Taking and Importing Marine Mammals; U.S. Navy Training in the Jacksonville Range Complex, 28349-28370 [E9-13698]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Rules and Regulations]
[Pages 28349-28370]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13698]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 218

RIN 0648-AW79


Taking and Importing Marine Mammals; U.S. Navy Training in the 
Jacksonville Range Complex

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: NMFS, upon application from the U.S. Navy (Navy), is issuing 
regulations to govern the unintentional taking of marine mammals 
incidental to activities conducted off the Charleston/Jacksonville 
(JAX) Range Complex for the period of June 2009 through June 2014. The 
Navy's activities are considered military readiness activities pursuant 
to the Marine Mammal Protection Act (MMPA), as amended by the National 
Defense Authorization Act for Fiscal Year 2004 (NDAA). These 
regulations, which allow for the issuance of ``Letters of 
Authorization'' (LOAs) for the incidental take of marine mammals during 
the described activities and specified timeframes, prescribe the 
permissible methods of taking and other means of effecting the least 
practicable adverse impact on marine mammal species and their habitat, 
as well as requirements pertaining to the monitoring and reporting of 
such taking.

DATES: Effective June 8, 2009 and is applicable to the Navy on June 5, 
2009 through June 4, 2014.

ADDRESSES: A copy of the Navy's application (which contains a list of 
the references used in this document), NMFS' Record of Decision (ROD), 
and other documents cited herein may be obtained by writing to 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 or by telephone via the contact 
listed here (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Shane Guan, Office of Protected 
Resources, NMFS, (301) 713-2289, ext. 137.

SUPPLEMENTARY INFORMATION: Extensive supplementary information was 
provided in the proposed rule for this activity, which was published in 
the Federal Register on Wednesday, December 17, 2008 (73 FR 76578). 
This information will not be reprinted here in its entirety; rather, 
all sections from the proposed rule will be represented herein and will 
contain either a summary of the material presented in the proposed rule 
or a note referencing the page(s) in the proposed rule where the 
information may be found. Any information that has changed since the 
proposed rule was published will be addressed herein. Additionally, 
this final rule contains a section that responds to the comments 
received during the public comment period.

Background

    Sections 101(a)(5)(A) and (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) during periods of not more than five consecutive years each if 
certain findings are made and regulations are issued or, if the taking 
is limited to harassment and of no more than 1 year, the Secretary 
shall issue a notice of proposed authorization for public review.
    Authorization shall be granted if NMFS finds that the taking will 
have a negligible impact on the species or stock(s), will not have an 
unmitigable adverse impact on the availability of the species or 
stock(s) for subsistence uses, and if the permissible methods of taking 
and requirements pertaining to the mitigation, monitoring and reporting 
of such taking 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.

    The NDAA (Pub. L. 108-136) removed the ``small numbers'' and 
``specified geographical region'' limitations and amended the 
definition of ``harassment'' as it applies to a ``military readiness 
activity'' to read as follows (Section 3(18)(B) of the MMPA):

    (i) Any act that injures or has the significant potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
Harassment]; or (ii) any act that disturbs or is likely to disturb a 
marine mammal or marine mammal stock in the wild by causing 
disruption of natural behavioral patterns, including, but not 
limited to, migration, surfacing, nursing, breeding, feeding, or 
sheltering, to a point where such behavioral patterns are abandoned 
or significantly altered [Level B Harassment].

Summary of Request

    On March 17, 2008, NMFS received an application from the Navy 
requesting authorization for the take of six species of cetaceans 
incidental to the proposed training activities in the JAX Range Complex 
over the course of 5 years. On November 7, 2008, the Navy submitted an 
Addendum with some modifications and additional information to its 
original request. These training activities are classified as military 
readiness activities. The Navy states that these training activities 
may cause various impacts to marine mammal species in the proposed JAX 
Range Complex area. The Navy requests an authorization to take 
individuals of these cetacean species by Level B Harassment. Further, 
the Navy requests authorization to take 2 individual Atlantic spotted 
dolphins per year by injury incidental to the proposed training 
activities in the JAX Range Complex. Please refer to Table 5 of this 
document for detailed information of the potential exposures from 
explosive ordnance (per year) for marine mammals in the JAX Range 
Complex. However, due to the proposed mitigation and monitoring 
measures, NMFS does not expect the proposed action would result in any 
marine mammal mortality. Therefore, no mortality would be authorized 
for the Navy's JAX Range Complex training activities.

Background of Navy Request

    The proposed rule contains a description of the Navy's mission, 
their responsibilities pursuant to Title 10 of the United States Code, 
and the specific purpose and need for the activities for which they 
requested incidental take authorization. The description contained in 
the proposed rule has not changed (73 FR 76578; December 17, 2008).

Description of the Specified Activities

    The proposed rule contains a complete description of the Navy's 
specified activities that are covered by these final regulations, and 
for which the associated incidental take of marine mammals will be 
authorized in the related LOAs. The proposed rule describes the nature 
and number of the training activities. These training activities 
consist of surface warfare [Missile Exercise (MISSILEX)], mine warfare 
[Mine Exercises (MINEX)], amphibious warfare [Firing Exercise

[[Page 28350]]

(FIREX)], small arms training (explosive hand grenades), and vessel 
movement to, from, and within the JAX Range Complex Study Area. The 
description of the action contained in the proposed rule has not 
changed (73 FR 76578, pages 76579-76581). Table 1 summarizes the nature 
and level of these planned activities.
    The Navy provided the following additional information regarding 
the anti-swimmer grenade training. Any single event using the MK3A2 
grenades could consist of up to 10 high explosive (HE) grenades being 
used. The total number of HE grenades used per year will not exceed 80. 
Non-explosive practice grenades may also be used in these training 
events. For modeling purposes, and to account for the highest number of 
grenades that may potentially be used during an individual event, it 
was assumed that there would be 8 events (up to 10 grenades per event), 
or a total of 80 grenades, per year.

