NMFS. The term “increased vigilance” is undefined though and provides no guidance as to how monitoring efforts should be escalated. Although these comments primarily address impacts to right whales, there are several other species that warrant being mentioned in relation to vessel strikes. Of the 11 species of marine mammals known to be hit by ships, fin whales are hit most frequently while humpback, sperm, and right are all hit commonly. These species are all federally listed endangered species that are known to be found in the VACAPES area. Since Navy modeling was based upon population density, it is not projected that any of these species will be injured or experience a mortality as a result of military testing. However, if one of these animals is present in the area of testing, there is a higher probability than that associated with the smaller, faster cetacean species that the animal will be struck. Effects of Ocean Noise on Marine Mammals Anthropogenic sound in the ocean environment can cause both short-term and long-term physiological and behavioral effects in exposed marine animals. Physiological impacts may include auditory trauma, tissue injury, and subsequent stress responses. The Navy states that “explosive ordnance and underwater detonations would result in only short-term effects to most individuals exposed”, yet fails to cite any scientific data to support this claim. Further, FIREX and BOMBEX yield a novel situation for impact analysis since they employ multiple explosions. There is no existing data on the impacts of multiple explosions and therefore potential impacts had to be extrapolated from single explosion testing. Although a detailed modeling system was developed, the cumulative effect of multiple explosions may far exceed the sum of its parts. Further research is needed before claims can be made as to the impacts of multiple explosions on marine mammals. Determination of Potential Takes and Permits Due to limited available data, exposure estimates could not be determined for 11 of the 33 cetacean species found in the VACAPES area. The Navy claims these animals to be considered rare to the area and therefore unlikely to be exposed to bomb detonations. The assumption that one third of the cetacean species in the area will not be exposed nor affected by this ocean noise represents an oversight in the analysis of potential takes. Additionally, the number of projected potential takes at Level A harassment does not correspond with the number of take permits requested. For example, it is projected that 117 takes of common dolphins will occur annually, yet only 20 permits are requested. The Navy does not provide an explanation for this drastic reduction in takes requested. In contrast, the take permits requested for Level B harassment exceed the projected annual takes. Since Level B harassment is assumed to occur at the individual level, the impact to the species is determined to be negligible. As mentioned earlier though, the loss of just one right whale or other endangered whale could significantly affect the species as a whole. Conclusion For the abovementioned reasons, IFAW respectfully requests that NMFS withdraw its Proposed Rule and revise its analysis and mitigation strategies for US Navy Training in the VACAPES Range Complex. Sincerely, Jeffrey Flocken Washington D.C., Director