This administrative action is governed by the provisions of 5 U.S.C. 556 and 557 and, therefore, is excluded from the requirements of Executive Order 12866.

Notice is hereby given of a public hearing to be held at the 502 East Event Centre, 502 East Carmel Drive, Carmel, Indiana, beginning Wednesday, August 23, 2023, at 9:00 a.m. ET, with respect to proposed amendments to the orders regulating the handling of milk in the Northeast and other marketing areas.

The hearing is called pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674) (Act), and the applicable rules of practice and procedure governing amendments to marketing agreements and marketing orders (7 CFR part 900).

The purpose of the hearing is to receive evidence with respect to the economic and marketing conditions related to the proposed amendments, hereinafter set forth, and any appropriate modifications thereof to the marketing orders.

Actions under the FMMO program are subject to the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA). The RFA seeks to ensure that, within the statutory authority of a program, the regulatory and information collection requirements are tailored to the size and nature of small businesses. For the purpose of the RFA, a dairy farm is a “small business” if it has an annual gross revenue of $3.75 million or less, and a dairy products manufacturer is a “small business” if it has no more than the number of employees listed in the chart below (13 CFR 121.201):

Most parties subject to a FMMO are considered a small business. Accordingly, interested parties are invited to present evidence on the probable regulatory and informational impact of the hearing proposals on small businesses. Also, parties may suggest modifications of these proposals for the purpose of tailoring their applicability to small businesses.

The amendments to the rules proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have a retroactive effect.

The Agricultural Marketing Service (AMS) is committed to complying with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under sec. 8c(15)(A) of the Act, any handler subject to an order may request modification or exemption from such order by filing with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with the law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, the USDA would rule on the petition. The Act provides that the United States District Court in any district in which the handler is an inhabitant or has its principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an appeal is filed not later than 20 days after the ruling is issued.

Each witness will have 60 minutes to present their testimony and have direct examination. If a witness's prepared testimony and direct examination would be expected to exceed 60 minutes, the witness should submit in advance a written prepared statement as an exhibit and present a summary of that statement during their allotted time. This summary does not need to be submitted in advance, but paper copies should be provided the day of submission in accordance with the exhibit guidelines outlined below, if the summary is in written form. The full written prepared statement should be submitted as an exhibit in advance of testifying according to the Exhibit Submission Schedule found on the Hearing website. There will be no time limit on cross-examination or re-direct.

Dairy farmers may testify in person at any time during the hearing, or virtually via Zoom on Fridays. Starting Friday, September 1, 2023, and each Friday thereafter during the hearing, beginning at 12:00 p.m. ET, ten (10) time slots will be available for dairy farmers to testify virtually. Dairy farmers must pre-register to testify virtually, as outlined in the instructions provided on the Hearing website. Each registered dairy farmer will be allocated up to 15 minutes to present testimony. Additional time may be requested. There will be no time limit on cross-examination. Dairy farmers testifying, either in person or virtually, are not required to pre-submit testimony or exhibits.

Any party with a proposal noticed herein, when participating as a witness, must enter exhibits related to testimony in advance, according to an Exhibit Submission Schedule posted on the Hearing website. Prepared exhibits must be submitted electronically to FMMOHearing@usda.gov. Submitted exhibits will be posted online within 2 business days following the submission deadline. Fifteen (15) paper copies of each exhibit submitted in advance should also be submitted at the hearing to the designated USDA official. Four of the 15 copies will be submitted to the Administrative Law Judge for the Official Record, and the remaining copies will be distributed to USDA staff.

Interested parties entering exhibits during the hearing, not in advance, must provide 15 paper copies to the designated USDA official, plus additional paper copies for distribution to other hearing participants and interested parties. In order to submit exhibits into the record, exhibits should be sent to FMMOHearing@usda.gov by 8:00 a.m. ET on the day of scheduled testimony.

All exhibits should be prenumbered in the following format: “[Submitter Name or Acronym]—Number” on the top righthand corner of each page. For example, “USDA-1.” Each exhibit must include a page number “X of Y” on the bottom righthand corner. For example, “1 of 100.” Each exhibit will be given an Official Exhibit Number upon presentation.

Individual dairy farmers are not subject to the Exhibit Guidelines.

Interested parties requesting USDA data to be used at the hearing must submit requests via FMMOHearing@usda.gov by August 11, 2023.

The hearing will continue until such time as determined to have ended by the presiding Administrative Law Judge. The hearing will be in recess and will not convene on September 4, 2023, for the Labor Day holiday or on September 21-22, 2023. If necessary, in addition to the dates listed, the schedule for the next session will be announced at the time of adjournment. Such reconvening date and time will also be posted on the Hearing website.

Testimony is invited on the following proposals or appropriate modifications to such proposals. Proposed regulatory text may be found in a supplemental document on the Hearing website.

Testimony will be heard by subject area, in the following order:

This proposal seeks to amend the milk component factors in the Class III and Class IV skim milk price formulas. Specifically, the proposal seeks to increase the skim component factors to equal the weighted average nonfat solids, true protein, and other solids factors for milk pooled on Federal orders using data for the three years prior to implementation, with a 12-month implementation lag. The factors are proposed to be updated as follows:

• Nonfat solids: from 9.0 to 9.41 per hundredweight of Class IV skim milk;

• Protein: from 3.1 to 3.39 per hundredweight of Class III skim milk; and

• Other solids: from 5.9 to 6.02 per hundredweight of Class III skim milk.

The proponent also proposes the skim component factors be updated no less than every three years, but only once the weighted average nonfat solids component for the prior three years changes by at least 0.07 percentage points. The updated component values would be calculated, and, if a change is warranted, formally announced in February of such year, with the implementation of such changes occurring March 1 of the following year.

This proposal seeks to amend the milk component factors in the Class III and Class IV skim milk price formulas. The proposal seeks to update the factors annually using the previous year's weighted average calculations, with a 12-month implementation lag.

This proposal seeks to eliminate the Cheddar cheese 500-pound barrel price series from protein price formula.

This proposal seeks to add 640-pound Cheddar cheese blocks to the protein price formula.

This proposal seeks to add unsalted butter to the butterfat and protein price formulas.

This proposal seeks to add mozzarella to the protein price formula.

This proposal seeks to amend the manufacturing cost (make) allowances found in the four component price formulas. The proposal includes the following increases:

Butterfat: from $0.1715 to $0.2100 per pound of butter,

Nonfat solids: from $0.1678 to $0.2100 per pound of nonfat dry milk (NFDM),

Protein: from $0.2003 to $0.2400 per pound of Cheddar cheese,

Other solids: from $0.1991 to $0.2300 per pound of dry whey.

The requested changes are equivalent to an increase of $0.0385 per pound in the butter make allowance, an increase of $0.0422 per pound in the nonfat dry milk make allowance, an increase of $0.0397 per pound in the Cheddar cheese make allowance, and an increase of $0.0309 per pound in the dry whey make allowance.

This proposal seeks to update the current make allowances with a 4-year phase-in implementation schedule.

This proposal also proposes not to adopt any of the increases described above if, prior to January 1 of that year, USDA has been provided authority and funding to conduct audited dairy product cost studies of all manufacturers of products used to set Class III and Class IV prices, has promulgated regulations implementing that authority, and has adopted make allowances pursuant thereto.

This proposal seeks to update the current make allowances with a 4-year phase-in implementation schedule.

This proposal also proposes not to adopt any of the increases described above if, prior to January 1 of that year, USDA has been provided authority and funding to conduct audited dairy product cost studies of all manufacturers of products used to set Class III and Class IV prices, has promulgated regulations implementing that authority, and has adopted make allowances pursuant thereto.

This proposal seeks to increase the butterfat recovery factor in the Class III price formula to 93 percent, which would necessitate a corresponding increase in the butterfat yield in cheese to 1.624.

This proposal seeks to update the specified yield factors to reflect actual farm-to-plant shrink. The yield factors for nonfat solids and other solids would remain unchanged. The proposed yield factors are:

Butterfat: 1.22;

Protein value in cheese: 1.386; and

Butterfat value in cheese: 1.582.

This proposal seeks to update the nonfat solids factor from 0.99 to 1.03.

This proposal seeks to amend the base Class I skim milk price in all Federal orders. Specifically, the proposal seeks to replace the simple average of the Class III and Class IV Advanced Skim Milk pricing factors with the “higher of” the two factors and remove the additional $0.74 per hundredweight.

This proposal seeks to amend the base Class I skim milk price to equal the simple average of the Advanced Class III and Class IV prices, plus the “higher of” either $0.74 or an adjustor equal to the 24-month (August-July) rolling simple average difference between the Advanced Class III and Class IV skim milk prices.

This proposal seeks to retain the current “average of” formula for the base Class I skim milk price and proposes to update the adjuster monthly using a 24-month look back period with a 12-month lag, i.e., the preceding the 13-to-36-month period. The “rolling” adjuster calculation would be the difference between the “higher of” the advanced Class III or IV skim milk price for each month and the “average of” the advanced Class III or IV skim milk price, averaged over the preceding 13-to-36-month period, plus the “average of” the Class III and IV advanced skim milk prices for that month.

This proposal seeks to change the base Class I skim milk price to the announced Class III skim milk price, plus an adjuster. The proposal seeks to amend calculation of Class I prices to use announced rather than advanced prices. The proposed adjuster would be a 36-month average (August-July) of the monthly differences between the “higher of” the advanced Class III skim milk price or advanced Class IV skim milk price, and the Class III skim milk price.

This proposal seeks to use the “higher of” the Class III skim milk price or the Class IV skim milk price to calculate the base Class I skim milk price. The proposal also seeks to amend calculation of Class I prices to use announced rather than advanced prices.

This proposal seeks to eliminate the advanced pricing of Class I milk and components, and Class II skim milk and components. As proposed, the Class II skim milk price would be equal to the Announced Class IV skim milk price plus the Class II differential; the Class II nonfat solids price would be equal to the Announced Class IV nonfat solids price plus one-hundredth of the Class II differential. The proponent proposes the Class I skim milk price would be the “higher of” the Announced Class III or Class IV skim milk prices plus the Class I differential; and the Class I butterfat price would be equal to the butterfat price plus one-hundredth of the Class I differential.

This proposal seeks to update the Adjusted Class I differentials as referenced in all Federal orders for the 3,108 named counties, parishes, and independent cities in the contiguous 48 United States. The proposed update would increase Class I differentials at all locations, in varying amounts.

This proposal seeks to lower the current base Class I differential from $1.60 to $0.00.

This proposal seeks to update the Class II differential to $1.56. Specifically, the proposal seeks to calculate the Class II differential using the current nonfat dry milk make allowance multiplied by the current nonfat solids yield factor and updated butterfat and nonfat solids tests for milk in the FMMOs.

Make such changes as may be necessary to make the respective marketing orders conform with any amendments thereto that may result from this hearing.

From the time that a hearing notice is issued and until the issuance of a final decision in a proceeding, USDA employees involved in the decision-making process are prohibited from discussing the merits of the hearing issues on an ex parte basis with any person having an interest in the proceeding. For this proceeding, the prohibition applies to employees in the following organizational units:

Procedural matters are not subject to the above prohibition and may be discussed at any time.

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1413; Project Identifier AD-2023-00087-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Bill Ashforth, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3520; email: bill.ashforth@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA has received reports indicating cracks in the forward galley door cutout forward upper corner bear strap. The airplanes had accumulated between 33,070 and 44,224 total flight cycles at the time of the crack findings. The cracks were caused by high operating stresses in the fuselage skin door cutout corner area due to stress concentration at the door cutout. This condition, if not addressed, could result in an undetected crack in the fuselage skin and bear strap, and could increase in length until the fuselage skin and bear strap severs. If not detected and corrected, a severed fuselage skin and bear strap may lead to the inability to sustain limit loads and may result in rapid decompression of the fuselage and loss of structural integrity of the aircraft.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing Alert Requirements Bulletin 737-53A1407 RB, dated December 20, 2022. This service information specifies procedures for an external general visual inspection of the fuselage skin at the forward galley door cutout forward upper corner for any repair, and applicable related investigative and corrective actions. Related investigative actions include detailed inspections for cracking of the fuselage skin and bear strap. Corrective actions include obtaining and following instructions for crack repair.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require accomplishing the actions specified in the service information already described and except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures and compliance times, see this service information at regulations.gov under Docket No. FAA-2023-1413.

The FAA estimates that this AD, if adopted as proposed, would affect 1,938 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs or for the alternative inspections specified in this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1053; Project Identifier AD-2023-00164-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Wayne Ha, Aviation Safety Engineer, Continued Operational Safety Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: 562-627-5238; email: wayne.ha@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA has received a report indicating that cracking has occurred in the frame splice doubler and may occur in the upper frame at the upper frame splice between stringer S-13 and S-14 on Boeing Model 737-300, -400, and -500 airplanes at multiple frame locations. The FAA issued AD 2021-26- 03, Amendment 29-21861 (87 FR 2534, January 18, 2022) to address the unsafe condition on Boeing Model 737-300, -400, and -500 airplanes. Since Boeing Model 757-200, -200CB, and -200PF series airplanes have a similar design, Boeing conducted a cross model evaluation and crack growth analysis on these airplane models. The analysis indicated that current Maintenance Planning Data (MPD) and Supplemental Structural Inspection Program (SSIP) tasks do not provide adequate inspections to detect cracks before a single frame fails. The single frame failure criteria is needed because of the potential interaction between cracks in the upper frame at the frame splice between S-13 and S-14 and known fuselage skin cracking at the S-14 lap splice in the affected 757 airplanes. This condition, if not addressed, could result in the inability of principal structural element to sustain limit loads and could adversely affect the structural integrity of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing Alert Requirements Bulletin 757-53A0115 RB, dated January 25, 2022. This service information specifies procedures for a general visual inspection (GVI) or records review between stringers S-13 and S-14 in Sections 43 and 46 for existing repairs. This service information also describes procedures, depending on the configuration, for repetitive high frequency eddy current (HFEC) and low frequency eddy current (LFEC) inspections for cracking of the upper frames at the frame splices between stringers S-13 and S-14, left- and right-hand sides, in Sections 43 and 46; and applicable on-condition actions. On-condition actions include repair.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require accomplishing the actions specified in the service information already described except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures and compliance times, see this service information at regulations.gov under Docket No. FAA-2023-1053.

The FAA estimates that this AD, if adopted as proposed, would affect 456 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Would not affect intrastate aviation in Alaska, and

(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1216; Project Identifier AD-2023-00502-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Mehdi Lamnyi, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA was notified by the manufacturer of the detection of iron inclusion in three non-LEAP-1B HPT rotor disks. Further investigation by the manufacturer determined that the iron inclusion is attributed to deficiencies in the manufacturing process. The investigation by the manufacturer also determined that certain LEAP-1B HPT stage 1 disks and a certain compressor rotor stages 6-10 spool manufactured using the same process may have reduced material properties and a lower fatigue life capability due to iron inclusion, which may cause premature fracture and subsequent uncontained failure of certain HPT stage 1 disks and a certain compressor rotor stages 6-10 spool. This condition, if not addressed, could result in uncontained debris release, damage to the engine, and damage to the aircraft.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed CFM Service Bulletin LEAP-1B-72-00-0392-01A-930A-D, Issue 001, dated March 7, 2023. This service information identifies the part numbers and serial numbers of HPT stage 1 disks and a compressor rotor stages 6-10 spool with potentially reduced material properties and specifies procedures for replacement of these parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require replacement of certain HPT stage 1 disks and a certain compressor rotor stages 6-10 spool. This proposed AD would also prohibit installation of an HPT stage 1 disk or compressor rotor stages 6-10 spool that has a part number and serial number identified in the service information onto any engine.

The FAA estimates that this AD, if adopted as proposed, would affect 39 engines installed on airplanes of U.S. registry. These 39 engines would require replacement of the HPT stage 1 disk. The FAA estimates that there are no engines installed on airplanes of U.S. registry that would require replacement of the compressor rotor stages 6-10 spool.

The FAA estimates the following costs to comply with this proposed AD:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

On February 8, 2023, Powerboat P1 USA notified the Coast Guard that was planning on hosting the Mercury Racing Midwest Challenge in Sheboygan, WI from August 11 to August 13, 2023. The race event will take place in two locations in and near the Sheboygan Harbor. The Captain of the Port Sector Lake Michigan (COTP) has determined that potential hazards associated with the boat races would be a safety concern for anyone within the two designated race areas.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within and near the two race areas before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231).]

The COTP is proposing to establish two safety zones from 8 a.m. on August 11 to 6:30 p.m. on August 13, 2023. One of the safety zones would be located off shore of Sheboygan, WI and would cover all navigable waters within the offshore course located within the following coordinates: NW corner 43°44′54.32″ N, 87°42′5.77″ W, NE corner 43°44′54.10″ N, 87°41′3.21″ W, SW corner 43°42′27.10″ N, 87°42′10.11″ W, SE corner 43°42′26.73″ N, 87°40′54.66″ W. The other safety zone would be located in a triangular area within Sheboygan Harbor and would cover all navigable waters within the following coordinates: 43°44′56.76″ N, 87°41′05.60″ W, 43°45′07.29″ N, 87°41′51.07″ W, 43°44′57.24″ N, 87°42′05.24″ W. The duration of the zones is intended to protect personnel, vessels, and the marine environment in these navigable waters during the race events. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zones. The safety zones created by this proposed rule will impact a small part of the waterway and is designed to minimize its impact on navigable waters. This proposed rule will prohibit entry into certain navigable waters of Lake Michigan and Sheboygan Harbor near in Sheboygan, WI and it is not anticipated to exceed 3 days in duration. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP Lake Michigan.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zones may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government. We have analyzed this proposed rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is 1 of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves two safety zones lasting for 3 days that prohibit entry within the designated race areas. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2023-0490 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using https://www.regulations.gov, call or email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

Table 1 lists the rules addressed by this proposal, including the dates on which they were adopted by the District and the date on which they were submitted to the EPA by the California Air Resources Board (CARB), which is the governor's designee for California SIP submittals.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On July 8, 2022, IEPA submitted a request to EPA to incorporate revisions to the Illinois air pollution control rules in Title 35 of the Illinois Administrative Code, Part 243—Air Quality Standards. The submission updates sections 243.108 and 243.122. Part 243 includes Illinois' adoption of ambient air quality standards related to the NAAQS.