             Table 1--Training Events Involving Explosives Planned in the JAX Range Complex Per Year
----------------------------------------------------------------------------------------------------------------
            Operation                  Platform         System/ordnance    Number of events     Event duration
----------------------------------------------------------------------------------------------------------------
Missile Exercise (MISSILEX) (Air  MH-60R/S, SH-60B,   AGM-114 (Hellfire   70 sorties (70      1 hour.
 to Surface).                      HH-60H.             missile).           missiles).
                                  P-3C, and P-8A....  AGM-65 (Maverick    3 sorties (3        1 hour.
                                                       missile).           missiles).
Mine Neutralization.............  EOD...............  20 lb charges.....  12 events.........  6-8 hours.
FIREX with IMPASS...............  CG, DDG...........  5'' gun (IMPASS)..  10 events (390      8 hours.
                                                                           rounds).
Small Arms Training (explosive    Maritime            MK3A2 anti-swimmer  8 events (10        1 hour.
 hand grenades).                   Expeditionary       grenades (HE).      grenades per
                                   Support Group                           event).
                                   (Various Small
                                   Boats).
----------------------------------------------------------------------------------------------------------------

JAX Range Complex

    The JAX Range Complex proposed rule contains a description of the 
JAX Range Complex Study Area along with a description of the areas in 
which certain types of activities will occur. Table 2, included here, 
summarizes the areas in which explosive events will occur and their 
frequency of occurrence. The description of the JAX Range Complex Study 
Area in the proposed rule has not changed.

                                  Table 2--Number of Events Utilizing Explosive Munitions Within the JAX Range Complex
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Annual
                   Sub-area*                                  Ordnance                  Winter        Spring        Summer         Fall         total
                                                                                                                                                events
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 MISSILEX..........................  ............  ............  ............  ............           73
MLTR...........................................  Hellfire..........................         17.5          17.5          17.5          17.5            70
MLTR...........................................  Maverick..........................          0.75          0.75          0.75          0.75            3
                                                 FIREX.............................  ............  ............  ............  ............           10
BB, CC.........................................  5'' rounds........................        **0           **0             5             5              10
                                                 MINEX.............................  ............  ............  ............  ............           12
UNDET North....................................  20 LB.............................          1.25          1.25          2.25          1.25            6
UNDET South....................................  20 LB.............................          1.25          1.25          2.25          1.25            6
                                                 Small Arms Training...............  ............  ............  ............  ............        *** 8
UNDET North....................................  MK3A2 anti-swimmer concussion               1             1             1             1               4
                                                  grenade (0.5 lbs NEW).
UNDET Sorth....................................  MK3A2 anti-swimmer concussion               1             1             1             1               4
                                                  grenade (0.5 lbs NEW).
--------------------------------------------------------------------------------------------------------------------------------------------------------
* See Figure 1 of the LOA application for the location of sub-areas.
** In accordance with the current biological opinion for the Southeast, no live FIREX is conducted during North Atlantic right whale calving season
  (December 1-March 31) and therefore no modeling was completed for the winter and spring season.
*** (10 grenades per event)

Description of Marine Mammals in the Area of the Specified Activities

    There are 29 marine mammal species with possible or confirmed 
occurrence in the JAX Range Complex. As indicated in Table 3, all of 
the marine mammals are cetacean species (7 mysticetes and 22 
odontocetes). Table 6 also includes the Federal status of these marine 
mammal species. Six marine mammal species listed as Federally 
endangered under the Endangered Species Act (ESA) occur in the JAX 
Range Complex: the humpback whale, North Atlantic right whale, sei 
whale, fin whale, blue whale, and sperm whale. The proposed rule also 
includes a discussion of the methods used to estimate marine mammal 
density in the JAX Study Area. The Description of Marine Mammals in the 
Area of the Specified Activities section has not changed from what was 
in the proposed rule (73 FR 75631, pages 76581-76582).

                          Table 3--Marine Mammal Species Found in the JAX Range Complex
----------------------------------------------------------------------------------------------------------------
        Family and scientific name                    Common name                       Federal status
----------------------------------------------------------------------------------------------------------------
Order Cetacea
----------------------------------------------------------------------------------------------------------------
Suborder Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
Eubalaena glacialis......................  North Atlantic right whale......  Endangered.

[[Page 28351]]

 
Megaptera novaeangliae...................  Humpback whale..................  Endangered.
Balaenoptera acutorostrata...............  Minke whale.....................
B. brydei................................  Bryde's whale...................
B. borealis..............................  Sei whale.......................  Endangered.
B. physalus..............................  Fin whale.......................  Endangered.
B. musculus..............................  Blue whale......................  Endangered.
----------------------------------------------------------------------------------------------------------------
Suborder Odontoceti (toothed whales)
----------------------------------------------------------------------------------------------------------------
Physeter macrocephalus...................  Sperm whale.....................  Endangered.
Kogia breviceps..........................  Pygmy sperm whale...............
K. sima..................................  Dwarf sperm whale...............
Ziphius cavirostris......................  Cuvier's beaked whale...........
Mesoplodon minus.........................  True's beaked whale.............
M. europaeus.............................  Gervais' beaked whale...........
M. densirostris..........................  Blainville's beaked whale.......
Steno bredanensis........................  Rough-toothed dolphin...........
Tursiops truncatus.......................  Bottlenose dolphin..............
Stenella attenuate.......................  Pantropical spotted dolphin.....
S. frontalis.............................  Atlantic spotted dolphin........
S. longirostris..........................  Spinner dolphin.................
S. clymene...............................  Clymene dolphin.................
S. coeruleoalba..........................  Striped dolphin.................
Delphinus delphis........................  Common dolphin..................
Lagenodephis hosei.......................  Fraser's dolphin................
Grampus griseus..........................  Risso's dolphin.................
Peponocephala electra....................  Melon-headed whale..............
Feresa attenuate.........................  Pygmy killer whale..............
Pseudorca crassidens.....................  False killer whale..............
Orcinus orca.............................  Killer whale....................
G. macrorhynchus.........................  Short-finned pilot whale........
----------------------------------------------------------------------------------------------------------------

Potential Impacts to Marine Mammal Species

    With respect to the MMPA, NMFS' effects assessment serves four 
primary purposes: (1) To prescribe the permissible methods of taking 
(i.e., Level B Harassment (behavioral harassment), Level A Harassment 
(injury), or mortality, including an identification of the number and 
types of take that could occur by Level A or B harassment or mortality) 
and to prescribe other means of effecting the least practicable adverse 
impact on such species or stock and its habitat (i.e., mitigation); (2) 
to determine whether the specified activity will have a negligible 
impact on the affected species or stocks of marine mammals (based on 
the likelihood that the activity will adversely affect the species or 
stock through effects on annual rates of recruitment or survival); (3) 
to determine whether the specified activity will have an unmitigable 
adverse impact on the availability of the species or stock(s) for 
subsistence uses (however, there are no subsistence communities in the 
JAX Range Complex Study Area); and (4) to prescribe requirements 
pertaining to monitoring and reporting.
    In the Potential Impacts to Marine Mammal Species section of the 
proposed rule NMFS included a qualitative discussion of the different 
ways that vessel strikes and underwater explosive detonations from 
MISSILEX, MINEX, and FIREX may potentially affect marine mammals (some 
of which NMFS would not classify as harassment)--see 73 FR 76578, pages 
76582-76587. Marine mammals may experience direct physiological effects 
such as threshold shift, acoustic masking, impaired communications, 
stress responses, and behavioral disturbance. The information contained 
in Potential Impacts to Marine Mammal Species section from the proposed 
rule has not changed.
    The Navy provided additional information concerning potential 
impacts from MK3A2 anti-swimmer concussion grenades during small arms 
training. Modeling was completed for the MK3A2 explosive source, which 
assumed a 6 ft (1.8 m) detonation depth. The net explosive weight (NEW) 
of the MK3A2 grenade is 0.5 lb.
    Determining the zone of influence (ZOI) of different thresholds 
from MK3A2 explosives in terms of total energy flux density (EFD), 
impulse, peak pressure and 1/3-octave bands EFD must treat the 
sequential explosions differently than the single detonations. For the 
MK3A2, two factors are involved for the sequential explosives that deal 
with the spatial and temporal distribution of the detonations as well 
as the effective accumulation of the resultant acoustics. In view of 
the ZOI determinations, the sequential detonations are modeled as a 
single point event with only the EFD summed incoherently:

[GRAPHIC] [TIFF OMITTED] TR15JN09.000


    The multiple explosion energy criteria were used to determine the 
ZOI for the non-injurious behavioral (without TTS) exposure analysis.
    Table 4 shows the ZOI results of the model estimation for MK3A2 
grenade in the JAX Range Complex. The ZOI, when multiplied by the 
animal densities and total number of events, provides the exposure 
estimates for that species. In addition to other mitigation measures, 
lookouts will visually survey the target area for marine mammals. The 
exercise will not be conducted until the area is clear of protected 
species and will be suspended if any enter the buffer area.

[[Page 28352]]



                                            Table 4--Estimated ZOIs (km \2\) for Small Arms Training (Anti-Swimmer Grenades) in the JAX Range Complex
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Estimated ZOI @ 177 dB re 1         Estimated ZOI @ 205 dB re 1          Mortality ZOI @ 30.5 psi
                                                                                            [mu]Pa\2\-sec (multiple             [mu]Pa\2\-sec or 13 psi      -----------------------------------
                      Area*                                    Ordnance                        detonations only)         ------------------------------------
                                                                                     ------------------------------------                                       Win      Spr      Sum      Fall
                                                                                        Win      Spr      Sum      Fall     Win      Spr      Sum      Fall
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
UNDET North.....................................  MK3A2 grenade.....................     4.25     4.30     3.97     3.97     0.09     0.09     0.09     0.09    <0.01    <0.01    <0.01    <0.01
UNDET South.....................................  MK3A2 grenade.....................     4.67     4.72     4.24     4.59     0.09     0.09     0.09     0.09    <0.01    <0.01    <0.01    <0.01
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: ZOIs for the MK3A2 grenades are modeled as multiple detonations (10 grenades being used during each event).
* See Figure 1 of the LOA application for the location of sub-areas.