Illinois revised Part 243 to reflect amendments to EPA's “List of Designated References and Equivalent Methods” used to determine compliance with the NAAQS (fine particulate matter (PM 2.5 ) and coarse particulate matter (PM 10 ), SO 2 , carbon monoxide (CO), lead (Pb), oxides of nitrogen (NO X ), and ozone (O 3 )). In addition to these changes, Illinois updated existing rule language to address EPA's revocation of the 1971 primary, 24-hour, and annual average NAAQS for SO 2 .

Other revisions to Part 243 include a range of administrative changes, such as making grammatical corrections, removing the unnecessary version date from the Code of Federal Regulations (CFR) citations, and updating the CFR citations to the latest version available.

EPA is proposing to approve the revisions to Part 243 which are described below:

Section 243.108 Incorporation by Reference —incorporates by reference EPA's “List of Designated Reference and Equivalent Methods” for measuring ambient concentrations to demonstrate compliance with the NAAQS (PM 2.5 and PM 10 , SO 2 , CO, Pb, NO X , and O 3 ).

EPA designated one new Federal reference monitoring method on March 4, 2021 (86 FR 12682) for SO 2 in ambient air. On December 15, 2021, EPA updated the “List of Designated Reference and Equivalent Methods” to include the new Federal reference monitoring method for SO 2 . The proposed SIP revision would update section 243.108 to incorporate the changes based on EPA's action dated December 15, 2021.

Section 243.122 Sulfur Oxides (Sulfur Dioxide) —the sulfur oxide (as SO 2 ) primary and secondary standards and measurement methods, respectively, in subsections 243.122(a) and (b). EPA removed the 1971 primary, 24 hour, and annual standard on April 30, 2022. IEPA has removed (subsection 243.122(a) to be consistent with EPA's actions. IEPA has updated its SO 2 standard (section 243.122) to reflect updates at the Federal level.

EPA is proposing to approve the revisions to Part 243 discussed above because the revisions meet all applicable requirements under section 110(k)(3) the Clean Air Act (CAA). Furthermore, Illinois has shown that the revisions to Part 243 do not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable CAA requirement, consistent with section 110(l) of the CAA.

Under section 110(l) of the CAA, EPA shall not approve a SIP revision if it would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171 of the CAA) or any other applicable requirement of the CAA. The proposed SIP revision would not interfere with any applicable CAA requirements based on technical analysis submitted by Illinois. Part 243 contains the state's ambient air quality standards, which are now consistent with the NAAQS. The changes to the ambient air quality standards in Part 243 rules will have no effect on actual or allowable emissions as they only update references to the NAAQS in the Illinois SIP. Illinois has shown there is no impact of revising Part 243 that would hinder Illinois' ability to maintain and meet the NAAQS for NO 2 , O 3 , Pb, PM 2.5 , PM 10 , SO 2 , and CO. Therefore, these revisions to sections 243.108 and 243.122 are approvable as they update sections 243.108 and 243.122 to be consistent with EPA's promulgated NAAQS. The revisions will not increase any emissions to the atmosphere because they do not impact on any source applicability or emissions.

EPA is proposing to approve a revision to the Illinois SIP. The submittal updates revisions to the Illinois regulations at Title 35 of the Illinois Administrative Code, Part 243—Air Quality Standards (Part 243). Specifically, the updates made to the following rules in Part 243: Sections 243.108 and 243.122 to be “identical in substance” to and consistent with updates to the list of designated Federal equivalent and reference methods and updates to the NAAQS adopted by EPA. IEPA's revisions mirror EPA's reference method for the 2010 1-hour SO 2 standard. IEPA removed the 1971 primary, 24 hour and annual SO 2 standard reflecting EPA's action at the Federal level.

In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Illinois rules 243.108 and 243.122, effective May 18, 2022, discussed in section II of this preamble. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rulemaking does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

IEPA did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

In the Final Rules section of this Federal Register , EPA is approving the state's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register .

Participation in virtual public hearing. To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the hearing will be held via virtual platform on August 8, 2023. The hearing will convene at 11 a.m. Eastern Time (ET) and will conclude at 3 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/primary-copper-smelting-national-emissions-standards-hazardous-air.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing no later than 1 business day after a request has been received. To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/primary-copper-smelting-national-emissions-standards-hazardous-air or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be August 7, 2023. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers in approximate order at: https://www.epa.gov/stationary-sources-air-pollution/primary-copper-smelting-national-emissions-standards-hazardous-air.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.

Each commenter will have 4 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to dawson.tonisha@epa.gov. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution/primary-copper-smelting-national-emissions-standards-hazardous-air. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by July 31, 2023. The EPA may not be able to arrange accommodations without advanced notice.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2020-0430. All documents in the docket are listed in https://www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov .

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2020-0430. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically to https://www.regulations.gov/ any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed below.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket ID, mark the outside of the digital storage media as CBI, and identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in Instructions above. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI and note the docket ID. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office at the email address oaqpscbi@epa.gov, and as described above, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2020-0430. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.

Preamble acronyms and abbreviations. Throughout this preamble the use of “we,” “us,” or “our” is intended to refer to the EPA. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Organization of this document. The information in this preamble is organized as follows:

The source category that is the subject of this proposal is primary copper smelting major sources regulated under 40 CFR part 63, subpart QQQ. The North American Industry Classification System (NAICS) code for the primary copper smelting industry is 331410. This list of categories and NAICS codes is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this proposed action is likely to affect. The proposed standards, once promulgated, will be directly applicable to the affected sources. Federal, state, local, and tribal government entities would not be affected by this proposed action. As defined in the Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990 (see 57 FR 31576; July 16, 1992) and Documentation for Developing the Initial Source Category List, Final Report ( see EPA-450/3-91-030, July 1992), the primary copper smelting source category is any major source facility engaged in the pyrometallurgical process used for the extraction of copper from sulfur oxides, native ore concentrates, or other copper bearing minerals. As originally defined, the category includes, but is not limited to, the following smelting process units: roasters, smelting furnaces, and converters. Affected sources under the current major source NESHAP are concentrate dryers, smelting furnaces, slag cleaning vessels, converters, and fugitive emission sources.

In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/stationary-sources-air-pollution/primary-copper-smelting-national-emissions-standards-hazardous-air. Following publication in the Federal Register , the EPA will post the Federal Register version of the proposal and key technical documents at this same website.

A memorandum showing the rule edits that would be necessary to incorporate the changes to 40 CFR part 63, subpart QQQ proposed in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2020-0430). The EPA also will post a copy of this document to https://www.epa.gov/stationary-sources-air-pollution/primary-copper-smelting-national-emissions-standards-hazardous-air.

The statutory authority for this action is provided by sections 112 and 301 of the Clean Air Act (CAA), as amended (42 U.S.C. 7401 et seq. ). Section 112 of the CAA establishes a two-stage regulatory process to develop standards for emissions of HAP from stationary sources. Generally, the first stage involves establishing technology-based standards and the second stage involves evaluating those standards that are based on maximum achievable control technology (MACT) to determine whether additional standards are needed to address any remaining risk associated with HAP emissions. This second stage is commonly referred to as the “residual risk review.” In addition to the residual risk review, the CAA also requires the EPA to review standards set under CAA section 112 every 8 years and revise the standards as necessary taking into account any “developments in practices, processes, or control technologies.” This review is commonly referred to as the “technology review.” The discussion that follows identifies the most relevant statutory sections and briefly explains the contours of the methodology used to implement these statutory requirements. A more comprehensive discussion appears in the document titled CAA Section 112 Risk and Technology Reviews: Statutory Authority and Methodology, in the docket for this rulemaking.

In the first stage of the CAA section 112 standard setting process, the EPA promulgates technology-based standards under CAA section 112(d) for categories of sources identified as emitting one or more of the HAP listed in CAA section 112(b). Sources of HAP emissions are either major sources or area sources, and CAA section 112 establishes different requirements for major source standards and area source standards. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, CAA section 112(d)(2) provides that the technology-based NESHAP must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). These standards are commonly referred to as MACT standards. CAA section 112(d)(3) also establishes a minimum control level for MACT standards, known as the MACT “floor.” In certain instances, as provided in CAA section 112(h), the EPA may set work practice standards in lieu of numerical emission standards. The EPA must also consider control options that are more stringent than the floor. Standards more stringent than the floor are commonly referred to as beyond-the-floor (BTF) standards. For area sources, CAA section 112(d)(5) allows the EPA to set standards based on generally available control technologies or management practices (GACT standards) in lieu of MACT standards.

The second stage in standard-setting focuses on identifying and addressing any remaining ( i.e., “residual”) risk pursuant to CAA section 112(f). For source categories subject to MACT standards, section 112(f)(2) of the CAA requires the EPA to determine whether promulgation of additional standards is needed to provide an ample margin of safety to protect public health or to prevent an adverse environmental effect. Section 112(d)(5) of the CAA provides that this residual risk review is not required for categories of area sources subject to GACT standards. Section 112(f)(2)(B) of the CAA further expressly preserves the EPA's use of the two-step approach for developing standards to address any residual risk and the Agency's interpretation of “ample margin of safety” developed in the National Emissions Standards for Hazardous Air Pollutants: Benzene Emissions from Maleic Anhydride Plants, Ethylbenzene/Styrene Plants, Benzene Storage Vessels, Benzene Equipment Leaks, and Coke By-Product Recovery Plants (Benzene NESHAP) (54 FR 38044; September 14, 1989). The EPA notified Congress in the Residual Risk Report that the Agency intended to use the Benzene NESHAP approach in making CAA section 112(f) residual risk determinations (EPA-453/R-99-001, p. ES-11). The EPA subsequently adopted this approach in its residual risk determinations, and the United States Court of Appeals for the District of Columbia Circuit upheld the EPA's interpretation that CAA section 112(f)(2) incorporates the approach established in the Benzene NESHAP. See NRDC v. EPA, 529 F.3d 1077, 1083 (D.C. Cir. 2008).

The approach incorporated into the CAA and used by the EPA to evaluate residual risk and to develop standards under CAA section 112(f)(2) is a two-step approach. In the first step, the EPA determines whether risks are acceptable. This determination “considers all health information, including risk estimation uncertainty, and includes a presumptive limit on maximum individual lifetime [cancer] risk (MIR)  1 of approximately 1-in-10 thousand.” (54 FR at 38045). If risk is unacceptable, the EPA must determine the emissions standards necessary to reduce risks to an acceptable level without considering costs. In the second step of the approach, the EPA considers whether the emissions standards provide an ample margin of safety to protect public health “in consideration of all health information, including the number of persons at risk levels higher than approximately 1-in-1 million, as well as other relevant factors, including costs and economic impacts, technological feasibility, and other factors relevant to each particular decision.” Id. The EPA must promulgate emission standards necessary to provide an ample margin of safety to protect public health or determine that the standards being reviewed provide an ample margin of safety without any revisions. After conducting the ample margin of safety analysis, the Agency considers whether a more stringent standard is necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect.

CAA section 112(d)(6) separately requires the EPA to review standards promulgated under CAA section 112 and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years. While conducting this review, which we call the “technology review,” the EPA is not required to recalculate the MACT floor. Natural Resources Defense Council (NRDC) v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008). Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C. Cir. 2013). The EPA may consider cost in deciding whether to revise the standards pursuant to CAA section 112(d)(6). The EPA is also required to address regulatory gaps, such as missing standards for listed air toxics known to be emitted from the source category, and any new MACT standards must be established under CAA sections 112(d)(2) and (3), or, in specific circumstances, CAA sections 112(d)(4) or (h). Louisiana Environmental Action Network (LEAN) v. EPA, 955 F.3d 1088 (D.C. Cir. 2020).

As described in detail in section III of this preamble, pursuant to the authorities described above in this section, this supplemental proposed rule addresses additional currently unregulated emissions of HAP from the primary copper smelting major source category. In addition to the unregulated HAP addressed in the 2022 RTR proposed rule (87 FR 1616; January 11, 2022), available data indicate the following unregulated pollutants are emitted from the source category: benzene, dioxins and furans, HCl, chlorine, PAH including naphthalene, and toluene. These pollutants are mainly emitted due to the combustion of natural gas and coke. Therefore, the EPA is proposing amendments establishing standards that reflect MACT for these pollutants emitted by the source category, pursuant to CAA sections 112(d)(2) and (3).

Consistent with the description in section II.A. of this preamble, this supplemental proposal is applicable to major sources in the primary copper smelting major source category. There is one area source which is regulated by the primary copper smelting area source NESHAP (40 CFR part 63, subpart EEEEEE), but the following description is limited to the major source facilities consistent with this supplemental proposed rule. The primary copper smelting major source category includes any facility that is a major source of HAP and uses a pyrometallurgical process to produce anode copper from copper ore concentrates. Primary copper smelting begins with copper mines supplying the ore concentrate (typically 30 percent copper). In most cases, the moisture is reduced from the ore concentrate in dryers, and the concentrate is then fed through a smelting furnace where it is melted and reacts to produce copper matte. One existing smelter is able to feed its copper concentrate directly to the smelting furnace without prior drying. Copper matte is a molten solution of copper sulfide mixed with iron sulfide and is about 60 percent copper. The solution is further refined using converters to make blister copper, which is approximately 98 percent copper. Converters use oxidation to remove sulfide as sulfur dioxide (SO 2 ) gas and the iron as a ferrous oxide slag. The majority of the SO 2 gases are sent to a sulfuric acid plant. The slag is removed, cooled, and often processed again to remove any residual copper. The blister copper is reduced in the anode refining furnace to remove impurities and oxygen, typically by injecting natural gas and steam, to produce a high purity copper. The molten copper from the anode refining furnace is poured into molds and cooled to produce solid copper ingots called anodes. This process is known as casting. The anodes are sent to a copper refinery, either on-site or at an off-site location, for further purification using an electrolytic process to obtain high purity copper that is sold as a product. The processing units of interest at primary copper smelters, because of their potential to generate HAP emissions, are the following: dryers, smelting furnaces, copper converters, anode refining furnaces, and, if present, copper holding vessels, slag cleaning vessels, and matte drying and grinding plants. The smelting furnaces, converters and anode refining are sources of HAP emissions from point sources ( i.e., stacks, control devices) and process fugitive emissions from roof vents. In addition, the transfers of matte, converter slag, and blister copper are sources of process fugitive emissions.

There are two facilities (Asarco and Freeport—both located in Arizona) which are major sources of HAP emissions and are subject to 40 CFR part 63, subpart QQQ, the major source NESHAP. The Asarco facility uses an INCO brand flash smelting furnace. Flash smelting furnaces consist of blowing fine, dried copper sulfide concentrate and silica flux with air, oxygen-enriched air or oxygen into a hot hearth-type furnace. The sulfide minerals in the concentrate react with oxygen resulting in oxidation of the iron and sulfur, which produces heat and therefore melting of the solids. The molten matte and slag are removed separately from the furnace as they accumulate, and the matte is transferred via ladles to the copper converters. The Freeport facility uses an ISASMELT smelting furnace. The ISASMELT process involves dropping wet feed through a feed port, such that dryers are not needed. A mixture of air, oxygen, and natural gas is blown through a vertical lance in the center of the furnace, generating heat and melting the feed. The molten metal is then tapped from the bottom and sent to an electric furnace to separate the matte from slag. The slag is removed from the electric furnace through tapholes and is transferred to slag pots via ladles. The matte is also removed from the electric furnace through tapholes and transferred to the converter via ladles.

Molten blister copper is transferred from the converting vessel to an anode furnace for refining to further remove residual impurities and oxygen. The blister copper is reduced in the anode refining furnace to remove oxygen, typically by injecting natural gas and steam to produce a high purity copper. The molten copper from the anode refining furnace is poured into molds to produce solid copper ingots called anodes. The anode copper is sent to a copper refinery, either on-site or at another location, where it is further purified using an electrolytic process to obtain the high purity copper that is sold as a product. The copper refinery is not part of the primary copper smelting source category. The current NESHAP for major sources (40 CFR part 63, subpart QQQ) was proposed on April 20, 1998 (63 FR 19582), with a supplement to the proposed rulemaking published on June 26, 2000 (65 FR 39326). The final rule, promulgated on June 12, 2002 (67 FR 40478), established particulate matter (PM) standards as a surrogate for HAP metals for copper concentrate dryers, smelting furnaces, slag cleaning vessels, and existing converters. The major source NESHAP applies to major sources that use batch copper converters. Regarding new sources, the NESHAP prohibits batch converters for new sources, which indirectly means that any new source would need to install continuous converters or another technology. The reason for this prohibition for new sources is that continuous converters have lower process fugitive emissions than batch converters. Further explanation is provided in the 2002 NESHAP final rule preamble (67 FR 40478; June 12, 2002).

The converter building is subject to an opacity limit in the NESHAP that only applies during performance testing. A fugitive dust plan is required to minimize fugitive dust emissions. Subpart QQQ also establishes requirements to demonstrate initial and continuous compliance with all applicable emission limitations, work practice standards, and operation and maintenance requirements. Annual performance testing is required to demonstrate compliance with the PM and opacity standards contained in the current NESHAP.

On January 11, 2022, the EPA proposed the risk and technology review required by CAA sections 112(d)(6) and 112(f)(2) for the NESHAP for Copper Smelting (hereafter referred to as the “2022 proposed RTR”). 2 Since the issuance of the 2022 proposed RTR, the EPA has obtained additional information that impacts the decisions made for certain amendments in the 2022 proposed RTR and that indicates there are additional unregulated HAP for the source category. Therefore, based on this new information, the EPA is proposing supplemental amendments to the NESHAP to ensure that all emissions of HAP from sources in the source category are regulated. Additionally, based on this new information and as described in more detail in section III of this preamble, we are proposing revised standards for certain amendments that were initially included in the 2022 proposed RTR for the copper smelting major source category.

Consistent with the statutory requirements described in section II.A of this preamble, the 2022 proposed RTR included a risk review pursuant to CAA section 112(f)(2) and a technology review pursuant to CAA section 112(d)(6) for the major source category. Additionally, the Agency reviewed available data to determine whether there were any unregulated emissions of HAP within the source category and evaluated the data for use in developing new emission standards.

As described in the 2022 proposed RTR, as part of the technology review for the major source category, the EPA identified previously unregulated processes and pollutants and proposed to regulate them under CAA section 112(d)(2) and (3) for the major source NESHAP (40 CFR part 63, subpart QQQ), as follows:

• PM limits, as a surrogate for metal HAP, for anode refining point sources at existing and new sources.

• PM limits, as a surrogate for metal HAP, for process fugitive emissions from roofline vents of smelting furnaces at existing and new sources.

• PM limits, as a surrogate for metal HAP, for process fugitive emissions from converters at existing and new sources.

• PM limits, as a surrogate for metal HAP, for process fugitive emissions from roof vents at anode refining operations at existing and new sources.

• Mercury limits for any existing and new combination of stacks or other vents from the copper concentrate dryers, converting department, the anode refining department, and the smelting vessels affected sources.

• PM limits, as a surrogate for metal HAP, for new converters.

The Agency also completed a review of residual risk for the source category consistent with CAA section 112(f). Based on the results of the risk review, the EPA proposed that risks from emissions of air toxics from the major source category were unacceptable due to HAP metal (primarily lead and arsenic) emissions. The largest contributor to risk was the process fugitive emissions from roof vents at anode refining operations (constituting about 71 percent of the MIR) followed by the aisle scrubber (constituting about 23 percent of the MIR) at the Freeport facility. In the 2022 proposed RTR, the EPA concluded that the emission limits proposed under CAA section 112(d)(2) and (3) for the process fugitive emissions from roof vents at anode refining operations will require additional controls that are expected to provide enough emissions reduction to reduce risks to an acceptable level; therefore, they were also proposed pursuant to CAA section 112(f)(2). The Agency also considered proposing additional control requirements for the aisle scrubber as part of the Agency's ample margin of safety analysis. The EPA did not propose any control requirements for the aisle scrubber in the 2022 proposed RTR but did seek comment on its analysis (including the costs, costs effectiveness, and risk reductions) and whether the EPA should establish more stringent standards to reduce HAP metal emissions from the aisle scrubber. Also, as part of the ample margin of safety analysis, the EPA evaluated additional work practices to reduce fugitive dust emissions, consistent with Asarco's current consent decree. The Agency found that the implementation of a more robust fugitive dust plan would result in an unquantified reduction of HAP, at minimal cost for implementation, and therefore proposed this requirement in the 2022 proposed RTR. In the 2022 proposed RTR, the EPA proposed that the combination of the standards for anode refining roof vents, fugitive dust plan and all other current standards in the NESHAP would ensure the NESHAP provides an ample margin of safety to protect public health.

The EPA did not identify developments in practices, processes, or control technologies pursuant to CAA section 112(d)(6) to achieve further emissions reductions beyond the controls and reductions proposed under the risk review for major sources.

The EPA also proposed to remove exemptions for periods of startup, shutdown, and malfunction (SSM) and specified that the emission standards apply at all times and proposed a requirement for electronic reporting of performance test results and notification of compliance reports.

Of central relevance to this supplemental proposal are the proposed emission limits for the process fugitive emissions from roof vents at anode refining operations at new and existing sources; the mercury limits for any existing and new combination of stacks or other vents from the copper concentrate dryers, converting department, the anode refining department, and the smelting vessels affected sources; the potential control options for metal HAP at the aisle scrubber; and the proposed MACT limits for additional unregulated HAP. As detailed in the next section II.E of this preamble, the EPA has obtained additional information relative to these processes and pollutants. As a result of evaluating this new information, we are proposing both revised and new requirements in this supplemental proposed rulemaking (compared to the proposed requirements in the 2022 proposed RTR) for these processes and pollutants. A detailed discussion is provided in section III of this preamble, which covers what was proposed for these processes and pollutants in the 2022 proposed RTR, the evaluation of new information, and what we are proposing for these processes and pollutants in this supplemental proposed rulemaking.

The 2022 proposed RTR was published in the Federal Register on January 11, 2022 (87 FR 1616). The initial 45-day comment period was extended by 60 days and ended on April 26, 2022. During the comment period, the EPA received public comments from industry, tribal nations, two environmental groups, Arizona Department of Environmental Quality (ADEQ), and private citizens. Some of the comments on the proposed rulemaking claimed that there are additional unregulated HAP from the source category beyond those the EPA addressed in the 2022 proposed RTR. In response to these public comments, the EPA issued a CAA section 114 information request to collect further information. The section 114 information request was sent to the Freeport facility only, as the Asarco facility has been idled since October 2019. The section 114 information request was delivered to the Freeport facility on August 31, 2022. The key components of the response to the request included the following:

• Results of performance testing which was required to be conducted in two phases. Initially, performance tests were conducted at the vent fume and aisle scrubber stacks of the Freeport facility for the following compounds: benzene, 1,4-dichlorobenzene, formaldehyde, hexane, hydrogen fluoride, hydrochloric acid, toluene, total hydrocarbons, polycyclic aromatic hydrocarbons including naphthalene, and dioxins and furans. For compounds that were detected at the vent fume and aisle scrubber, additional performance testing and reporting were required to be conducted at the acid plant tail gas stack. The Agency did not request chlorine testing; however, chlorine test results were included in respective test reports.

• Data regarding the costs and feasibility of installing additional controls for the aisle scrubber. This included the evaluation of two options: (1) installing a wet electrostatic precipitator (WESP) which would operate in series with the aisle scrubber to provide further emissions reductions, and (2) installing a baghouse which would control the secondary converter emissions before they enter the aisle scrubber.

• Detailed information regarding all input materials.

In addition to the information collected through the section 114 information request, the EPA also received information during and after the public comment period of the 2022 proposed RTR. This additional information included cost estimates for the control devices which would be required by the emission limits proposed in the 2022 proposed RTR ( e.g., for mercury, lead and arsenic). It also included additional performance testing results for the roofline vents, vent fume, aisle scrubber, and acid plant. Finally, Freeport also voluntarily performed an additional performance test for mercury in 2022 and submitted those results to the EPA. The data collected and used in this action are provided in the docket for this action.

Regarding the anode roofline vents, we received one additional stack test that resulted in a small increase to the annual emissions of lead, which we now estimate to be 4.47 tons/yr, relative to the estimate in the 2022 proposed rule, which was 4.09 tons/yr. For mercury, based on the additional mercury test, we now estimate mercury emissions from point and non-point sources at the Freeport facility to be 139 lb/yr, while the Asarco mercury emissions are unchanged from the 2022 Proposed RTR (10 lb/yr). Finally, we received two new stack tests for the aisle scrubber at the Freeport facility, and based on these new test data, the estimates of PM metals emissions from the aisle scrubber are slightly lower compared to the 2022 proposed RTR, but only have a small effect on the overall risk assessment results. Nevertheless, we updated our risk analysis based on the additional data and concluded that the new data would not change our proposed determination that risk is unacceptable at baseline. We did not revise or redo the demographic analysis. The 2022 risk assessment and demographics analyses conducted for this action are available in the preamble of the 2022 proposed rule (87 FR 1616; January 11, 2022) and associated technical documents cited in that 2022 preamble. These documents can also be found in the docket of this supplemental proposal. Aspects of the updated risk review are summarized in sections III.C. and II.E of this preamble, and a more detailed discussion is provided in section III.F of this preamble.

In this section, the EPA describes the analytical results and proposed decisions for addressing the additional unregulated HAP for the major source category. Additionally, this section discusses analytical results and revised decisions for certain provisions of the 2022 proposed RTR. For more information regarding the types of analytical procedures used and the types of information the EPA evaluates for actions, see section III of the 2022 proposed rule (87 FR 1616; January 11, 2022). These revised decisions affect the proposed emission limits for the process fugitive emissions from roof vents at anode refining operations at new and existing sources; the mercury limits for any existing and new combination of stacks or other vents from the copper concentrate dryers, converting department, the anode refining department, and the smelting vessels affected sources; and the proposed regulatory options for the particulate metal HAP ( e.g., lead, arsenic) for the aisle scrubber at the Freeport facility. Finally, the EPA is proposing amendments to address the use of bypass stacks for major sources within the primary copper smelting category.

As mentioned in section II.E of this preamble, the EPA received comments on the 2022 proposed RTR concerning unregulated HAP from the major sources within the primary copper smelting category. In response, the EPA issued a CAA section 114 information request to the Freeport facility on August 31, 2022. The CAA section 114 information request required performance testing in two phases. Initially, performance testing was to be conducted for the required HAP at the vent fume and aisle scrubber. The acid plant stack was required to be tested for a required HAP only if the preliminary test results from the vent fume stack demonstrated that the pollutant is emitted above detection levels (ADL) for at least one sample run. Any pollutant that was not ADL at the vent fume stack was not required to be tested at the acid plant stack because it was assumed that the pollutant would not be detected at the acid plant stack as well. A summary of the HAP tested, the EPA test method, and the results by stack by detection classification ( e.g., ADL; below detection levels (BDL); detection level limited (DLL)) are shown in Table 1. We note that while not required, the test report for the vent fume and aisle scrubber included results for chlorine. Complete copies of the stack test reports for the vent fume and aisle scrubber as well as the acid plant are available in the docket for this supplemental rule. 3

FMCSA organizes this notice of proposed rulemaking (NPRM) as follows:

If you submit a comment, please include the docket number for this NPRM (FMCSA-2023 - 0122), indicate the specific section of this document to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2023-0122/document, click on this NPRM, click “Comment,” and type your comment into the text box on the following screen.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing.

FMCSA will consider all comments and material received during the comment period.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to the NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of the NPRM. Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or via email at brian.g.dahlin@dot.gov. At this time, you need not send a duplicate hardcopy of your electronic CBI submissions to FMCSA headquarters. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket for this rulemaking.

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2023-0122/document and choose the document to review. To view comments, click this NPRM, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its regulatory process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov. As described in the system of records notice DOT/ALL 14 (Federal Docket Management System (FDMS)), which can be reviewed at https://www.transportation.gov/individuals/privacy/privacy-act-system-records-notices, the comments are searchable by the name of the submitter.

This NPRM proposes to update an incorporation by reference found at 49 CFR 385.4(b)(1) and referenced at § 385.415(b). The provision at § 385.4(b)(1) currently references the April 1, 2022, edition of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” The CVSA handbook contains inspection procedures and OOSC for inspections of shipments of transuranic waste and HRCQs of RAM. The OOSC, while not regulations, provide enforcement personnel nationwide, including FMCSA's State partners, with uniform enforcement tolerances for inspections. The material is available, and will continue to be available, for inspection at the FMCSA, Office of Safety, 1200 New Jersey Avenue SE, Washington, DC 20590 (Attention: Chief, Compliance Division) at (202) 366-1812. The document may be purchased from the Commercial Vehicle Safety Alliance, 6303 Ivy Lane, Suite 310, Greenbelt, MD 20770, (301) 830-6143, www.cvsa.org.

In this NPRM, FMCSA proposes to incorporate by reference the April 1, 2023, edition of the handbook. This NPRM will discuss all updates to the currently incorporated 2022 edition of the handbook.

Nine updates distinguish the April 1, 2023, handbook edition from the 2022 edition. The incorporation by reference of the 2023 edition does not impose new regulatory requirements.

Congress has enacted several statutory provisions to ensure the safe transportation of hazardous materials in interstate commerce. Specifically, in provisions codified at 49 U.S.C. 5105(d), relating to inspections of motor vehicles carrying certain hazardous material, and 49 U.S.C. 5109, relating to motor carrier safety permits (hereinafter “HMSPs”), the Secretary of Transportation is required to promulgate regulations as part of a comprehensive safety program on HMSPs. The FMCSA Administrator has been delegated authority under 49 U.S.C. 113(f) and 49 Code of Federal Regulations (CFR) 1.87(d)(2) to carry out the functions vested in the Secretary of Transportation related to HMSPs. Consistent with that authority, FMCSA has promulgated regulations under 49 CFR part 385, subpart E to address the congressional mandate on HMSPs. Those regulations are the underlying provisions to which the material incorporated by reference discussed in this notice is applicable.

In 1986, the U.S. Department of Energy and CVSA entered into a cooperative agreement to develop a higher level of inspection procedures, out-of-service (OOS) conditions and/or criteria, an inspection decal, and a training and certification program for inspectors to conduct inspections on shipments of transuranic waste and HRCQs of RAM. CVSA developed the North American Standard Level VI Inspection Program for Transuranic Waste and Highway Route Controlled Quantities of Radioactive Material. This inspection program for select radiological shipments includes inspection procedures, enhancements to the North American Standard Level I Inspection, radiological surveys, CVSA Level VI decal requirements, and the “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” As of January 1, 2005, all vehicles and carriers transporting HRCQs of RAM are regulated by the U.S. Department of Transportation. All HRCQs of RAM must pass the North American Standard Level VI Inspection prior to the shipment being allowed to travel in the United States. All highway route controlled quantities of RAM shipments entering the United States must also pass the North American Standard Level VI Inspection either at the shipment's point of origin or when the shipment enters the United States.

49 CFR 385.415 prescribes operational requirements for motor carriers transporting hazardous materials for which a HMSP is required. Section 385.415(b) requires that motor carriers ensure a pre-trip inspection is performed on each motor vehicle to be used to transport a HRCQ of a Class 7 (radioactive) material, in accordance with the requirements of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out- of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.”

According to 2019-2022 data from FMCSA's Motor Carrier Management Information System (MCMIS), approximately 3 million Level I through Level VI inspections were performed annually. Nearly 96.3 percent of these were Level I, 1 Level II, 2 and Level III  3 inspections. During the same period, an average of 756 Level VI inspections were performed annually, comprising only 0.03 percent of all inspections. On average, OOS violations were cited in only 6 Level VI inspections annually (0.8 percent), whereas on average, OOS violations were cited in 233,259 Level I inspections (26 percent), 264,926 Level II inspections (26 percent), and 57,990 Level III inspections (6 percent) annually. As these statistics demonstrate, OOS violations are cited in a far lower percentage of Level VI inspections than Level I, II, and III inspections, due largely to the enhanced oversight and inspection of these vehicles because of the sensitive nature of the cargo being transported.

The changes to the 2023 edition of the CVSA handbook are intended to ensure clarity in the presentation of the OOS conditions and are generally editorial or ministerial. As discussed below, FMCSA does not expect the changes made in the 2023 edition of the CVSA handbook to affect the number of OOS violations cited during Level VI inspections.

Section 385.4(b)(1), as amended on December 22, 2022 (87 FR 78579), references the April 1, 2022, edition of the CVSA handbook. This NPRM proposes to amend § 385.4(b)(1) by replacing the reference to the April 1, 2022, edition date with a reference to the new edition date of April 1, 2023.

The changes made based on the 2023 edition of the handbook are outlined below. It is necessary to update the materials incorporated by reference to ensure motor carriers and enforcement officials have convenient access to the correctly identified inspection criteria referenced in the rules.