    Later, in the Estimated Take of Marine Mammals Section, NMFS 
relates and quantifies the potential effects to marine mammals from 
underwater detonation of explosives discussed here to the MMPA 
definitions of Level A and Level B Harassment.
    Additional analyses on potential impacts to marine mammals from 
vessel movement within the JAX Range Complex Study Area are added 
below.
    Vessel Movement: There are limited data concerning marine mammal 
behavioral responses to vessel traffic and vessel noise, and a lack of 
consensus among scientists with respect to what these responses mean or 
whether they result in short-term or long-term adverse effects. In 
those cases where there is a busy shipping lane or where there is large 
amount of vessel traffic, marine mammals may experience acoustic 
masking (Hildebrand, 2005) if they are present in the area (e.g., 
killer whales in Puget Sound; Foote et al., 2004; Holt et al., 2008). 
In cases where vessels actively approach marine mammals (e.g., whale 
watching or dolphin watching boats), scientists have documented that 
animals exhibit altered behavior such as increased swimming speed, 
erratic movement, and active avoidance behavior (Bursk, 1983; Acevedo, 
1991; Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et 
al., 2002; Constantine et al., 2003), reduced blow interval (Ritcher et 
al., 2003), disruption of normal social behaviors (Lusseau, 2003; 
2006), and the shift of behavioral activities which may increase 
energetic costs (Constantine et al., 2003; 2004). A detailed review of 
marine mammal reactions to ships and boats is available in Richardson 
et al. (1995). For each of the marine mammals taxonomy groups, 
Richardson et al. (1995) provided the following assessment regarding 
cetacean reactions to vessel traffic:
    Toothed whales: ``In summary, toothed whales sometimes show no 
avoidance reaction to vessels, or even approach them. However, 
avoidance can occur, especially in response to vessels of types used to 
chase or hunt the animals. This may cause temporary displacement, but 
we know of no clear evidence that toothed whales have abandoned 
significant parts of their range because of vessel traffic.''
    Baleen whales: ``When baleen whales receive low-level sounds from 
distant or stationary vessels, the sounds often seem to be ignored. 
Some whales approach the sources of these sounds. When vessels approach 
whales slowly and nonaggressively, whales often exhibit slow and 
inconspicuous avoidance maneuvers. In response to strong or rapidly 
changing vessel noise, baleen whales often interrupt their normal 
behavior and swim rapidly away. Avoidance is especially strong when a 
boat heads directly toward the whale.''
    It is important to recognize that behavioral responses to stimuli 
are complex and influenced to varying degrees by a number of factors 
such as species, behavioral contexts, geographical regions, source 
characteristics (moving or stationary, speed, direction, etc.), prior 
experience of the animal, and physical status of the animal. For 
example, studies have shown that beluga whales reacted differently when 
exposed to vessel noise and traffic. In some cases, na[iuml]ve beluga 
whales exhibited rapid swimming from ice-breaking vessels up to 80 km 
away, and showed changes in surfacing, breathing, diving, and group 
composition in the Canadian high Arctic where vessel traffic is rare 
(Finley et al., 1990). In other cases, beluga whales were more tolerant 
of vessels, but differentially responsive by reducing their calling 
rates, to certain vessels and operating characteristics (especially 
older animals) in the St. Lawrence River where vessel traffic is common 
(Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales 
continued to feed when surrounded by fishing vessels and resisted 
dispersal even when purposefully harassed (Fish and Vania, 1971).
    In reviewing more than 25 years of whale observation data, Watkins 
(1986) concluded that whale reactions to vessel traffic were ``modified 
by their previous experience and current activity: habituation often 
occurred rapidly, attention to other stimuli or preoccupation with 
other activities sometimes overcame their interest or wariness of 
stimuli.'' Watkins noticed that over the years of exposure to ships in 
the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed 
from frequent positive (such as approaching vessels) interest to 
generally uninterested reactions; finback whales (B. physalus) changed 
from mostly negative (such as avoidance) to uninterested reactions; 
right whales (Eubalaena glacialis) apparently continued the same 
variety of responses (negative, uninterested, and positive responses) 
with little change; and humpbacks (Megaptera novaeangliae) dramatically 
changed from mixed responses that were often negative to often strongly 
positive reactions. Watkins (1986) summarized that ``whales near shore, 
even in regions with low vessel traffic, generally have become less 
wary of boats and their noises, and they have appeared to be less 
easily disturbed than previously. In particular locations with intense 
shipping and repeated approaches by boats (such as the whale-watching 
areas of Stellwagen Bank), more and more whales had P [positive] 
reactions to familiar vessels, and they also occasionally approached 
other boats and yachts in the same ways.''
    In the case of the JAX Range Complex, naval vessel traffic is 
expected to be much lower than in areas where there are large shipping 
lanes and large numbers of fishing vessels and/or recreational vessels. 
Nevertheless, the proposed action area is well traveled by a variety of 
commercial and recreational vessels, so marine mammals in the area are 
expected to be habituated to vessel noise.
    As described in the proposed rule, operations involving vessel 
movements

[[Page 28353]]

occur intermittently and are variable in duration, ranging from a few 
hours up to 2 weeks. These operations are widely dispersed throughout 
the JAX Range Complex OPAREA, which is a vast area encompassing 50,090 
square nautical miles (nm\2\). The Navy logs about 1,000 total vessel 
days within the Study Area during a typical year. Consequently, the 
density of ships within the Study Area at any given time is extremely 
low (i.e., less than 0.00005 ships/nm\2\).
    Moreover, naval vessels transiting the study area or engaging in 
the training exercises will not actively or intentionally approach a 
marine mammal or change speed drastically. Except under certain 
mitigation measures that protect right whales and other marine mammals 
from vessel strike, all vessels transit to, from, and within the range 
complexes will be traveling at speeds generally ranging from 10 to 14 
knots.
    The final rule contains additional mitigation measures requiring 
Navy vessels to keep at least 500 yards (460 m) away from any observed 
whale and at least 200 yards (183 m) from marine mammals other than 
whales, and avoid approaching animals head-on. Although the radiated 
sound from the vessels will be audible to marine mammals over a large 
distance, it is unlikely that animals will respond behaviorally to low-
level distant shipping noise as the animals in the area are likely to 
be habituated to such noises (Nowacek et al., 2004). In light of these 
facts, NMFS does not expect the Navy's vessel movements to result in 
Level B harassment.

Mitigation

    In order to issue an incidental take authorization (ITA) under 
Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations 
setting forth the ``permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable adverse 
impact on such species or stock and its habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.'' The NDAA amended the MMPA as it relates to military 
readiness activities and the incidental take authorization process such 
that ``least practicable adverse impact'' shall include consideration 
of personnel safety, practicality of implementation, and impact on the 
effectiveness of the ``military readiness activity.'' The JAX Range 
Complex training activities described in the proposed rule are 
considered military readiness activities.
    NMFS reviewed the Navy's proposed JAX Range Complex training 
activities and the proposed JAX Range Complex mitigation measures 
presented in the Navy's application to determine whether the activities 
and mitigation measures were capable of achieving the least practicable 
adverse effect on marine mammals.
    Any mitigation measure prescribed by NMFS should be known to 
accomplish, have a reasonable likelihood of accomplishing (based on 
current science), or contribute to the accomplishment of one or more of 
the general goals listed below:
    (a) Avoidance or minimization of injury or death of marine mammals 
wherever possible (goals b, c, and d may contribute to this goal).
    (b) A reduction in the numbers of marine mammals (total number or 
number at biologically important time or location) exposed to 
underwater detonations or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing harassment takes only).
    (c) A reduction in the number of times (total number or number at 
biologically important time or location) individuals would be exposed 
to underwater detonations or other activities expected to result in the 
take of marine mammals (this goal may contribute to a, above, or to 
reducing harassment takes only).
    (d) A reduction in the intensity of exposures (either total number 
or number at biologically important time or location) to underwater 
detonations or other activities expected to result in the take of 
marine mammals (this goal may contribute to a, above, or to reducing 
the severity of harassment takes only).
    (e) A reduction in adverse effects to marine mammal habitat, paying 
special attention to the food base, activities that block or limit 
passage to or from biologically important areas, permanent destruction 
of habitat, or temporary destruction/disturbance of habitat during a 
biologically important time.
    (f) For monitoring directly related to mitigation--an increase in 
the probability of detecting marine mammals, thus allowing for more 
effective implementation of the mitigation (shut-down zone, etc.).
    NMFS reviewed the Navy's proposed mitigation measures, which 
included a careful balancing of the likely benefits of any particular 
measure to the marine mammals with the likely effect of that measure on 
personnel safety, practicality of implementation, and impact on the 
``military-readiness activity.''
    The Navy's proposed mitigation measures were described in detail in 
the proposed rule (73 FR 76578; December 17, 2008; pages 76592-76595). 
Slight wording changes have been made to the Personnel Training 
Lookouts section as presented in the Proposed Rule (page 76592). Bullet 
6 of that section is modified to read: ``At night, to increase 
effectiveness, lookouts would not continuously sweep the horizon with 
their eyes. Instead, lookouts would scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they would look a 
little to one side and out of the corners of their eyes, paying 
attention to the things on the outer edges of their field of vision. 
Lookouts will also have night vision devices available for use.''
    The Navy's measures addressing operating procedures for training 
activities using underwater detonation of explosives and firing 
exercises, and mitigation related to vessel traffic and the North 
Atlantic right whale (NARW) were described in the proposed rule. No 
changes have been made to the mitigation measures described in the 
proposed rule except the following requirements.
    During specific at-sea training events, if a marine mammal is 
injured or killed as a result of the proposed Navy training activities 
(e.g., instances in which it is clear that munitions explosions caused 
the injury or death), the Navy shall suspend its activities immediately 
and report such incident to NMFS.
    Regarding the NARW vessel collision measures, NMFS expanded the 
final rule to include vessel collision avoidance measures for the South 
Atlantic and the Northeast Atlantic to be consistent with the U.S. 
Navy's Atlantic Fleet Active Sonar Training (AFAST) rule. The Navy is 
required to comply with the same ship collision measures while 
transiting and conducting exercises within specific NARW areas along 
the East Coast. The specific vessel collision measures in the Northeast 
and Southeast Atlantic regions are listed in the regulatory text of the 
final rule.
    NMFS has determined that these mitigation measures (which include a 
suite of measures that specifically address vessel transit and the 
NARW) are adequate means of effecting the least practicable adverse 
impacts on marine mammal species or stocks and their habitat while also 
considering personnel safety, practicality of implementation, and 
impact on the effectiveness of the military readiness activity.

Monitoring

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the

[[Page 28354]]

monitoring and reporting of such taking.'' The MMPA implementing 
regulations at 50 CFR 216.104(a)(13) indicate that requests for LOAs 
must include the suggested means of accomplishing the necessary 
monitoring and reporting that will result in increased knowledge of the 
species and of the level of taking or impacts on populations of marine 
mammals that are expected to be present.
    Monitoring measures prescribed by NMFS should accomplish one or 
more of the following general goals:
    (1) An increase in the probability of detecting marine mammals, 
both within the safety zone (thus allowing for more effective 
implementation of the mitigation) and in general to generate more data 
to contribute to the effects analyses.
    (2) An increase in our understanding of how many marine mammals are 
likely to be exposed to levels of underwater detonations or other 
stimuli that we associate with specific adverse effects, such as 
behavioral harassment, temporary threshold shift of hearing sensitivity 
(TTS), or permanent threshold shift of hearing sensitivity (PTS).
    (3) An increase in our understanding of how marine mammals respond 
(behaviorally or physiologically) to underwater detonations or other 
stimuli expected to result in take and how anticipated adverse effects 
on individuals (in different ways and to varying degrees) may impact 
the population, species, or stock (specifically through effects on 
annual rates of recruitment or survival).
    (4) An increased knowledge of the affected species.
    (5) An increase in our understanding of the effectiveness of 
certain mitigation and monitoring measures.
    (6) A better understanding and record of the manner in which the 
authorized entity complies with the incidental take authorization.

Proposed Monitoring Plan for the JAX Range Complex Study Area

    As NMFS indicated in the proposed rule, the Navy has (with input 
from NMFS) fleshed out the details of and made improvements to the JAX 
Range Complex Monitoring Plan. Additionally, NMFS and the Navy have 
incorporated a suggestion from the public, which recommended the Navy 
hold a peer review workshop to discuss the Navy's Monitoring Plans for 
the multiple range complexes and training exercises in which the Navy 
would receive ITAs (see Monitoring Workshop section). The final JAX 
Range Complex Monitoring Plan, which is summarized below, may be viewed 
at https://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The 
Navy plans to implement all of the components of the Monitoring Plan; 
however, only the marine mammal components (not the sea turtle 
components) will be required by the MMPA regulations and associated 
LOAs.
    A summary of the monitoring methods required for use during 
training events in the JAX Range Complex are described below. These 
methods include a combination of individual elements that are designed 
to allow a comprehensive assessment.

I. Vessel or Aerial Surveys

    (A) The Holder of this Authorization shall visually survey a 
minimum of 2 explosive events per year, one of which shall be a 
multiple detonation event. One of the vessel or aerial surveys should 
involve professionally trained marine mammal observers (MMOs).
    (B) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (C) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel-based 
surveys a passive acoustic system (hydrophone or towed array) would be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (D) When conducting a particular survey, the survey team shall 
collect:
     Location of sighting;
     Species (if not possible, indicate whale, dolphin or 
pinniped);
     Number of individuals;
     Whether calves were observed;
     Initial detection sensor;
     Length of time observers maintained visual contact with 
marine mammal;
     Wave height;
     Visibility;
     Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
     Distance of marine mammal from actual detonations (or 
target spot if not yet detonated);
     Observed behavior--Watchstanders will report, in plain 
language and without trying to categorize in any way, the observed 
behavior of the animal(s) (such as animal closing to bow ride, 
paralleling course/speed, floating on surface and not swimming etc.), 
including speed and direction;
     Resulting mitigation implementation--Indicate whether 
explosive detonations were delayed, ceased, modified, or not modified 
due to marine mammal presence and for how long; and
     If observation occurs while explosives are detonating in 
the water, indicate munition type in use at time of marine mammal 
detection (e.g., were the 5-inch guns actually firing when the animals 
were sighted? Did animals enter an area 2 minutes after a huge 
explosion went off?).