Nine changes in the 2023 edition of the CVSA handbook distinguish it from the April 1, 2022, edition:

1. Part I, Item 4.b.4 was revised by removing a section of the paragraph to provide more clarity to the OOSC, as this criterion was causing confusion for inspectors. Previously, inspectors interpreted Item 4.b.4 as a driver's operation of a property-carrying vehicle without a medical certificate or with an expired medical certificate. However, language was removed to make clear that an OOS violation exists if a driver operates a property-carrying vehicle without a valid medical certificate, either in the driver's possession or on file with the State driver licensing agency, and has a history of either failing to produce a medical certificate or having an expired medical certificate. The change is intended to ensure clarity in the presentation of the OOS conditions and is not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

2. Part I, Item 7.b, was amended to clarify that if evidence of a driver's use of a drug or other controlled substance within the previous 24 hours is noted by the inspector, then the driver is considered to be under the influence with probable cause and shall be declared out of service for 24 consecutive hours. This clarifies the previous OOSC language specifying that drivers must not be under the influence of drugs or any other substances at the time of the inspection. A note has been added to the section to define the term driver's use, which covers instances where drivers have acknowledged using drugs or other substances or where an inspector has directly observed such use within the previous 24 hours. The change is intended to ensure clarity in the presentation of the OOS conditions and is not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

3. Part I, Items 9, 10, and 11 were amended to provide clear guidance on when a driver should be declared OOS for false record of duty status (RODS). CVSA added language that clarifies that a false RODS violation does not present an “imminent hazard” if the falsification occurred on a previous date and the driver had an intervening confirmed qualifying rest period. In addition, footnote 2 was relocated as a note in the applicable U.S., Canadian, and Mexican OOS sections to assist inspectors in identifying the OOS criterion. Furthermore, the footnotes in these sections were reorganized, and the outdated “Removed and Reserved” footnotes deleted. The changes are intended to ensure clarity in the presentation of the OOS conditions and are not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

4. Part I, Item 9, was amended to clarify footnote 10 concerning when to consider a driver OOS for not being able to print or sign their RODS. CVSA determined that, as the prevalence of digital documents and credentials in the Federal Motor Carrier Safety Regulations (FMCSRs) increases, electronic versions of those documents and credentials will replace paper copies. Therefore, a driver will not be placed OOS for not having a physical RODS, provided that their hours of service can be verified on an electronic display, as the absence of a physical RODS alone does not present an imminent hazard. The change is intended to ensure clarity in the presentation of the OOS conditions and is not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

5. Part II, Item a.6.d, Item a.7.e, Item b.3.e, and Item b.4.e were amended to clarify the severity of rust required on a brake rotor to be included in the 20 percent brake criterion. The 20 percent criterion relates to the number of brakes on the vehicle or combination and the number of those brakes that are found to be defective during an inspection. Specifically, if 20 percent or more of the total number of brakes on the vehicle are found to be defective, the vehicle is considered OOS. With this update, CVSA added language to clarify that a brake can be considered defective only if rust is present on the entire surface of both sides of the rotor, rather than just a section. The changes are intended to ensure clarity in the presentation of the OOS conditions and are not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

6. Part II, Item 2.e.3 and Item 2.f were amended to clarify that placement of tiedowns on cargo is not specified in the FMCSRs or National Safety Code (NSC) Standard 10. Section 393.110(b)(3) of the FMCSRs and NSC Standard 10 state that 2 tiedowns are required for articles exceeding a length of 10 feet (3.04 meters), and 1 additional tiedown for every 10 feet (3.04 meters) of article length, or fraction thereof, beyond the first 10 feet (3.04 meters) of length. The FMCSRs use the term “for” instead of “in” or “within,” implying a quantity requirement rather than a location specification. As a result, the note in the OOSC can be interpreted differently from the regulations. Therefore, CVSA updated the OOSC to specify that the correct number of tiedowns, rather than their specific placement on the cargo, should be enforced. The changes are intended to ensure clarity in the presentation of the OOS conditions and are not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

7. Part II, Item 9.a was amended to modify the title by adding “To Be On” to clarify the conditions under which certain lighting devices, including headlamps, tail lamps, stop lamps, turn signals, and lamp/flags on projecting loads, should be considered OOS. The previous language of “When lights are required” led some inspectors to believe that the vehicle is OOS when these lighting devices are not operating. However, the intention of the OOSC is to declare the vehicle OOS only when these lighting devices are required to be turned on. To avoid confusion, CVSA added the language “to be on” to the title, which will help clarify this OOS criterion. The changes are intended to ensure clarity in the presentation of the OOS conditions and are not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

8. Part II, Item 11.d was amended to add language to clarify that spring hangers and equalizers are part of the vehicle's frame and axle when declaring the vehicle OOS. A vehicle is OOS if any part of a suspension connecting rod or tracking component assembly, including spring leaves that are used as a suspension connecting rod, or any part used to attach these components to the vehicle's frame or axle, such as spring hangers or equalizers, is cracked, loosened, broken, or missing. The addition was necessary as spring hangers and equalizers are considered part of the vehicle's frame or axle but, previously, were not specifically identified. The changes are intended to ensure clarity in the presentation of the OOS conditions and are not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

9. Part II, Item 11.d was amended to add a diagram to aid inspectors in identifying the various parts of the suspension system during vehicle inspections for OOS violations. The suspension system contains numerous components and parts that may require inspectors to have other reference materials readily available to aid in the identification of the item(s). To simplify the identification process during inspections, CVSA supplemented the section with a diagram to enable inspectors to quickly identify those areas. The changes are intended to ensure clarity in the presentation of the OOS conditions and are not expected to affect the number of OOS violations cited during Level VI inspections in the United States.

Congress authorized DOT by statute to promote safe transportation of hazardous materials in interstate commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures for inspections and safety permits for motor vehicles carrying certain hazardous materials. 49 U.S.C. 5105(d); 49 U.S.C. 5109. The purpose of this rule is to incorporate by reference the 2023 edition of the CVSA handbook outlining the out-of-service criteria and inspection procedures for commercial highway vehicles transporting RAMs. The provisions within the CVSA handbook are intended to operate holistically in addressing a range of issues necessary to ensure the safe transport of hazardous materials. However, FMCSA recognizes that certain provisions focus on unique topics. Therefore, FMCSA finds that the various provisions within the CVSA handbook would be severable and able to operate functionally if one or more provisions were rendered null or otherwise eliminated. The remaining provision or provisions within the handbook would continue to operate functionally if any one or more provisions were invalidated and any other provision(s) remained. In the event a court were to invalidate one or more of the CVSA handbook's unique provisions, the remaining provisions should stand, thus allowing this congressionally mandated program to continue to operate.

Section 385.4(b)(1), as amended on December 22, 2022, references the April 1, 2022, edition of the CVSA handbook. This NPRM proposes to replace the reference to the April 1, 2022, edition date with a reference to the new edition date of April 1, 2023.

FMCSA has considered the impact of this NPRM under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, E.O. 14094 (88 FR 21879, Apr. 11, 2023), Modernizing Regulatory Review, and DOT's regulatory policies and procedures. The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) determined that this NPRM is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563 and E.O. 14094, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. Accordingly, OMB has not reviewed it under that E.O.

The proposed rule, if finalized, would update an incorporation by reference from the April 1, 2022, edition to the April 1, 2023, edition of CVSA's handbook titled “North American Standard Out-of-Service Criteria and Level VI Inspection Procedures and Out-of-Service Criteria for Commercial Highway Vehicles Transporting Transuranics and Highway Route Controlled Quantities of Radioactive Materials as defined in 49 CFR part 173.403.” FMCSA reviewed its MCMIS data on inspections performed from 2019 to 2022 and does not expect the handbook updates to have any effect on the number of OOS violations cited during Level VI inspections. Therefore, the proposed rule's impact would be de minimis.

This rule is not a major rule as defined under the Congressional Review Act (5 U.S.C. 801-808). 4

Under 49 U.S.C. 31136(g), FMCSA is required to publish an advance notice of proposed rulemaking (ANPRM), or proceed with a negotiated rulemaking, if a proposed rule is likely to lead to the promulgation of a major rule. As this proposed rule is not likely to result in the promulgation of a major rule, the Agency is not required to issue an ANPRM or to proceed with a negotiated rulemaking.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term small entities comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000 (5 U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. None of the updates from the 2023 edition impose new requirements or make substantive changes to the FMCSRs.

When an Agency issues a rulemaking proposal, the RFA requires the Agency to “prepare and make available an initial regulatory flexibility analysis” that will describe the impact of the proposed rule on small entities (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, instead of preparing an analysis, if the proposed rule is not expected to impact a substantial number of small entities. The proposed rule would update an incorporation by reference found at § 385.4(b)(1) and referenced at § 385.415(b), and would incorporate by reference the April 1, 2023, edition of the CVSA handbook. The changes to the 2023 edition of the CVSA handbook from the 2022 edition are intended to ensure clarity in the presentation of the OOS conditions and are generally editorial or ministerial. As noted above, FMCSA does not expect the changes made in the 2023 edition of the CVSA handbook to affect the number of OOS violations cited during Level VI inspections in the United States. Accordingly, I certify that the proposed action would not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA wants to assist small entities in understanding this proposed rule so they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman (Office of the National Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman ) and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their discretionary regulatory actions.

The Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $192 million (which is the value equivalent of $100 million in 1995, adjusted for inflation to 2022 levels) or more in any 1 year. Though this NPRM would not result in such an expenditure, and the analytical requirements of UMRA do not apply as a result, the Agency discusses the effects of this rule elsewhere in this preamble.

This proposed rule contains no new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

The Consolidated Appropriations Act, 2005, 6 requires the Agency to assess the privacy impact of a regulation that will affect the privacy of individuals. This NPRM would not require the collection of personally identifiable information.

This rule does not have Tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

FMCSA analyzed this proposed rule pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq. ) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2, paragraph 6(b). This Categorical Exclusion (CE) covers minor revisions to regulations. The proposed requirements in this rulemaking are covered by this CE.

Background

The Service's mission is working with others to conserve, protect, and enhance, fish, wildlife, plants, and their habitats for the continuing benefit of the American people. The Service has some amount of management responsibility for more than 96 million terrestrial acres as well as an additional 760 million acres of submerged lands in marine national monuments. The 96 million acres of terrestrial land includes approximately 89 million acres where the Service is the principal land manager and permitting authority; nearly 4.9 million acres of conservation easements on private lands, where landowners are the principal land managers, but the Service has a permitting role when a proposed use will affect the United States' real property interest; more than 1.7 million acres of public land where another Federal agency is the principal land manager and permitting authority, but where the Service has some management responsibility through an agreement with another agency; and approximately 775,000 acres under a temporary lease or agreement where another entity is the permitting authority.

Of the 89 million acres of terrestrial land principally managed by the Service, 76.8 million acres are in Alaska, 12.2 million acres are in the lower 48 States, and 50,000 acres are in Hawaii. The vast majority of these acres are part of the National Wildlife Refuge System (Refuge System), the mission of which is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans (16 U.S.C. 668dd(a)(2)). The total also includes approximately 21,000 acres of public land in the National Fish Hatchery System, which the Service manages for the propagation and distribution of fish and other aquatic animal life.

The 89 million acres of terrestrial land includes more than 20 million acres of designated wilderness that the Service manages for “the preservation of their wilderness character” in accordance with the Wilderness Act of 1964 (16 U.S.C. 1131 et seq. ). Subject to existing private rights, and special provisions included in specific wilderness-designation statutes and the Alaska National Interest Lands Conservation Act (ANILCA; Pub. L. 96-487; 16 U.S.C. 3101 et seq. ), the Wilderness Act prohibits commercial enterprises and permanent roads. The law also prohibits temporary roads; motor vehicles, motorized equipment, motorboats, landing of aircraft, and other forms of mechanical transport; structures; and installations, unless their use can be demonstrated to be necessary to meet minimum requirements for the administration of the area for Wilderness Act purposes.

Refuge System lands and waters are managed according to the authorities of the National Wildlife Refuge System Administration Act of 1966 (Administration Act; 16 U.S.C. 668dd-668ee), as amended by the National Wildlife Refuge System Improvement Act of 1997 (Improvement Act; Pub. L. 105-57), and ANILCA. For lands in Alaska, the Improvement Act specifies that ANILCA provisions prevail in any situation in which there is a conflict between any provision in the Improvement Act and any provision of ANILCA. If a right-of-way across Refuge System lands is specifically authorized by ANILCA, then the Service must follow the procedures in 43 CFR part 36 when permitting the right-of-way and follow other applicable Refuge System laws and regulations where they do not conflict with ANILCA.

The Administration Act authorizes the Service to permit a new use, or expand, renew, or extend an existing use, of a refuge only when the Service determines it is a compatible use. The term “compatible use” means a wildlife-dependent recreational use or any other use of a refuge that, in the sound professional judgment of the Service Director, will not materially interfere with or detract from the fulfillment of the mission of the Refuge System or the purpose(s) of the refuge.

A “compatibility determination” is a written determination, signed and dated by the Refuge Manager, that an existing or new use of a refuge is compatible with the Refuge System mission and the purpose(s) of the refuge. Currently, there are more than 560 national wildlife refuges, and each refuge has different establishing authorities, purposes, habitat types, wildlife species, and public uses, which can result in different compatibility determinations for the same use. The Improvement Act required the Service to issue regulations establishing a process for determining whether a proposed use is a compatible use; these regulations are set forth in title 50 of the Code of Federal Regulations in part 26. The Improvement Act authorizes the Service to permit a right-of-way across Refuge System land only when the right-of-way is a compatible use.

The Improvement Act's compatibility requirements apply only to Service permitting of rights-of-way across Refuge System lands and do not apply to other Service lands, except in the case of National Fish Hatchery System lands, where, by regulation at 50 CFR 70.6, the Refuge compatibility requirements in 50 CFR part 26 are equally applicable to fish hatcheries, and at 50 CFR 70.7, where the right-of-way regulations are equally applicable to fish hatcheries. The Service processes applications for other rights-of-way across lands outside the Refuge System and National Fish Hatchery System under the applicable authority cited at 43 CFR part 2800, and these lands are not subject to the Improvement Act's compatibility requirement.

The Administration Act authorizes the Secretary of the Interior, acting through the Service Director, to issue a right-of-way permit across Refuge System lands only after the applicant pays the Service the fair market value or fair market rental value of the right-of-way, unless the applicant is exempt from such payment by any other provision of Federal law, including ANILCA title XI. In addition, before issuing a right-of-way permit, the Service must assess the effects of the proposed use, as required by the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq. ); the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531 et seq. ), as amended; the National Historic Preservation Act of 1966 (NHPA; 54 U.S.C. 300101 et seq. ); and other applicable laws and Executive orders.

The regulations at 50 CFR 26.41 state that, for existing rights-of-way, the Service will not make a compatibility determination and will deny any request for maintenance of an existing right-of-way that will affect a unit of the Refuge System, unless:

• The design adopts appropriate measures to avoid resource impacts and includes provisions to ensure no net loss of habitat quantity and quality;

• Restored or replacement areas identified in the design are afforded permanent protection as part of the national wildlife refuge or wetland management district affected by the maintenance; and

• All restoration work is completed by the applicant prior to any title transfer or recording of the easement, if applicable.

In accordance with the Improvement Act, in instances where an existing use is authorized for more than 10 years (such as an electric utility right-of-way), the Service will not reevaluate whether the use is a compatible use during the permit term so long as the right-of-way holder is in compliance with all the terms and conditions of the permit. In a permit's terms and conditions, the Service may require permit modifications at a future date to ensure that the use remains a compatible use. All right-of-way permits issued by the Service include language allowing the Service to terminate the right-of-way permit if the permittee's use violates the permit terms and conditions.

Additionally, this proposed rule and the Improvement Act's compatibility requirement do not apply to permanent rights-of-way in existence prior to land acquisitions by the United States, including prior existing highway rights-of-way held by State and local units of government, except in situations where there is a proposed expansion, rerouting, or additional use of a right-of-way that will encumber Refuge System lands. The Improvement Act requires that all uses of Refuge System lands be compatible with the purpose(s) for which those areas were established and the mission of the Refuge System, and activities not authorized by a preexisting right-of-way are subject to 50 CFR 26.41 and the procedures in this proposed rule.

The Service may not authorize an expansion, rerouting, or additional use of a right-of-way that will encumber Refuge System lands unless the use is compatible with the purpose(s) for which those areas were established and the Refuge System mission.

On January 19, 2021, we published in the Federal Register (86 FR 5120) a proposed rule to revise and streamline Service regulations for permitting of rights-of-way by aligning Service processes more closely with those of other DOI bureaus, to the extent practicable and consistent with applicable law. The original proposed rule proposed to revise the Service's regulations in 50 CFR part 29, subpart B, for permitting of rights-of-way across Service lands. The proposed changes would streamline the right-of-way permitting process for proposed uses on Service-managed lands and reorganize the right-of-way regulations. For a description of the substantive changes originally proposed to the regulations in 50 CFR part 29, subpart B, see the January 19, 2021, proposed rule (86 FR 5120).

We accepted public comments on the proposed rule for 60 days, ending March 22, 2021. By that date, we received 15 comments on the proposed rule. Three comments suggested that the Service make no changes to its regulations to streamline right-of-way permitting. Overall, nine comments suggested no additional changes to those we had proposed. We discuss the remaining comments by topic, below.

Comment (1): The State of Alaska and Doyan, an Alaska Native corporation, commented that ANILCA authorizes certain types of rights-of-way in Alaska, and that these rights-of-way have their own set of regulations in 43 CFR part 36.

Our Response: In this document, we updated the proposed rule to clarify that rights-of-way authorized by ANILCA must follow the procedures in 43 CFR part 36.

Comment (2): The State of Utah and the Incorporated Research Institutions for Seismology suggested that, in remote areas, requiring an applicant to provide a survey plat prepared by a licensed professional land surveyor or another professional licensed by the State will create an unnecessary burden. These commenters suggested that, in remote areas located far from any road system, the Service should waive the requirement for an applicant to provide a survey plat before the Service will issue a right-of-way permit.

Our Response: The regulations as previously written required applicants to provide documentation that “show the right-of-way in such detail that the right-of-way can be accurately located on the ground.” As part of the development of the proposed rule, the Service reviewed different types of location information, including GIS coordinates, provided by some applicants in lieu of a survey plat, and found that the information was generally insufficient for the Service to accurately locate these sites on the ground.