II. Passive Acoustic Monitoring

    The Navy shall conduct passive acoustic monitoring when 
operationally feasible:
    (A) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (B) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).

III. Marine Mammal Observers on Navy Platforms

    (A) Marine mammal observers (MMOs) selected for aerial or vessel 
survey shall be placed on a Navy platform during one of the exercises 
being monitored per year. The remaining designated exercise(s) shall be 
monitored by the Navy lookouts/watchstanders.
    (B) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (C) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The 
events selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (D) MMOs shall observe from the same height above water as the 
lookouts.
    (E) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if 
an animal is observed within the shutdown zone that has not been 
observed by the lookout, the MMO shall inform the lookout of the 
sighting, and the lookout shall take the

[[Page 28355]]

appropriate action through the chain of command.
    (F) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. All MMO sightings shall be conducted according to a standard 
operating procedure. Information collected by MMOs should be the same 
as those collected by Navy lookout/watchstanders described above.
    The Monitoring Plan for JAX Range Complex has been designed as a 
collection of focused ``studies'' (described fully in the JAX 
Monitoring Plan) to gather data that will allow the Navy to address the 
following questions:
    (a) What are the behavioral responses of marine mammals and sea 
turtles that are exposed to explosives?
    (b) Is the Navy's suite of mitigation measures effective at 
avoiding injury and mortality of marine mammals and sea turtles?
    Data gathered in these studies will be collected by qualified, 
professional marine mammal biologists or trained Navy lookouts/
watchstanders that are experts in their field. This monitoring plan has 
been designed to gather data on all species of marine mammals that are 
observed in the JAX Range Complex study area.

Monitoring Workshop

    During the public comment period on past proposed rules for Navy 
actions (such as the Hawaii Range Complex (HRC), and Southern 
California Range Complex (SOCAL) proposed rules), NMFS received a 
recommendation that a workshop or panel be convened to solicit input on 
the monitoring plan from researchers, experts, and other interested 
parties. The JAX Range Complex proposed rule included an adaptive 
management component and both NMFS and the Navy believe that a workshop 
would provide a means for Navy and NMFS to consider input from 
participants in determining whether (and if so, how) to modify 
monitoring techniques to more effectively accomplish the goals of 
monitoring set forth earlier in the document. NMFS and the Navy believe 
that this workshop concept is valuable in relation to all of the Range 
Complexes and major training exercise rules and LOAs that NMFS is 
working on with the Navy at this time, and consequently this single 
Monitoring Workshop will be included as a component of all of the rules 
and LOAs that NMFS will be processing for the Navy in the next year or 
so.
    The Navy, with guidance and support from NMFS, will convene a 
Monitoring Workshop, including marine mammal and acoustic experts as 
well as other interested parties, in 2011. The Monitoring Workshop 
participants will review the monitoring results from the previous two 
years of monitoring pursuant to the JAX Range Complex rule as well as 
monitoring results from other Navy rules and LOAs (e.g., VACAPES, 
AFAST, SOCAL, HRC, and other rules). The Monitoring Workshop 
participants would provide their individual recommendations to the Navy 
and NMFS on the monitoring plan(s) after also considering the current 
science (including Navy research and development) and working within 
the framework of available resources and feasibility of implementation. 
NMFS and the Navy would then analyze the input from the Monitoring 
Workshop participants and determine the best way forward from a 
national perspective. Subsequent to the Monitoring Workshop, 
modifications would be applied to monitoring plans as appropriate.

Integrated Comprehensive Monitoring Program

    In addition to the site-specific Monitoring Plan for the JAX Range 
Complex, the Navy will complete the Integrated Comprehensive Monitoring 
Program (ICMP) Plan by the end of 2009. The ICMP will provide the 
overarching coordination that will support compilation of data from 
project-specific monitoring plans (e.g., JAX Monitoring Plan) as well 
as Navy funded research and development (R&D) studies. The ICMP will 
coordinate the monitoring program's progress towards meeting its goals 
and developing a data management plan. The ICMP will be evaluated 
annually to provide a matrix for progress and goals for the following 
year, and will make recommendations on adaptive management for 
refinement and analysis of the monitoring methods.
    The primary objectives of the ICMP are to:
     Monitor and assess the effects of Navy activities on 
protected species;
     Ensure that data collected at multiple locations is 
collected in a manner that allows comparison between and among 
different geographic locations;
     Assess the efficacy and practicality of the monitoring and 
mitigation techniques;
     Add to the overall knowledge-base of marine species and 
the effects of Navy activities on marine species.
    The ICMP will be used both as: (1) A planning tool to focus Navy 
monitoring priorities (pursuant to ESA/MMPA requirements) across Navy 
Range Complexes and Exercises; and (2) an adaptive management tool, 
through the consolidation and analysis of the Navy's monitoring and 
watchstander data, as well as new information from other Navy programs 
(e.g., R&D), and other appropriate newly published information.
    In combination with the 2011 Monitoring Workshop and the adaptive 
management component of the JAX Range Complex rule and the other 
planned Navy rules (e.g. VACAPES Range Complex, Cherry Point Range 
Complex, etc.), the ICMP could potentially provide a framework for 
restructuring the monitoring plans and allocating monitoring effort 
based on the value of particular specific monitoring proposals (in 
terms of the degree to which results would likely contribute to stated 
monitoring goals, as well the likely technical success of the 
monitoring based on a review of past monitoring results) that have been 
developed through the ICMP framework, instead of allocating based on 
maintaining an equal (or commensurate to effects) distribution of 
monitoring effort across range complexes. For example, if careful 
prioritization and planning through the ICMP (which would include a 
review of both past monitoring results and current scientific 
developments) were to show that a large, intense monitoring effort in 
Hawaii would likely provide extensive, robust and much-needed data that 
could be used to understand the effects of sonar throughout different 
geographical areas, it may be appropriate to have other range complexes 
dedicate money, resources, or staff to the specific monitoring proposal 
identified as ``high priority'' by the Navy and NMFS, in lieu of 
focusing on smaller, lower priority projects divided throughout their 
home range complexes.
    The ICMP will identify:
     A means by which NMFS and the Navy would jointly consider 
prior years monitoring results and advancing science to determine if 
modifications are needed in mitigation or monitoring measures to better 
effect the goals laid out in the Mitigation and Monitoring sections of 
the JAX Range Complex rule.
     Guidelines for prioritizing monitoring projects.
     If, as a result of the workshop and similar to the example 
described in the paragraph above, the Navy and NMFS decide it is 
appropriate to restructure the monitoring plans for multiple ranges 
such that they are no longer evenly allocated (by rule), but rather 
focused on priority monitoring projects that are not necessarily tied 
to the geographic area addressed in the rule, the ICMP will be modified 
to include a very clear and unclassified record-keeping system that