The purpose of the revised land-survey portion of the proposed regulations is to standardize applicant documentation that supports the geographic location, linear length and direction, and overall land area for those uses that will alter the landscape or otherwise provide for long-term exclusive use of Federal land within national wildlife refuges. The proposed rule requires an applicant to provide a survey plat prepared by a licensed professional land surveyor or another professional licensed by the State before the Service will issue a right-of-way permit. However, the proposed rule does not require applicants to submit a survey plat with their initial application, and, in most cases, the Service is able to determine whether a proposed use is a compatible use before the applicant must provide a survey plat. The Service recognizes the challenges in surveying rights-of-way in remote areas. However, the Service requires that a tenable right-of-way boundary is in place and locatable on the ground. We did not make any changes to the proposed rule as a result of these comments.

Comment (3): The Incorporated Research Institutions for Seismology singled out the EarthScope: Transportable Array project, which installs seismic monitoring stations in remote locations throughout Alaska, as a scientific project that will be burdened if the Service requires applicants to provide a survey plat before the agency permits a right-of-way.

Our Response: The Service issues right-of-way permits to authorize longer term uses, typically uses lasting 10 years or more. The Service issues special use permits to authorize short-term uses of Refuge System lands, and special use permits do not require a survey plat. To authorize nonpermanent placement of equipment on Refuge System lands for short-term scientific research purposes, the Service may issue a special use permit if the Service determines the use is a compatible use. We did not make any changes to the proposed rule as a result of these comments.

Comment (4): ExteNet Systems suggested that the Service exempt “small wireless facilities” (as that term is defined at 47 CFR 1.6002(l)) from the requirement to pay the fair market value or fair market rental value for use and occupancy of Service land, and, in its place, implement a fixed use and occupancy fee of $270 per year for each small wireless facility.

Our Response: The Administration Act requires the Service to obtain payment of fair market value or fair market rental value for use and occupancy of Refuge System land before permitting a right-of-way. If the Department of the Interior approves a fee schedule for small wireless facilities that assesses the fair market value or fair market rental value for use and occupancy of Federal land for small wireless facilities, then this rule would allow the Service to use that fee schedule. We did not make any changes to the proposed rule as a result of these comments.

Comment (5): The State of Alaska and the State of Utah stated that the Service has no authority to regulate lands within existing State road and highway systems, and they requested that the Service clarify that these proposed regulations do not apply to existing State road and highway systems.

Our Response: This proposed rule has no impact on prior existing highway rights-of-way held by State and local units of government on FWS-administered land, except that, consistent with 23 CFR 645.205, activities not authorized by a prior existing highway right-of-way, as well as activities that fall outside the footprint of an existing right-of-way, are subject to 50 CFR 26.41 and the procedures in this revised proposed rule. Under 50 CFR 26.41, which implements the Improvement Act's compatible-use requirement, the Service may not authorize an expansion, rerouting, or additional use of a right-of-way that will encumber Refuge System lands unless the use is compatible with the purpose(s) for which those areas were established. We did not make any changes to the proposed rule as a result of these comments.

Comment (6): The National Rural Electric Cooperative Association suggested that the Service clarify that the compatible-use requirement for rights-of-way across Refuge System land does not apply to Service lands outside the Refuge System.

Our Response: We clarified that Refuge compatibility requirements do not apply to lands outside the Refuge System and National Fish Hatchery System. By regulation at 50 CFR 70.6, the Refuge compatibility requirements in 50 CFR part 26 are applicable to fish hatcheries.

Comment (7): A commenter suggested we eliminate gender-specific references.

Our Response: We agree and made appropriate changes to the proposed regulatory text in this revised proposed rule.

As discussed above, under Summary of Comments and Responses, we made changes to the proposed rule based on comments we received. We clarified that permitting for rights-of-way authorized by ANILCA must follow the procedures in 43 CFR part 36. We clarified that the compatible-use requirement for rights-of-way applies to rights-of-way on Refuge System land and does not apply to rights-of-way on other Service lands, except in the case of National Fish Hatchery System lands, where, by regulation at 50 CFR 70.6, the Refuge compatibility requirements in 50 CFR part 26 are equally applicable to fish hatcheries. We also eliminated gender-specific references in the proposed rule.

In addition to these changes, we determined that additional regulatory revisions are also necessary for clarity and to align Service requirements more closely with those of other DOI bureaus. Under § 29.21-3, we clarified that our evaluation of rights-of-way previously permitted for more than 10 years will examine compliance with the terms and conditions of the authorization and not reexamine the original authorization, consistent with 16 U.S.C. 668dd(d)(3)(B)(vii). Under § 29.21-7, we clarified that a permit will be issued for a term of up to 50 years when the Service Regional Director deems it appropriate, or for a lesser term, as the existing regulatory language authorizing a permit term ( i.e., generally up to 50 years, or so long as the permit is used for the purpose for which it was issued, or for a lesser term when considered appropriate) is interpreted inconsistently by different Service Regional offices.

Under § 29.21-4(b)(2), we clarified that an applicant must provide an environmental analysis for a proposed new right-of-way, but that an environmental analysis for renewals of existing rights-of-way that involve no changes to the permitted use need address only the impacts of ongoing operation and maintenance and any new statutory requirements since the original permit issuance. We also clarified that, before the Service will issue a right-of-way permit, an applicant must provide a preliminary site and facility construction plan for a proposed right-of-way that requires construction, and provide a vegetation management plan when vegetation will be disturbed by construction, operation, or maintenance of the right-of-way; however, this proposed rule would provide the Service Regional Director discretion with respect to timing, i.e., when the Service requires this information. The original proposed rule left it to a Regional Director to determine, in all cases, whether the Service requires an environmental analysis, preliminary construction plan, and vegetation management plan.

Consistent with our goal of aligning Service processes more closely with those of other DOI bureaus, we propose to update § 29.21-6 to clarify our cost-recovery procedures for application processing and monitoring of rights-of-way. Under proposed § 29.21-6(c)(2), the Regional Director has the discretion to waive reimbursement for Service costs for right-of-way application evaluation and processing activities and monitoring activities so long as there are appropriated funds for these activities. Under § 29.21-6(d), we clarified that payments received by the Service to reimburse the United States for the costs incurred in evaluating and processing applications, and for monitoring, will be deposited into the United States Treasury until such time that any provision of law allows these payments to supplement the Service's appropriation.

Under § 29.21-8, we updated our proposed permit terms and conditions to make them more consistent with those of other DOI bureaus. We also clarified that certain permit terms and conditions are always required and cannot be waived, and that other terms and conditions are required but may be waived if the Regional Director determines they are not relevant to the requested use. Under § 29.21-8(e), we added the option for the Service to require a bond for a right-of-way when the Regional Director determines that the Service is likely to incur reclamation costs due to the construction or operation of the right-of-way, or if the right-of-way is abandoned or terminated; similar to the Bureau of Land Management, we propose to exempt Federal, State, and local governments from these bonding requirements. Under § 29.21-8(f), we added terms and conditions for rights-of-way for communications facilities to implement the Mobile Now Act (47 U.S.C. 1455(d)(1)).

Under § 29.21-11(b), we clarified that the terms of the right-of-way permit will specify the amount of the lump sum paid by the applicant for use and occupancy during the current permit term, or, if applicable, the initial annual rental payment amount for use and occupancy of the permitted area. Under § 29.21-11(d), we clarified that, consistent with 16 U.S.C. 668dd(d)(2), payments received by the Service for use and occupancy of rights-of-way on Refuge lands and interests in land will be deposited into the Migratory Bird Conservation Fund to carry out the provisions of the Migratory Bird Conservation Act (16 U.S.C. 715 et seq. ) and the Migratory Bird Hunting Stamp Act (16 U.S.C. 718 et seq. ). We also clarified that, consistent with 16 U.S.C. 715s(a), payments received for use and occupancy of rights-of-way on other Service-managed lands and interests in land will be deposited into the National Wildlife Refuge Fund, to make payments annually to counties and other units of local government.

We propose to revise § 29.21-13(m) to be consistent with Public Law 101-475, enacted October 3, 1990, which amended the Mineral Leasing Act to eliminate the 60-day waiting period after the Secretary of the Interior notifies Congress of DOI's intention to permit a right-of-way for a pipeline 24 inches or more in diameter that will be used for the transportation of oil, natural gas, synthetic liquid or gaseous fuels, or any refined product produced from these substances.

Finally, we updated the structure of the regulatory language to improve readability.

As stated above, before issuing a right-of-way permit, the Service must assess the effects of the proposed use, as required by NEPA, the ESA, and the NHPA as well as other applicable laws and Executive orders. In regard to NEPA, we believe that this proposed rulemaking action qualifies for a categorical exclusion as described in 43 CFR 46.210(i) for rulemaking actions that are primarily procedural in nature. As set forth in that regulation, under this proposed rule, we will conduct NEPA analysis for individual permit applications.

For descriptions of our actions to ensure compliance with the following statutes and Executive orders, see our January 19, 2021, proposed rule (86 FR 5120):

• Regulatory Flexibility Act;

• Paperwork Reduction Act of 1995;

• Unfunded Mandates Reform Act;

• Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, and 13563.

For the reasons given in the preamble, we hereby propose to further amend part 29, subchapter C of chapter I, title 50 of the Code of Federal Regulations, as proposed to be amended January 19, 2021, at 86 FR 5120, as set forth below:

The revisions and additions read as follows:

Background

Under the ESA, we are responsible for determining whether certain species are threatened or endangered, and, to the maximum extent prudent and determinable, designating critical habitat for endangered and threatened species at the time of listing (16 U.S.C. 1533(a)(3)(A)(i)). On August 23, 2021, we published a final rule that revised the listing of Rice's whales under the ESA to reflect the change in the scientifically accepted taxonomy and nomenclature of this species (86 FR 47022). Prior to this revision, the Rice's whale had been listed in 2019 under the ESA as an endangered subspecies of the Bryde's whale, Balaenoptera edeni (Gulf of Mexico subspecies). The 2019 listing rule indicated that, with a total abundance of approximately 100 individuals, small population size and restricted range are the most serious threats to this species (84 FR 15446, April 15, 2019). However, other threats such as energy exploration, development, and production; oil spills and oil spill responses; vessel collision; fishing gear entanglement; and anthropogenic noise were also identified as threats that contribute to the risk of extinction.

In the final listing rule, we stated that critical habitat was not determinable at the time of the listing, because sufficient information was not currently available on the geographical area occupied by the species (84 FR 15446, April 15, 2019). Under section 4 of the ESA, if critical habitat is not determinable at the time of listing, a final critical habitat designation must be published 1 year after listing (16 U.S.C. 1533(b)(6)(C)(ii)). The Natural Resources Defense Council and Healthy Gulf filed a complaint in July 2020 with the U.S. District Court for the District of Columbia seeking an order to compel NMFS to designate critical habitat for the Rice's whale. A settlement agreement was approved on October 14, 2021, and a modified settlement agreement was approved on October 26, 2022 ( Natural Resources Defense Council, Inc. and Healthy Gulf v. Raimondo, 1:20-cv-2047-KBJ (D.D.C.)). The modified settlement agreement stipulates that NMFS will submit a proposed rule to the Office of the Federal Register by July 15, 2023, and the final rule by June 15, 2024. This proposed rule describes the proposed critical habitat designation, including supporting information on Rice's whale biology, distribution, and habitat use, and the methods used to develop the proposed designation.

Section 3(5)(A) of the ESA defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary of Commerce (Secretary) that such areas are essential for the conservation of the species. (16 U.S.C. 1532(5)(A)). Conservation is defined in section 3(3) of the ESA as the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary (16 U.S.C. 1532(3)). Section 3(5)(C) of the ESA provides that, except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.

Section 4(a)(3)(B) of the ESA prohibits designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD) or designated for its use, that are subject to an Integrated Natural Resources Management Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such a plan provides a benefit to the species for which critical habitat is proposed for designation. Our regulations also provide that critical habitat shall not be designated within foreign countries or in other areas outside of U.S. jurisdiction (50 CFR 424.12(g)).

Section 4(b)(2) of the ESA requires the Secretary to designate critical habitat for threatened or endangered species “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” This section also grants the Secretary discretion to exclude any area from critical habitat if the Secretary determines “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” However, the Secretary may not exclude areas if such exclusion will result in the extinction of the species (16 U.S.C. 1533(b)(2)).

Once critical habitat is designated, section 7(a)(2) of the ESA requires Federal agencies to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify that habitat (16 U.S.C. 1536 (a)(2)). This requirement is in addition to the section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to jeopardize the continued existence of ESA-listed species. Specifying the geographic location of critical habitat also facilitates implementation of section 7(a)(1) of the ESA by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the ESA. See 16 U.S.C. 1536(a)(1). The ESA section 7 consultation requirements do not apply to citizens engaged in actions on private lands that do not involve a Federal agency. However, designating critical habitat can help focus the efforts of other conservation partners ( e.g., State and local governments, individuals, and nongovernmental organizations).

This proposed rule describes information on the biology of the Rice's whale, the methods used to develop the proposed designation, and our proposal to designate critical habitat for the Rice's whale. The Endangered Species Act Critical Habitat Report, referenced throughout this proposed rule and available for review (see ADDRESSES ), provides more detailed discussions of information and analyses that contributed to the conclusions presented in this proposed rule.

The proposed designation was developed in accordance with the current implementing regulations, which include changes made in 2019 to the definition of physical or biological feature and the requirements for designating unoccupied critical habitat (84 FR 45020, August 27, 2019). On July 5, 2022, the United States District Court for the Northern District of California issued an order vacating regulations, promulgated in 2019, that adopted changes to 50 CFR part 424 (84 FR 45020, August 27, 2019) (“2019 regulations”). Among other things, the 2019 regulations made changes to the definition of “physical or biological features” (50 CFR 424.02) and the criteria for designating specific areas outside the geographical area occupied by the species as critical habitat (50 CFR 424.12(b)(2)). On September 21, 2022, the U.S. Court of Appeals for the Ninth Circuit granted a temporary stay of the district court's July 5 order. On November 14, 2022, the Northern District of California issued an order granting the government's request for voluntary remand without vacating the 2019 regulations. The District Court issued a slightly amended order 2 days later on November 16, 2022. As a result, the 2019 regulations remain in effect, and we are applying the 2019 regulations here. For the purposes of developing this proposed rule, however, we considered whether the analysis or its conclusion would be any different under the regulations in effect prior to 2019. We have determined that while our analysis in some respects would differ, the conclusions ultimately reached and presented here would not be any different. Additional discussion regarding these analyses is provided in this document where applicable.

As detailed in the sections that follow, the specific occupied areas proposed for designation as critical habitat for the Rice's whale contain approximately 73,220.65 square kilometers (28,270.65 square miles) of continental shelf and slope associated waters within the Gulf of Mexico.

This section summarizes life history and biological characteristics of endangered Rice's whales to provide context for the determination of physical or biological features that are essential for the conservation of the species. Rice's whales were estimated to be the most impacted shelf and oceanic stock of marine mammals exposed to the 2010 Deepwater Horizon (DWH) oil spill ( Deepwater Horizon Natural Resource Damage Assessment Trustees, 2016) and much of what we know about the species has been learned since 2010. Following the DWH event, Rice's whales were estimated to have experienced 17 percent increase in mortality (confidence interval of 7 to 24 percent), 22 percent increase in failed pregnancies (confidence interval of 10 to 31 percent), and an 18 percent higher likelihood of having adverse health effects (confidence interval of 7 to 28 percent) (DWH MMIQT, 2015). An estimated 48 percent of the Rice's whale population was exposed to DWH oil, resulting in an estimated 22 percent maximum decline in population size that will require an estimated 69 years until recovery, meaning the time it would take for the population to return to 95 percent of the baseline trajectory (DWH MMIQT, 2015).

Limited information is available on the life history of Rice's whales. Consequently, we provide specific information for Rice's whales where possible and pertinent information on the closely related Bryde's-like whales in general, highlighting traits that these species likely share. The information below summarizes information contained in the final listing rule (84 FR 15446, April 15, 2019) updated with the best scientific information available.

Like other members of the “Bryde's whale complex” or “Bryde's-like whales” in the genus Balaenoptera, Rice's whales are medium-sized rorqual whales. Rice's whales have a streamlined and sleek body shape, a somewhat pointed, flat rostrum with three prominent ridges ( i.e., a large central ridge, and smaller left and right lateral ridges), a large, falcate dorsal fin located about two-thirds of the way back on its body, and counter-shaded coloration that is fairly uniformly dark dorsally and light to pinkish ventrally (Jefferson et al., 2015). The pectoral fins are uniformly dark, slender and pointed. The head of a Rice's whale makes up about one quarter of its entire body length. Its fluke, or tail, is broad. These whales exhibit no external asymmetrical pigmentation on the lower jaws, differentiating them from fin and Omura's whales. Limited data (from eight whales) indicate total length measurements for Rice's whales ranged from 470 centimeters (cm) (15.4 ft) to 1,265 cm (41.5 ft). The largest verified Rice's whale observed in the GOMx was a lactating female measuring 1,265 cm (41.5 ft) in length and the largest male was 1,126 cm (36.9 ft) (Rosel et al., 2021). Based on bristle coarseness, a stranded animal initially identified as a juvenile sei whale ( B. borealis ) was reclassified as a Bryde's whale (Mead, 1977). While baleen from across the Bryde's whale complex has not been comprehensively analyzed, Mead (1977) and Kato and Perrin (2018) indicate that the baleen bristles from members of the Bryde's whale complex are coarser than those of sei whales. Similarly, Rosel et al. (2021) found that the baleen bristles of three Rice's whales from the GOMx were coarser than that of a sei whale that stranded in the GOMx in 1994.