[[Page 28356]]

will allow NMFS and the public to see how each range complex/project is 
contributing to all of the ongoing monitoring programs (resources, 
effort, money, etc.).

Adaptive Management

    The final regulations governing the take of marine mammals 
incidental to Navy's JAX Range Complex exercises contain an adaptive 
management component. The use of adaptive management will give NMFS the 
ability to consider new data from different sources to determine (in 
coordination with the Navy) on an annual basis if mitigation or 
monitoring measures should be modified or added (or deleted) if new 
data suggests that such modifications are appropriate (or are not 
appropriate) for subsequent annual LOAs.
    Following are some of the possible sources of applicable data:
     Results from the Navy's monitoring from the previous year 
(either from JAX Range Complex or other locations).
     Findings of the Workshop that the Navy will convene in 
2011 to analyze monitoring results to date, review current science, and 
recommend modifications, as appropriate to the monitoring protocols to 
increase monitoring effectiveness.
     Compiled results of Navy funded research and development 
(R&D) studies (presented pursuant to the ICMP, which is discussed 
elsewhere in this document).
     Results from specific stranding investigations (either 
from JAX Range Complex or other locations).
     Results from general marine mammal and sound research 
(funded by the Navy or otherwise).
     Any information which reveals that marine mammals may have 
been taken in a manner, extent or number not authorized by these 
regulations or subsequent Letters of Authorization.
    Mitigation measures could be modified or added (or deleted) if new 
data suggest that such modifications would have (or would not have) a 
reasonable likelihood of accomplishing the goals of mitigation laid out 
in this final rule and if the measures are practicable. NMFS would also 
coordinate with the Navy to modify or add to (or delete) the existing 
monitoring requirements if the new data suggest that the addition of 
(or deletion of) a particular measure would more effectively accomplish 
the goals of monitoring laid out in this final rule. The reporting 
requirements associated with this rule are designed to provide NMFS 
with monitoring data from the previous year to allow NMFS to consider 
the data and issue annual LOAs. NMFS and the Navy will meet annually, 
prior to LOA issuance, to discuss the monitoring reports, Navy R&D 
developments, and current science and whether mitigation or monitoring 
modifications are appropriate.

Reporting

    In order to issue an ITA for an activity, Section 101(a)(5)(A) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking.'' Effective reporting is 
critical to ensure compliance with the terms and conditions of a LOA, 
and to provide NMFS and the Navy with data of the highest quality based 
on the required monitoring. As NMFS noted in its proposed rule, 
additional detail has been added to the reporting requirements since 
they were outlined in the proposed rule. The updated reporting 
requirements are all included below. A subset of the information 
provided in the monitoring reports may be classified and not releasable 
to the public.
    NMFS will work with the Navy to develop tables that allow for 
efficient submission of the information required below.

General Notification of Injured or Dead Marine Mammals

    Navy personnel will ensure that NMFS (regional stranding 
coordinator) is notified immediately (or as soon as operational 
security allows) if an injured or dead marine mammal is found during or 
shortly after, and in the vicinity of, any Navy training exercise 
utilizing underwater explosives or other activities. The Navy will 
provide NMFS with species or description of the animal(s), the 
condition of the animal(s) (including carcass condition if the animal 
is dead), location, time of first discovery, observed behaviors (if 
alive), and photo or video (if available).

Annual JAX Range Complex Monitoring Plan Report

    The Navy shall submit a report annually on March 1 describing the 
implementation and results (through January 1 of the same year) of the 
JAX Range Complex Monitoring Plan described above. Data collection 
methods will be standardized across range complexes to allow for 
comparison in different geographic locations. Although additional 
information will also be gathered, the marine mammal observers (MMOs) 
collecting marine mammal data pursuant to the JAX Range Complex 
Monitoring Plan shall, at a minimum, provide the same marine mammal 
observation data required in major range complex training exercises 
section of the Annual JAX Range Complex Exercise Report referenced 
below.
    The JAX Range Complex Monitoring Plan Report may be provided to 
NMFS within a larger report that includes the required Monitoring Plan 
Reports from multiple Range Complexes.

Annual JAX Range Complex Exercise Report

    The Navy is in the process of improving the methods used to track 
explosives use to provide increased granularity. The Navy will provide 
the information described below for all of their explosive exercises. 
Until the Navy is able to report in full the information below, they 
will provide an annual update on the Navy's explosive tracking methods, 
including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the JAX Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.

JAX Range Complex 5-yr Comprehensive Report

    The Navy shall submit to NMFS a draft report that analyzes and 
summarizes all of the multi-year marine mammal information gathered 
during the JAX Range Complex exercises for which annual reports are 
required (Annual JAX Range Complex Exercise Reports and JAX Range 
Complex Monitoring Plan Reports). This report will be submitted at the 
end of the fourth year of the rule (May 2013), covering activities that 
have occurred through December 1, 2012.