Similar to other marine mammals, the Rice's whale is considered to be a k-selected species (large body size, long life expectancy, slow growth rate, late maturity, and with few offspring). Taylor et al. (2007) estimate that Bryde's whales worldwide may reproduce every 2 to 3 years and reach sexual maturity at age 9. Given the basic biology of baleen whales, it is likely that under normal conditions, female Rice's whales produce a calf every 2 to 3 years. The sex ratio determined for 32 individual whales stranded or biopsied from the northern GOMx was 18 females and 14 males, which is not significantly different from a 50:50 ratio (Rosel et al., 2021).

Identification of several smaller Rice's whales in the GOMx stranding records (Edds et al., 1993) and observations of smaller individuals during NMFS Southeast Fisheries Science Center (SEFSC) large-vessel surveys in the GOMx provide evidence of breeding. In October of 2009, a dead, lactating female whale was found in Tampa Bay, with internal injuries consistent with blunt force trauma likely caused by a vessel strike. As a long-lived marine mammal with low reproduction rates and a very small population size, the loss of a single individual could drive the species towards extinction (Franklin, 1980; Rosenfeld, 2014).

As with its life history, little information exists on the behavior of the Rice's whale. Maze-Foley and Mullin (2006) found Rice's whales to have a mean group size of 2 (range 1-5, n = 14), similar to group sizes of the Eden's and Bryde's whales (Wade and Gerrodette, 1993). The Rice's whale is known to be periodically “curious” around ships and has been documented approaching ships in the GOMx (Rosel et al., 2016), as has also been observed in Bryde's whales worldwide (Leatherwood et al., 1976; Cummings, 1985). Two Rice's whales have shown evidence for vessel strike. This includes the dead adult, lactating female mentioned above that was discovered in Tampa Bay in 2009 with injuries, including separated vertebrae, lung damage, and subdermal contusions, consistent with impact caused by a large object, and a free-swimming Bryde's-like whale that was observed in 2019 in the northeastern GOMx with a severely deformed spine posterior to the dorsal fin consistent with a vessel strike. In September 2015, a female Rice's whale was tagged with an acoustic and kinematic data-logging tag in the De Soto Canyon (Soldevilla et al., 2017). Over the nearly 3-day tagging period, the whale spent 47 percent of its time within 15 m of the surface during the day and 88 percent of its time within 15 m of the surface during the night (Soldevilla et al., 2017). Curiosity around vessels, documented injuries consistent with vessel strikes, and documented behavior near the surface for a considerable amount of time illustrate the anthropogenic threat that vessels pose to Rice's whales. Bryde's whales are the third most commonly reported whale species to be struck by vessels in the southern hemisphere (vanWaerbeck and Leaper, 2008).

Taylor et al. (2007) estimated generation length for cetaceans using the following parameters: oldest age (or an estimate based on length), calf survival, adult survival, age at maturity, gestation length, and interbirth interval. For all Bryde's whales, the estimated generation length is 18.4 years using the following estimated parameters: maximum age of 58 years based on length (Best, 1977), age at first reproduction of 9 years based on gestation length (Lockyer, 1984) and age of sexual maturity (IWC, 1997), an interbirth interval of 2.5 years (Lockyer, 1984), calf survival rate of 0.840, and non-calf survival rate of 0.925 (IWC, 1997). According to Rosel et al. (2016), the majority of the samples used to estimate these parameters came from Japanese whaling data from the `typical' or pelagic form of Bryde's whale in the North Pacific and from South Africa, and are probably the B. e. brydei subspecies.

Sound production associated with behaviors including mating, rearing, social interaction, group cohesion, and feeding have been documented in marine mammal species (Erbe et al., 2016). Baleen whale species produce a variety of highly stereotyped, low-frequency tonal and broadband calls for communication purposes that are thought to function in a reproductive or territorial context, provide individual identification, and communicate the presence of danger or food (Richardson et al., 1995). Marine mammal species with and without specialized biosonar capabilities may rely on biological sounds to find prey, avoid predators, and likely use environmental sounds to support spatial orientation and navigation in three-dimensional marine habitats (Erbe et al., 2016; Cure et al., 2013; Deecke et al., 2002; Gannon et al., 2005). Generally, balaenopterids produce a variety of low-frequency tonal and broadband calls, with durations ranging from 1 to 60 seconds (s), fundamental frequencies between 10-1,000 Hertz (Hz), and high source levels from around 145 to over 190 decibels referenced to 1 micropascal (re 1 µPa) at 1 m (Richardson et al., 1995; Miller et al., 2021). Most balaenopterids produce some call types that are distinctive, stereotyped, and unique at the species or population level, including Rice's whales, which can be detected with autonomous passive acoustic monitoring surveys. Bryde's whales worldwide produce a variety of calls that are distinctive among geographic regions, and these calls may be useful for delineating subspecies or populations (Oleson et al., 2003; Širović et al., 2014). In the GOMx, Širović et al. (2014) reported `Bryde's' whale call types composed of downsweeps (frequency modulated signals with decreasing frequency over time) and downsweep sequences and localized these calls ( i.e., researchers recorded the calls on multiple instruments that allowed them to triangulate the location of the calls and then confirmed the location with visual sightings). Rice et al. (2014) detected these sequences, as well as two stereotyped tonal call types that originated from `Bryde's' whales in the GOMx.

Soldevilla et al. (2022a) used sonobuoys and passive acoustic tagging from three marine mammal surveys with focused effort in the Rice's whale core distribution area between 2015 and 2018 to validate potential call type sources and to characterize Rice's whale calls. Validation includes manually reviewing each automated detection and scoring each as a true or false detection. During concurrent visual and acoustic surveys, acoustic-directed approaches were conducted to obtain visual verifications of sources of localized sounds. The call repertoire that was validated to Rice's whales includes downsweep sequences (including downswept pulse pairs), long-moan calls, and tonal-sequence calls. Širović et al. (2014) proposed a fourth Rice's whale call type, the high-frequency downsweep call, which was not detected during the Soldevilla et al. (2022a) study and therefore the source remains unvalidated.

Soldevilla et al. (2022b) detected novel stereotyped tonal calls at three locations in the northwestern GOMx. The calls are similar to the Rice's whale long-moan calls detected in the northeastern GOMx, but with distinct differences from the northeastern calls and with at least six stereotyped variations. The cause and occurrence of these call features require further study.

The Rice's whale is the only species of large whale endemic to the United States and the only year-round resident baleen whale species in the Gulf of Mexico (Rosel et al., 2021).

Members of the Bryde's whale complex are tropical and subtropical in distribution, generally non-migratory, and found in all major ocean basins (Rosel et al., 2021). Bryde's-like whales do not migrate long distances to feed in polar or temperate regions (Constantine et al., 2018), nor do they have specific or separate feeding or breeding grounds (Penry et al., 2011).

Based on a compilation of 181 sightings from NMFS marine mammal vessel and aerial survey sightings, the primary Rice's whale core habitat is considered to be in the northeastern GOMx, centered over the De Soto Canyon in waters between 150 m and 410 m depth (Rosel et al., 2021). This area, referred to by NMFS as the Rice's whale “core distribution area,” is characterized by seasonal advection of low salinity, high productivity surface waters ( i.e., waters with high production of organic matter by planktonic plants), leading to persistent upwelling driven by both winds and interactions with the loop current (Farmer et al., 2022). In 2017, there was a genetically confirmed sighting of a Rice's whale in the western GOMx off the central Texas coast in 225 m depth (NMFS, 2018a; Rosel et al., 2021).

Passive acoustic monitoring recordings from the western GOMx along the shelf break south of the Flower Garden Banks National Marine Sanctuary (FGBNMS) confirm the presence of Rice's whales in the same area as two balaenopterid sightings made by NMFS in the early 1990s (Soldevilla et al., 2022b). A predictive density model highlights the importance of the 200 m isobath as an area Rice's whales may occupy along the northwestern GOMx shelf break (Roberts et al., 2016). Soldevilla et al. (2022b) detected baleen whale calls from passive acoustic moorings deployed from June 2016 to August 2017 in areas of predicted Rice's whale habitat in several locations in the northern GOMx. Passive acoustic recorder site selection was based on the median water depth of 221 m for Rice's whale sightings in the core distribution area and locations of unidentified baleen whale sightings, as well as dispersed sampling sites along the north-central to northwestern GOMx shelf break (Soldevilla et al., 2022b). A combined 1,285 days of acoustic data were collected at four western sites, and a total of 304 days of acoustic data were recorded at the concurrently deployed site in the core distribution area. Variants of Rice's whale long-moan calls were detected at three sites in the northwestern GOMx. At the westernmost FGBNMS site, 1,939 calls were detected on 47 days over 10 months of data collection (16 percent of days with data collected). The eastern FGBNMS site detected 429 calls on 18 days over 10 months (6 percent of days with data collected), and the Eugene Isles South site detected 22 calls on 3 days over 10 months (1 percent of days with data collected). No calls were detected at a site off Grand Isle, Louisiana. The recorder at the site in the core distribution area detected 66,583 long-moan Rice's whale calls over 11 months of data collection. On several occasions overlapping calls were detected and in some instances the overlapping calls were of different call subtypes indicating at least two individuals were calling during that encounter. Overlapping calls were recorded at both of the FGBNMS sites and at the site in the core distribution area. Long-moan call detections occurred in sporadic clusters throughout the year, with no evidence of seasonality at the western sites. At the western sites, at least one call was detected in every month of the year, which suggests year-round use of the western habitat area. Further research is needed to understand how many animals are using the northwestern sites and whether animals are moving between the northwestern and northeastern sites, or whether the calls at these sites represent different groups of animals.

Comparing numbers of acoustic call detections among sites is difficult. Local sound propagation conditions and ambient sound levels influence the ability to detect Rice's whale calls and the area over which whales can be detected. Higher numbers of acoustic call detections at a site may reflect higher call production rates, or it may reflect larger detection areas instead of higher animal presence. Soldevilla et al. (2022b) expected detection ranges at the western FGBNMS site to be approximately 25-50 percent of the detection range at the site in the core distribution area. Ambient noise levels at Rice's whale call frequencies are 6-13 decibels higher at the western FGBNMS site than the site in the core distribution area. Baleen whale calls in the 100-150 Hz frequency range generally can be detected on scales of tens of kilometers in pelagic environments ( e.g., McDonald, 2004). Rice's whale long-moan calls were commonly detected on scales of 20-75 km, suggesting a Rice's whale call could be detected over as much as 25 percent of the core distribution area in some conditions (Soldevilla et al., 2022a). In the western GOMx, which has 6-13 decibel higher mean ambient noise levels, resulting in smaller detection distances, the same long-moan calls were detected on two sensors 40 km apart, which suggests the Rice's whale call could be detected out to distances of at least 20 km (Soldevilla et al., 2022b). In the core distribution area, Rice et al. (2014) documented an occurrence of the same call on three sensors with a maximum of 150 km spacing, suggesting the calls could be detected out to distances of at least 75 km at times. Anthropogenic noise sources, including seismic survey airgun pulses and shipping traffic noise, appear to be the main contributors to the increased noise levels that lead to reduced detection ranges in the western GOMx. Studies in baleen whales, including Bryde's whales, have shown a decrease in communication range as a result of masking, which occurs when biologically irrelevant sounds prevent an animal from hearing biologically important sounds (Clark et al., 2009; Cholewiak et al., 2018; Gabriele et al., 2018; Putland et al., 2018). The three westernmost sites used by Soldevilla et al. (2022b) were not far from a major shipping fairway and vessel traffic noise was common in the recordings at those sites. The effects of low-frequency noise from shipping traffic and airguns on researchers' ability to detect calls were apparent in the detectable features of Rice's whale calls in the western GOMx. For example, many of the manually detected calls at the western sites consisted of only the 150 Hz tone due to increased noise levels below 125 Hz, and these were often of low signal-to-noise ratio likely due to a combination of sound propagation losses with distance and higher levels of shipping or seismic survey noise at the lower frequencies.

While contemporary sightings are primarily confined to the core distribution area in the northeastern GOMx, Rice's whales historically may have had a broader distribution in the northern and southern GOMx. Reeves et al. (2011) reviewed whaling logbooks from the GOMx and identified records of “finback” whales from the north-central GOMx south of the Mississippi River delta and in the southern GOMx on the Campeche Banks. Because fin whales are not part of the GOMx ecosystem, these records were likely Rice's whales misidentified as fin whales (Reeves et al., 2011), suggesting the distribution of the Rice's whale was likely broader than we see currently. In the north-central GOMx, whether Rice's whales stay in this area or their use of this area is restricted to travel between the northwest and northeast through areas of high shipping traffic near the Mississippi River delta is unknown. Soldevilla et al. (2022b) did not record Rice's whale calls at a site offshore of Grand Isle, Louisiana or during 2 months at a site in the north-central GOMx. The absence of Rice's whale call detections at these sites could indicate an absence of Rice's whales, an absence of calling Rice's whales, or an inability to detect whales in these areas due to higher ambient noise conditions and sound propagation conditions within the Mississippi Canyon. However, Rice's whale western long-moan call variants were detected both at the western-most sites and a site in the core distribution area, which suggests movement between the areas. Rice's whale western long-moan calls were detected on 6.4 percent of days at the site in the core distribution area. Rice's whale western long-moan call variants were detected on the same or consecutive days in the western-most and eastern-most GOMx sites, which were separated by a distance that is too far for one whale to travel in a single day (740 km), indicating that different Rice's whales produced the calls.

Based on the best available data, we conclude that the normal distribution of Rice's whales is limited to the Gulf of Mexico. No NMFS marine mammal vessel or aerial surveys from 1992 through 2019 have recorded a confirmed sighting of Rice's whales or any type of Bryde's whale along the U.S. eastern seaboard (Rosel et al., 2021). While Roberts et al. (2016) predicted a mean monthly abundance of seven Bryde's whales along the entire U.S. eastern seaboard based on four ambiguous “sei or Bryde's whale” sightings documented during surveys conducted between 1992 and 2014, Roberts et al. (2023) later concluded that these four sightings were most likely sei whales, and that given the lack of more recent evidence of Bryde's whales and the expert opinions of Rosel et al., 2021, Bryde's whales are effectively absent from the U.S. east coast. Acoustic studies off Jacksonville, Florida (Frasier et al., 2016), North Carolina (Debich et al., 2014), and Norfolk Canyon (Rafter et al., 2018) during 2011 through 2017 have not detected any types of Bryde's whales or similar species. This evidence suggests that Bryde's whales and similar species, including Rice's whales, are extremely rare along the U.S. east coast (Rosel et al., 2021). Rosel et al. (2021) compiled and scrutinized stranding reports from the U.S. Atlantic coast dating back to 1954 and confirmed six records of whales from the Bryde's whale complex. Of these, only two could be genetically confirmed as Rice's whales. All six whales were characterized as small. Mead (1977) suggested Bryde's whale strandings along the U.S. Atlantic were likely extralimital strays from the GOMx.

Northern Gulf of Mexico continental shelf habitat is characterized by sediment transported by the Mississippi River with soft-bottom sediment being the dominant substrate type (Balsam and Beeson, 2003; Love et al., 2013; Rezak et al., 1985). Froeschke and Dale (2012) attribute 96 percent of the GOMx floor to soft-bottom and 4 percent to hard substrate. This hard substrate provides Essential Fish Habitat (EFH) in the U.S. Exclusive Economic Zone of the GOMx. These substrate types support a wide variety of marine life, with some species' distributions that tend to change with depth, among other environmental factors (Etnoyer, 2009; Gallaway et al., 2001). There are no absolute biological or physical barriers or boundaries separating individual benthic habitats and communities that extend from the depths up across the continental shelf to the shoreline, but there appear to be transition zones with some biota moving between habitats. The continental shelf (10-200 meter depth) is heavily influenced by light, the shoreline, and surface currents, with sand and hardground habitats supporting reef forming corals and non-reef forming corals (Sulak and Dixon, 2015). The continental slope (>200-800 meter depth) is characterized by relatively rapid changes in depth over short horizontal distances with occasional canyons and hardground dominated by seeps or corals (Gallaway et al., 2001).

Garrison et al. (2022) developed a density surface model to predict Rice's whale distribution in the GOMx based on bathymetric and oceanographic features. Visual line transect survey data collected throughout the northern GOMx between 2003 and 2019 were analyzed, including broad-scale surveys of oceanic waters and directed studies within the Rice's whale core distribution area. Depth, sea surface temperature, surface and bottom salinity, sea surface height, surface geostrophic velocity, chlorophyll-a, and bottom temperature were among the variables considered. The model identified water depth, surface chlorophyll-a concentration, bottom temperature, and bottom salinity as the key parameters that characterize Rice's whale habitat. The model predicted additional suitable Rice's whale habitat outside the core distribution area in the northeastern GOMx, generally throughout the GOMx within 100 and 400 meters depth. Concentration of Rice's whales in the core distribution area appeared to be explained by higher summer chlorophyll-a concentrations, an indicator of phytoplankton abundance and biomass in coastal and estuarine waters, in the northeast region of the GOMx as compared to other regions in the GOMx with suitable bottom temperatures, but less surface productivity.

The Garrison et al. (2022) results build on earlier spatial density modeling efforts for Rice's whales based on sightings data that identified a relatively high density area ranging from shelf-edge Alabama to southwest Florida, with further suitable habitat in a narrower strip of shelf-edge extending to central Texas to the west and the Florida Keys to the east (Roberts et al., 2016). Garrison et al. (2022) stated that the model results are consistent with cold, high salinity water upwelling along the continental shelf break and seasonal inputs of high productivity surface water derived from coastal sources. The presence of eddies that have separated from the warm water loop current and the dominant circulation patterns in the GOMx lead to increased productivity and are likely a factor in maintaining the high density of forage species needed to support Rice's whales. The model also suggests additional habitat outside of U.S. waters in the southern GOMx may be suitable for Rice's whales, however these areas were not further considered, as areas outside U.S. jurisdiction cannot be designated as critical habitat.

Understanding predator-prey interactions is difficult for highly mobile and elusive species, such as marine mammals, that forage at depth (Sekiguchi et al., 1992; Pauly et al., 1998; Pierce and Boyle, 1991; Trites and Spitz, 2018). Cetaceans rely on predictable prey resources, and changes in prey availability and quality can potentially have population-level consequences, including decreased survival and reproduction rates leading to subsequent population declines (Bearzi et al., 2006; Piroddi et al., 2011; Ford et al., 2010). While information on the feeding ecology and drivers of prey selection are lacking for many cetacean species, foraging specialization has been documented among and within species and populations. Predators with high levels of specialization or higher energetic requirements are more susceptible to risks associated with the decline of their prey (Kiszka et al., in press).

Worldwide, members of the Bryde's whale complex exhibit a variety of foraging tactics and prey preferences, often with observations of surface feeding. Overall, pelagic schooling fishes in the order Clupiformes (sardines, herring, menhaden, anchovies) are the most commonly recorded prey, along with similar schooling species, such as members of the family Carangidae (Best, 2001; Konishi et al., 2009; Murase et al., 2007; Siciliano et al., 2004; Tershy, 1992; Watanabe et al., 2012). Populations examined further offshore also target krill (Best, 2001; Konishi et al., 2009), while the B. e. brydei population of the Hauraki Gulf in New Zealand appears to prey on copepods and krill along with ray-finned fishes and salps (Carroll et al., 2019).

Diet is poorly characterized for Rice's whales. Stomach contents, which traditionally provide most information on the diets and feeding ecology of baleen whales, are unavailable for Rice's whales. In 2019, an adult male Rice's whale stranded and died near Flamingo, Florida Bay, on the southwestern coast of Florida in the GOMx (field number FMMSN1908). The whale was collected and a necropsy was performed. However, stomach contents were unavailable due to a sharp piece of intragastric plastic in the second stomach chamber that caused hemorrhaging and acute gastric necrosis leading to the stranding and subsequent mortality of the whale. No direct information on the foraging ecology of Rice's whales exists. Surface feeding has never been observed, and, as a result, fish scales and tissue remains collected from Rice's whale feeding activity are not available. Fecal sampling has not been conducted for Rice's whales. In 2015, Soldevilla et al. (2017) placed an Acousonde suction-cup tag on a Rice's whale in the northeastern GOMx. The tag remained attached for nearly 3 days (63.85 hours) and revealed a diel diving pattern. The whale remained within 15 m the surface of the water 88 percent of the time during the night. Daytime dive behavior was characterized by repeated dives to depths >200 m, likely at or near the seafloor. Some of these deep dives included lunges near the seafloor associated with foraging (Soldevilla et al., 2017). Similar deep foraging dives throughout daylight hours were observed during 25 hours of tag deployment on a Rice's whale in the summer of 2018 (Soldevilla et al., 2022a). This type of bottom feeding is unusual for members of the Bryde's whale complex. What they may have been feeding on at those depths remains unknown.

Although direct evidence of Rice's whale prey species is lacking, analysis of stable isotopes of Rice's whale tissues collected by at-sea biopsies has provided data to better understand the feeding relationships among Rice's whales and other species within the ecosystem, i.e., the food web, also known as the trophic relationships. Stable carbon and nitrogen isotope ratios (noted δ 13 C and δ 15 N, respectively) within tissues of a predator reflect those of its prey and provide a useful method for assessing trophic relationships and can help identify foraging habitats. The use of stable isotope analysis of multiple elements (nitrogen, carbon, and sulfur) from biopsy samples collected on free-ranging whales to assess the trophic relationships and feeding ecology of cetaceans has recently increased ( e.g., Hooker et al., 2001; Ryan et al., 2013; Caputo et al., 2021).

Kiszka et al. (in press) are the first to attempt to describe the feeding ecology of Rice's whales and the first to examine the potential drivers affecting prey selection by Rice's whales in relation to prey availability and energy density. They used a combination of data from whale skin biopsy samples, fish trawl collections, and analysis of proximate composition in potential prey samples collected during research cruises conducted by the NMFS SEFSC in 2019. To account for the changes in isotopes through the food web, stable isotope mixing models incorporate uncertainty for each parameter and employ trophic enrichment factors (TEF). No TEF is available specifically for Rice's whales and therefore TEFs from the skin of fin whales were used.

Potential Rice's whale prey items were collected in 21 mid-water trawl hauls, conducted during daylight hours in the Rice's whale core distribution area from July 4-28, 2019. Trawls were operated close to the seafloor, consistent with the near-bottom foraging depths of individual Rice's whales observed by Soldevilla et al. (2017, 2022a). The trawls collected 35,598 organisms with an overall biomass of 158.21 kg. A total of 25 species/species groups were identified with 8 of those in less than 10 percent of the trawls. Maurolicus weitzmani, the Atlantic pearlside, was by far the most abundant species by number at 88.05 percent of the total catch (confidence interval of 86 to 90 percent). It also represented 19.67 percent of the total biomass (confidence interval of 17.4 to 22 percent). A different species dominated in biomass: Ariomma bondi, the silver-rag driftfish, made up 26.7 percent of the biomass (confidence interval of 23.9 to 29.5 percent), while making up only 1.21 percent of the total catch by number (confidence interval of 0.6 to 1.9) (Kiszka et al. in press).

Kiszka et al. (in press) selected four species for the stable isotope mixing model due to their prevalence in the samples and potential significance as a prey source in the community: Doryteuthis pealeii (longfin inshore squid), Diaphus dumerilii (Dumeril's lanternfish), Maurolicus weitzmani, and Ariomma bondi. All Rice's whale tissue samples fell within the mixing polygon, which suggests that the TEF and prey included in the analysis were appropriate. Mixing models of dietary contributions identified Ariomma bondi as the main prey (66.8 percent relative contribution), followed by Diaphus dumerilii (17.8 percent relative contribution), while other prey had minor relative contributions to the diet of Rice's whales ( Doryteuthis pealeii, 6.4 percent; and Maurolicus weitzmani, 9.1 percent). While stable isotope mixing models are a useful tool to understand trophic relationships within food webs, stomach content analysis is still the most reliable method to comprehensively investigate the diets of cetaceans. As explained above, stomach content analysis is not available for Rice's whales. Therefore, other prey species may be consumed that were not examined in the Kiszka et al. (in press) study.

The availability and quality of prey play important roles in the selection of prey in large predators, such as Rice's whales. Rice's whales forage during the day close to the seafloor. Because these deep dives require significant expenditures of energy, Rice's whales likely need high quality prey to meet their energetic requirements. Energy density data suggest that the high energy content of Ariomma bondi, relative to other available prey species, may be the primary driver of prey selection for Rice's whales. Kiszka et al. (in press) found that Ariomma bondi had significantly greater energy density (kilojoules/gram wet), lipids, and protein compared to the three other species selected for the model. Ariomma bondi were also significantly enriched in energy density (kilojoules/gram dry) compared to Diaphus dumerilii and Maruolicus weitzmani (Kiszka et al. (in press)). Moreover, Kiszka et al. (in press) found active prey selection was positive for Ariomma bondi, Doryteuthis pealeii, and Diaphus dumerilii, and that despite the fact Maurolicus weitzmani were the most abundant species in the trawl samples, Maurolicus weitzmani were relatively unimportant in the diets of Rice's whales. This suggests that prey abundance is likely not a primary driver of prey selection for Rice's whales. Overall, the results from Kiszka et al. (in press) suggest that Rice's whales are selective predators, preferentially targeting schooling demersal and vertically migrating prey with the highest energy content.

Estimates of abundance for Rice's whales in the northern GOMx are less than 100 individuals, with mean estimates of <50 individuals remaining (Rosel et al., 2021). Broad-scale aerial and ship-based line transect surveys to estimate cetacean abundance have been conducted in the northern GOMx as far back as 1991. Eleven abundance estimates were made between 1991 and 2012 and ranged between 0 and 44 individuals (see Rosel et al., 2016 for summary of surveys). Surveys with the lowest estimates covered waters primarily off the western GOMx, which is consistent with the species' preference for the northeastern GOMx, particularly the core distribution area. It should be noted, however, none of these surveys were focused on estimating abundance of a rare species and precision of all estimates is poor. The best and most recent population estimate available for Rice's whales is 51 individuals (confidence interval of 20 to 130 whales, Garrison et al., 2020).

In the following sections, we describe the relevant definitions and requirements in the ESA and implementing regulations at 50 CFR part 424 and the key information and criteria used to prepare this proposed critical habitat designation. In accordance with section 4(b)(2) of the ESA, this proposed critical habitat designation is based on the best scientific data available and takes into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. Scientific data used to identify potential critical habitat includes the information contained in the status review for the species (Rosel et al., 2016), proposed and final rules to list the Rice's whale under the ESA (81 FR 88639, December 8, 2016; 84 FR 15446, April 15, 2019), articles in peer-reviewed journals, other scientific reports and fishery management plans, and relevant Geographic Information System (GIS) data ( e.g., U.S. maritime limits and boundaries data) for geographic area calculations and mapping. To identify specific areas that may qualify as critical habitat for Rice's whale, in accordance with 50 CFR 424.12(b), we undertook the following steps: Identifying the geographical area occupied by the species at the time of listing; identifying physical or biological features essential to the conservation of the species; identifying the specific areas within the geographical area occupied by the species that contain one or more of the physical or biological features essential to the conservation of the species; determining whether these essential features may require special management considerations or protection; and considered whether any specific areas outside the geographical area occupied by the species are essential for the species' conservation. Our evaluation and conclusions are described in detail in the following sections.

One of the first steps in the critical habitat designation process is to define the geographical area occupied by the species at the time of listing. NMFS is also required to designate critical habitat based on the best available scientific data. The phrase “geographical areas occupied by the species,” which appears in the statutory definition of critical habitat (16 U.S.C. 1532(5)(A)(i)), is defined by regulation as “an area that may generally be delineated around species' occurrences, as determined by the Secretary ( i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis ( e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals) (50 CFR 424.02).

At the time of listing (84 FR 15446, April 15, 2019), Rice's whales were considered to be limited to the northeastern Gulf of Mexico, in the vicinity of the De Soto Canyon, although historical whaling records and unconfirmed sightings suggested their occurrence in the southern and northwestern GOMx (Rosel et al., 2016). Subsequent publications confirming that Rice's whales are continuing to use the northwestern GOMx include a sighting in the western GOMx off the central Texas coast in 2017 that was genetically confirmed as a Rice's whale (Rosel et al., 2021) and Rice's whale calls that were detected acoustically along the shelf break in the western and northern Gulf of Mexico from July 2016 to August 2017 (Soldevilla et al., 2022b). Soldevilla et al. (2022b) concluded that Rice's whales persistently occur over a broader distribution in the GOMx than was previously understood, which is documented to include both the northeastern and northwestern GOMx.

Rosel et al. (2021) reviewed Bryde's-like whale records in the Caribbean and greater Atlantic. They compiled sighting and stranding data from the U.S. eastern seaboard; reviewed acoustic studies off Cherry Point, North Carolina, in Norfolk Canyon, and off Jacksonville, Florida; and reviewed the published literature for the entire Atlantic Ocean to evaluate the distribution of Bryde's whale taxa in these areas. The investigators found that there are no confirmed sightings of Bryde's whales along the U.S. eastern seaboard and no acoustic detections in the specified study areas. Only six Bryde's whale strandings could be verified in the U.S. Atlantic coast, and of those, two were genetically determined to be Rice's whales. Bryde's whale strandings along the U.S. Atlantic are likely extralimital strays from the Gulf of Mexico (Mead, 1977) or their carcasses may have been transported via currents and winds from their normal distribution (Rosel et al., 2021). Therefore, the Atlantic Ocean is not considered part of the geographical area occupied by Rice's whales.

Because we cannot designate critical habitat areas outside of U.S. jurisdiction (50 CFR 424.12(g)) the geographical area under consideration for this designation is limited to areas under the jurisdiction of the United States that Rice's whale occupied at the time of listing. Based on the information above, we have determined that at the time of listing Rice's whales occupied the Gulf of Mexico.

The statutory definition of critical habitat refers to “physical or biological features essential to the conservation of the species,” (16 U.S.C. 1532(3)), but the ESA does not specifically define or further describe these features. ESA implementing regulations, however, define such features as those that occur in specific areas and that are essential to support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. The ESA regulations further provide that a feature may be a single habitat characteristic, or a more complex combination of habitat characteristics and may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity (50 CFR 424.02).

To assess habitat features that may qualify as “essential to the conservation” of Rice's whales, we evaluated physical and biological features that are essential to support the life history needs and support the conservation of Rice's whales within the areas they occupy within U.S. waters. Section 3 of the ESA defines the terms “conserve,” “conserving,” and “conservation” to mean: “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary” 16 U.S.C. 1532(3).

In the final listing rule, we determined that the Rice's whale is endangered under the ESA throughout all of its range due to its small population size and restricted range, and the threats of energy exploration, development and production, oil spills and oil spill response, vessel collision, fishing gear entanglement, and anthropogenic noise (84 FR 15446, April 15, 2019). Because Rice's whales rely entirely on the GOMx continental shelf and slope waters between the 100 and 400 m isobaths to support all of their life history stages, we have identified physical and biological features that support all of the Rice's whale life-history stages within its restricted range.

Based on the best scientific information available we have identified the following feature as being essential to the conservation of the Rice's whale: GOMx continental shelf and slope associated waters between the 100 and 400 m isobaths that support individual growth, reproduction, and development, social behavior, and overall population growth. The following attributes of this feature support Rice's whales' ability to forage, develop, communicate, reproduce, rear calves, and migrate throughout the GOMx continental shelf and slope waters and influence the value of the feature to the conservation of the species:

1. Sufficient density, quality, abundance, and accessibility of small demersal and vertically migrating prey species, including scombriformes, stomiiformes, myctophiformes, and myopsida;

2. Marine water with (i) elevated productivity, (ii) bottom temperatures of 10-19 degrees Celsius, and (iii) levels of pollutants that do not preclude or inhibit any demographic function; and

3. Sufficiently quiet conditions for normal use and occupancy, including intraspecific communication, navigation, and detection of prey, predators, and other threats.

Identification of “physical and biological features essential to the conservation of the species” must be done at an appropriate level of specificity, and that level of specificity is in turn determined by the best scientific data available (50 CFR 424.12(b)(1)(ii)). The description of these attributes reflects an appropriate level of specificity based on the best scientific data available.

With respect to the first attribute related to prey, we have identified four orders of prey that are important components of the Rice's whale diet, but we are not able to identify a quantitative threshold for a critical habitat prey feature. Even without such a threshold for critical habitat, however, we conclude the scientific information available supports evaluation of prey availability as an attribute of the essential feature. Emerging scientific information supporting Rice's whale prey preferences suggest that Rice's whales feed primarily on a schooling fish, Ariomma bondi. However, data are limited (small sample size from limited area and seasons) and still emerging as research continues. Therefore, we have not specified prey at the species level in the description of the prey attribute at this time, and we will continue to use the best available information on prey species in the diet of the whales and incorporate new information on prey in consultations on Rice's whale critical habitat as our understanding evolves.

With respect to the second attribute related to marine water quality, the term “elevated productivity” refers to waters with higher than normal production of organic matter by planktonic plants when compared to typical Gulf of Mexico oceanic levels, which are influenced by a complex variety of factors, including seasonal inputs of surface water originating from coastal sources and the offshore presence of loop current eddies.

Finally, with respect to the third attribute related to sufficiently quiet conditions for normal use and occupancy, Rice's whales rely on their ability to produce and receive sound within their environment to navigate, communicate, and detect prey and predators. Rice's whales have a foraging strategy that is adapted to the waters near the continental shelf and slope of the Gulf of Mexico, and limited data from two tagged Rice's whales showed each whale made repeated dives to depths of 200 m or greater throughout daytime hours, followed by foraging lunges at or just above the seafloor. Little or no light reaches the seafloor at those depths, even during daylight hours, suggesting that these animals may use acoustic cues to locate and target schools of prey fish.

Scientific information on the effects of anthropogenic noise on the behavior and distribution of baleen whales, including Bryde's whales, demonstrates that the presence of anthropogenic noise can adversely affect the value of marine habitat to Bryde's whales (for more discussion see the Anthropogenic Noise section of the final listing rule, 84 FR 15446, April 15, 2019). Of particular concern are anthropogenic noise sources that are long-lasting, chronic, and/or persistent, and cumulatively inhibit and/or mask the animals' ability to receive and interpret sound ( e.g., opportunities to forage or reproduce). Rice's whales vocalize at frequencies between 60 and 160 Hz, and elevation of ambient noise in low frequencies (between 10 and 1,000 Hz) are the most likely to adversely affect Rice's whales' acoustic soundscape and use of their habitat.