Comments and Responses

    On December 17, 2008, NMFS published a proposed rule (73 FR 76578) 
in response to the Navy's request to take marine mammals incidental to 
military readiness training in the JAX Range Complex study area and 
requested comments, information and suggestions concerning the request. 
During the 30-day public comment period, NMFS received comments from 1 
private citizen, comments from the Marine Mammal Commission 
(Commission), comments from the International Fund for Animal Welfare 
(IFAW), and comments from the Natural Resources Defense Council (on 
behalf of itself, The Humane Society of the United States, Defenders of 
Wildlife, International Fund for Animal Welfare,

[[Page 28357]]

Whale and Dolphin Conservation Society, Cetacean Society International, 
Ocean Futures Society, and Jean-Michel Cousteau). The comments are 
summarized and sorted into general topic areas and are addressed below. 
Full copies of the comment letters may be accessed at https://www.regulations.gov.
    NMFS worked with the Navy to develop MMPA rules and LOAs for the 
JAX Range Complex. Many of the issues raised in the public comments for 
this rule were also raised for the VACAPES Range Complex rulemaking and 
NMFS considered many of the broader issues in the context of these two 
Navy actions when determining how to address the comments. To the 
extent necessary, the public may refer to the response to comments 
section in the VACAPES final rule (addressing similar issues identified 
in the JAX Range Complex final rule).

MMPA Concerns

    Comment 1: The Commission recommends that NMFS consult with the 
Navy regarding the possible need to expand the proposed authorization 
to include additional species that might be taken unexpectedly and a 
more realistic number of takes for species that occur in groups, 
including Clymene dolphins, pantropical spotted dolphins, pilot whales, 
and Risso's dolphins.
    Response: NMFS has consulted with the Navy regarding the 
possibility of additional species that might be taken unexpectedly and 
a more realistic number of takes for species that occur in groups. A 
more detailed analysis is provided in the Estimated Take of Marine 
Mammals section. These additional species include minke whale, common 
dolphin, pygmy/dwarf sperm whales, and several species of beaked 
whales.
    Comment 2: The Commission recommends that NMFS revise section 
218.11 of the proposed regulation to clarify that the authorized 
numbers of takes are annual limits that would be applicable over a 
five-year period.
    Response: NMFS has revised this section in the final rule to 
clarify that the authorized numbers of takes are annual limits that 
will be applicable over a five-year period.
    Comment 3: The IFAW states that it is concerned with the 
possibility of Navy ships striking North Atlantic right whales (NARW) 
in the JAX Range Complex Study Area, and states that NMFS mistakenly 
concludes that take permits are unnecessary despite the fact that the 
proposed exercise area overlaps right whale critical habitat. The IFAW 
observes that the mitigation measures described in the proposed rule 
represent a strong effort by the U.S. Navy and NMFS to mitigate 
potential harm to critically endangered NARW, but they do not 
accomplish that goal. The IFAW further states that the Navy has been 
involved in ship strikes in the past (specifically, a female NARW and 
her near-term calf in the mid-Atlantic in 2004).
    Response: NMFS appreciates the IFAW's concern regarding the 
possibility of Navy ships striking North Atlantic right whales and 
other marine mammal species in the JAX Range Complex Study Area but 
does not agree with the IFAW's assessment that NMFS mistakenly reached 
its conclusion that take of NARW is unlikely.
    Regarding ship strikes, the Navy's EIS concluded that based on the 
implementation of Navy mitigation measures, especially during times of 
anticipated NARW occurrence, and the relatively low density of Navy 
ships in the Study Area, the likelihood that a vessel strike would 
occur is very low. In addition to the standard operating procedures to 
reduce the likelihood of collisions, which include: (1) Use of lookouts 
trained to detect all objects on the surface of the water (including 
marine mammals); (2) a requirement to avoid the close interaction of 
Navy assets and marine mammals; and (3) maneuvering to keep away from 
any observed marine mammal, the Navy has issued extensive North 
Atlantic right whale protective measures for all Fleet Forces training 
activities. These measures, which were developed with input from NMFS, 
include additional training requirements, designated areas of caution 
(where caution includes speed or direction adjustments and avoidance of 
known groups of right whales when feasible) and additional reporting 
requirements. NMFS and the Navy believe that the required measures will 
allow the Navy to avoid colliding with large whales during their 
specified activities. The Navy neither requested, nor did NMFS grant, 
authorization for take of right whales from ship strikes incidental to 
the specified activities.
    Regarding the right whale strike in 2004, the commenter is most 
likely referring to an event that took place on November 17, 2004. On 
November 17 at about 10:30 a.m. a Navy amphibious assault ship struck a 
large whale off the Chesapeake Light House. A few hours later, around 
noon, a fisherman contacted the Virginia Aquarium stranding hotline and 
reported a live injured large whale with a fresh wound on the tail 
where the left fluke lobe was missing. On November 24, a dead right 
whale was necropsied at Ocean Sands, NC. The right whale was a pregnant 
female and the cause of death was determined to be blood loss owing to 
a traumatic wound to the left fluke lobe, which was missing, and damage 
to surrounding tissue and bone. The wound was consistent with that 
caused by a ship strike. Neither NMFS nor the Navy can confirm or deny 
that the dead right whale necropsied on November 24 was the same whale 
struck by the Navy on November 17.
    The USCG and Navy have standing orders to report sightings or 
collisions. Although the NMFS ship strike database reflects a 
disproportionately high number of ship strikes attributable to USCG and 
Navy vessels over the years, this is likely due to the high reporting 
rate by those agencies relative to other mariners and vessels, rather 
than a higher incidence of right whale ship strikes by Federal agency 
vessels. These two Federal agencies are actively involved in large 
whale protection programs and reporting struck or dead whales to NMFS 
is part of their standard operating procedures.
    Comment 4: Citing Nowacek et al. (2004) that North Atlantic right 
whales exposed to alarm stimuli ``abandoned their current foraging dive 
prematurely, * * * executed a shallow-angled, high power * * * ascent, 
remained at or near the surface'' for an ``abnormally long'' period of 
time, and ``spent significantly more time at subsurface depths (1-10 m) 
compared with normal surfacing periods when whales normally stay within 
1 m of the surface,'' the IFAW states that NARW calves are most 
vulnerable to impacts from collisions and noise from ships, 
helicopters, bombs and missiles. The IFAW further concludes that alarm 
stimuli were a poor option in attempts to mitigate vessel collisions 
because the whale's reaction actually makes ship strikes more likely. 
The IFAW also notes NMFS' previous conclusion on North Atlantic right 
whales that the ``