How human activities introduce noise in the marine environment, and how those noises alter the animals' use of habitat, is complex. Determining the biological significance of such alterations is equally complex and involves considering site specific variables, including: the acoustic characteristics of the introduced sound (frequency ( i.e., pitch), duration, and intensity); the physical characteristics of the habitat; the baseline soundscape; interactions with other sound sources; and the animals' use of that habitat. All of these factors will influence the pervasiveness and dominance of anthropogenic sound sources across the habitat. NMFS will continue to use the best scientific information available to analyze chronic or persistent noise sources and determine whether they degrade listening conditions within Rice's whale habitat.

Noises that would impair sufficiently quiet conditions for normal use and occupancy are those that inhibit Rice's whales' ability to receive and interpret sound for the purposes of navigation, communication, and detection or prey, predators, and other threats. As already noted, anthropogenic noises that are likely to impact the whales' habitat would be long-lasting, chronic, and/or persistent in the marine environment and, either alone or combined with other ambient noises, significantly raise sound levels over a significant portion of an area (in terms of size and use by the whale) on a prolonged basis ( e.g., annual or multiannual).

Specific areas within the geographical area occupied by a species may be designated as critical habitat only if they contain essential features that “may require special management considerations or protection” (16 U.S.C. 1532 (5)(A)(i)(II)). Special management considerations or protection are any “methods or procedures useful in protecting the physical or biological features essential to the conservation of listed species” (50 CFR 424.02).

The essential feature is particularly susceptible to impacts from human activity because of the moderate water depth range where this feature occurs as well as its proximity to the coast. We identified broad categories of actions, or threats, as having the potential to negatively impact the essential feature, or its attributes, and the ability to support the conservation of listed Rice's whales, including, but not limited to, in-water construction, energy development, commercial shipping, aquaculture, military activities, and fisheries. Each of these threats could independently or in combination result in the need for special management or protections of the essential feature. For example, direct harvest of the prey by fisheries has the potential to negatively impact the essential feature and the ability of feeding areas to support the conservation of Rice's whales. Energy development could inhibit safe, unrestricted passage between important habitat areas to find prey and fulfill other life history requirements. Thus, the “may require” standard is met or exceeded with respect to management of the essential feature. Although we do not speculate as to what specific conservation measures might be required in the future through section 7 consultations on particular proposed Federal actions, the impacts from categories of actions described above, combined with those from natural factors may affect the habitat, including the attributes described for its essential feature. We therefore conclude that the essential feature identified herein may require special management considerations or protection because threats to this feature exist throughout the species' range.

To determine what areas qualify as critical habitat within the geographical area occupied by the species, we are required to identify “specific areas” within the geographical area occupied by the species that contain the physical or biological features essential to the conservation of the species (50 CFR 424.12(b)(1)(iii)). Delineation of the specific areas is done “at a scale determined by the Secretary [of Commerce] to be appropriate” (50 CFR 424.12(b)(1)). Regulations at 50 CFR 424.12(c) also require that each critical habitat area be shown on a map. Because the ESA implementing regulations allow for discretion in determining the appropriate scale at which specific areas are drawn (50 CFR 424.12(b)(1)), we are not required to, nor do we have the ability to, determine that each square inch, acre, or even square mile independently meets the definition of “critical habitat.” A main goal in determining and mapping the boundaries of the specific areas is to provide a clear description and documentation of the areas containing the identified essential feature. This is ultimately crucial to ensuring that Federal action agencies are able to determine whether their particular actions may affect the critical habitat.

To map the specific area, we reviewed available species occurrence and bathymetric data. We used the highest resolution bathymetric data available. We used contours created from NOAA Office for Coastal Management, 2022 Bathymetric Contours, which provides data and maps at https://www.fisheries.noaa.gov/inport/item/54364. These bathymetric data ( i.e., isobaths) were used, with other geographic or management boundaries, to draw the boundary on the map of the specific areas identified as meeting the definition of occupied critical habitat. Sighting reports, species presence or absence, scientific papers and other research, the biology and ecology of Rice's whales, and information indicating the presence of one or more of the identified essential features within certain areas of their range were also used to inform the decision making. Expert opinion was important to identifying areas that contain the feature. These experts included a NMFS regional GIS lead, a NMFS Large Whale Recovery Coordinator, and other Rice's whale researchers from the SEFSC.

Ultimately, based on a review of the best available data, we identified one specific area in the Gulf of Mexico that meets the definition of critical habitat for the Rice's whale. To be eligible for designation as critical habitat under the ESA's definition of occupied areas, each specific area must contain at least one essential feature that may require special management considerations or protection. This area meets the definition of “critical habitat” because the best available scientific data indicate that the essential feature is present, as evidenced by Rice's whale sightings data, the presence of Rice's whale prey, and habitat use patterns. Due to the unique ecology of the continental shelf and slope associated waters, use by Rice's whales is largely driven by depth. Therefore, the feature essential to the species' conservation is found in those depths that allow the whales to travel throughout a majority of their range seeking food and opportunities to socialize and reproduce. The area identified as including the essential feature for Rice's whales ranges from the 100 m isobath to the 400 m isobath in the Gulf of Mexico. As noted above, Rice's whale sightings occurred predominantly between the 100 m isobath to the 400 m isobath within the northeastern GOMx centered along the 200 m isobath with one sighting during the summer of 2017 in a water depth of 263 m off the coast of Texas (Garrison et al., 2022).

One hundred eighty-one sightings ranged in water depths from 117 m to 408 m, with only two sightings falling outside the range of 151-352 m (Rosel et al., 2021). One Rice's whale was satellite-tagged for 33 days in the core distribution area in 2010 and remained between the 100 m isobath and the 400 m isobath for the duration of tracking (Soldevilla et al., 2017). Additionally, Ariomma bondi is a small schooling fish that occupies demersal habitat over muddy bottoms, typically between 50 m and 500 m, but particularly near the continental shelf break throughout the north-central and northwestern GOMx (Kiszka et al., in press). Moreover, moored passive acoustic monitoring units placed seaward of the continental shelf break in the western and central GOMx regularly detected Rice's whale vocalizations with no apparent seasonality (Soldevilla et al., 2022b).

The 100 m isobath was selected to delineate the inshore extent of the area that would include the essential feature for Rice's whales due to consistent habitat use at depths greater than 100 m and because no sightings have been made in areas where the water is shallower than 117 m. The 400 m isobath was selected to delineate the offshore extent of the area that would include the essential feature for Rice's whales due to consistent habitat use at depths less than 400 m and because no sightings have been made in areas where the water is deeper than 408 m. This full range of depths, from the 100 m isobath to the 400 m isobath, incorporates nearly all of the recorded locations of Rice's whales and includes those continental shelf and slope waters and feature essential to Rice's whales.

ESA section 3(5)(A)(ii) defines critical habitat to include specific areas outside the geographical area occupied by the species at the time of listing if the areas are determined by the Secretary to be essential for the conservation of the species. An area must logically be “habitat” in order for that area to meet the narrower category of “critical habitat” as defined in the ESA. Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361, 368 (2018) (explaining that an area cannot be designated as critical habitat unless it is also habitat for the species). Our regulations at 50 CFR 424.12(b)(2) further explain that the Secretary will identify, at a scale determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species that are essential for its conservation. The regulations also state that the Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. Under the previous implementing regulations ( i.e. those in effect prior to 2019), the Secretary's determination of specific areas outside the geographic area occupied by the species that are essential for its conservation considered the life history, status, and conservation needs of the species based on the best available scientific data.

The final rule that listed Rice's whales under the ESA identified energy exploration, development and production, oil spills and oil spill response, vessel collision, fishing gear entanglement, and anthropogenic noise as the most serious threats to Rice's whales (84 FR 15446, April 15, 2019). The presence of these threats within habitats used by Rice's whales likely influences the species' distribution, abundance, and survival. For example, noise levels within the 100 m to 400 m isobaths portion of the northern GOMx may be impacting the environment such that, in locations where noise levels are chronically the highest, Rice's whales may be periodically avoiding habitat they would otherwise inhabit. Should they be designated as critical habitat, the occupied areas identified and discussed above would help conserve areas that support individual growth, reproduction, and development; social behavior; and overall population growth of the species within U.S. jurisdiction. Based on our current understanding of the species' life history, status, and conservation needs, we are not able to identify any specific areas outside the geographical area occupied by the species that are essential for its conservation under either the current implementing regulations in 50 CFR 424.12(b)(2) or those in effect prior to 2019. Protecting the specific occupied area identified as critical habitat from destruction and adverse modification stemming from Federal actions would help support the species' habitat-based conservation needs.

Section 4(a)(3)(B)(i) of the ESA prohibits designating as critical habitat any lands or other geographical areas owned or controlled by the DOD, or designated for its use, that are subject to an Integrated Natural Resources Management Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary [of Commerce] determines in writing that such a plan provides a benefit to the species for which critical habitat is proposed for designation. Our regulations at 50 CFR 424.12(h) provide that, in determining whether an applicable benefit is provided, we will consider:

(1) The extent of the area and features present;

(2) The type and frequency of use of the area by the species;

(3) The relevant elements of the INRMP in terms of management objectives, activities covered, and best management practices, and the certainty that the relevant elements will be implemented; and

(4) The degree to which the relevant elements of the INRMP will protect the habitat from the types of effects that would be addressed through a destruction-or-adverse-modification analysis.

There are no geographical areas owned or controlled by the DOD or designated for its use that are subject to an INRMP that coincide with any of the areas under consideration for Rice's whale critical habitat.

Section 4(b)(2) of the ESA requires that we consider the economic impact, the impact on national security, and any other relevant impact, of designating any particular area as critical habitat.

Additionally, the Secretary has the discretion to exclude any area from critical habitat if the Secretary determines the benefits of exclusion (that is, avoiding some or all of the impacts that would result from designation) outweigh the benefits of designation. The Secretary may not exclude an area from designation if the Secretary determines, based upon the best scientific and commercial data available, exclusion will result in the extinction of the species. Because the authority to exclude is discretionary, exclusion is not required for any particular area.

The ESA provides the Secretary broad discretion in how to consider impacts. (See H.R. Rep. No. 95-1625, at 17, reprinted in 1978 U.S.C.C.A.N. 9453, 9467 (1978)). Regulations at 50 CFR 424.19(b) specify that the Secretary will consider the probable impacts of the designation at a scale that the Secretary determines to be appropriate, and that such impacts may be qualitatively or quantitatively described. The Secretary is also required to compare impacts with and without the designation (50 CFR 424.19(b)). In other words, we are required to assess the incremental impacts attributable to the critical habitat designation relative to a baseline that reflects existing regulatory impacts in the absence of the critical habitat. The consideration and weight given to any particular impact is determined by the Secretary. Courts have noted the ESA does not contain requirements for any particular methods or approaches. See, e.g., Bldg. Indus. Ass'n of the Bay Area et al. v. U.S. Dept. of Commerce et al., 792 F.3d 1027 (9th Cir. 2015) (upholding district court's ruling that the ESA does not require the agency to follow a specific methodology when designating critical habitat under section 4(b)(2)). NMFS and the U.S. Fish and Wildlife Service have adopted a joint policy setting out non-binding guidance explaining generally how we exercise our discretion under 4(b)(2). See Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (“4(b)(2) Policy,” 81 FR 7226, February 11, 2016). For this proposed rule, we followed the same basic approach to describing and evaluating impacts as we have for several recent critical habitat rulemakings, as informed by our 4(b)(2) Policy.

The following discussion of impacts is summarized from our Endangered Species Act Critical Habitat Report, which identifies the economic, national security, and other relevant impacts that we project would result from including the specified area in the proposed critical habitat designation. We considered these impacts when deciding whether to exercise our discretion to propose excluding particular areas from the designation. Both positive and negative impacts were identified and considered (these terms are used interchangeably with benefits and costs, respectively). Impacts were evaluated in quantitative terms where feasible, but qualitative appraisals were used where more appropriate to particular impacts. The primary impacts of a critical habitat designation result from the ESA section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat, and that they consult with NMFS in fulfilling this requirement. Determining these impacts is complicated by the fact that section 7(a)(2) also requires that Federal agencies ensure their actions are not likely to jeopardize the species' continued existence. The incremental impact of critical habitat designation is the extent to which Federal agencies modify their proposed actions to ensure they are not likely to destroy or adversely modify the critical habitat beyond any modifications the agencies would make because of listing and the requirement to avoid jeopardy to the Rice's whale. When the same modification would be required due to impacts to both the species and critical habitat, there would be no additional or incremental impact attributable to the critical habitat designation beyond the administrative impact associated with conducting the critical habitat analysis.

Relevant existing regulatory protections are referred to as the “baseline” for this analysis and are discussed in the Endangered Species Act Critical Habitat Report. In this case, notable baseline protections include the ESA listing of the species (84 FR 15446, April 15, 2019); other species listings and critical habitat designations, such as critical habitat for the Northwest Atlantic Ocean loggerhead sea turtle distinct population segment (79 FR 39855, August 11, 2014); and protections afforded the whales under the Marine Mammal Protection Act.

The Endangered Species Act Critical Habitat Report describes the projected future Federal activities that would trigger ESA section 7 consultation requirements if they are implemented in the future because the activities may affect the essential feature. These activities and the ESA consultation consequently may result in economic costs or negative impacts. The report also identifies the potential national security and other relevant impacts that may arise due to the proposed critical habitat designation, such as positive impacts that may arise from conservation of the species and its habitat, state and local protections that may be triggered as a result of designation, and educating the public about the importance of an area for species conservation.

Economic impacts of critical habitat designations primarily occur through implementation of section 7 of the ESA in consultations with Federal agencies to ensure their proposed actions are not likely to destroy or adversely modify critical habitat. The economic impacts of consultation may include both administrative and project modification costs; economic impacts that may be associated with the conservation benefits resulting from designation are described later.

To identify the types and geographic distribution of activities that may trigger section 7 consultation on Rice's whale critical habitat, we first reviewed the section 7 consultation histories from 2010 through 2021 for both the NMFS Southeast Region and its Office of Protected Resources for:

• Activities consulted on in the areas being proposed as critical habitat for the Rice's whale; and

• Activities that take place outside of the areas proposed critical habitat but whose effects extend into the critical habitat and are therefore subject to consultation.

We also considered section 7 consultations conducted in 2022 to the extent those consultations support modifying our projections of future consultations based on the 2010-2021 consultation history alone.

In addition, we convened discussions with NMFS personnel to identify future activities that may affect Rice's whale critical habitat that may not have been captured by relying on the section 7 consultation history. We reviewed the U.S. Army Corps of Engineers (USACE) permit application database for the South Atlantic Division and Southwestern Division to identify all USACE permit applications for projects located within the proposed critical habitat area. Review of USACE permit application data is useful because the database encompasses USACE-permitted activities that may not have been consulted on in the past if they were outside of previously designated critical habitats or areas containing species protected under the ESA. We compared the USACE permit application data to the NMFS section 7 consultation history and confirmed the latter's completeness, thereby validating use of the NMFS section 7 consultation database to project future informal consultations on USACE-permitted projects. We also will review more recent consultation information prior to the publication of any final rule. We determined that all categories of the activities identified have potential routes of effects to both the endangered Rice's whale and the proposed Rice's whale critical habitat, or to other species or designated critical habitat. We did not identify and we do not anticipate Federal actions that have the potential to affect only the Rice's whale critical habitat.

We identified the following eleven categories of activities implemented by seven different Federal entities as having the potential to affect the essential feature of the Rice's whale critical habitat:

Future consultations were projected based on the frequency and distribution of section 7 consultations conducted from 2010 through 2021 as well as some consultations conducted in 2022 that revealed a need to modify our projections of future consultations that was not captured in the 2010-2021 consultation history alone, review of USACE permit applications between 2010 and 2021, and discussions with NMFS personnel familiar with the scope of future activities that may affect the potential critical habitat. With certain exceptions, we consider it reasonable to assume that the breakdown of past consultations by type (into informal, formal, and programmatic consultations) and activity category ( e.g., scientific research and monitoring, water quality management, etc.) between the years 2010 and 2021 will generally reflect the breakdown of future consultations. Accordingly, we assume for most potentially impacted activity categories that the number and type of activities occurring within or affecting Rice's whale critical habitat would not change in the future. Activity categories to which we do not apply this assumption include space vehicle launches and reentry, wind energy development, oil and gas exploration and development, and military activities. For oil and gas and military activities, we anticipate that current programmatic and formal consultations on activities that could affect the proposed critical habitat would require two reinitiations each over the next 10 years and that each of these consultations would consider effects to Rice's whale critical habitat. As of January 2022, NMFS consults with the Federal Aviation Administration, U.S. Space Force, and National Aeronautics and Space Administration on space vehicle launches and reentries on a programmatic basis. Despite an expected increase in the frequency of space vehicle launches and reentries that could affect the proposed critical habitat, we project only one section 7 consultation over the next 10 years because these types of operations will be covered by a single programmatic consultation, and because we consider it unlikely that designation of critical habitat for the Rice's whale would change the outcome of the programmatic consultation. While there is considerable uncertainty regarding the scope of future renewable ( i.e., wind) energy development activities that would require Section 7 consultation on effects to Rice's whale critical habitat, our projections reflect the assumed reinitiation of the current programmatic consultation on site characterization and assessment activities. Our projections also assume formal consultation on the construction and operation of two wind energy projects over the next 10 years. While it is unlikely that such projects would be located seaward of the 100-meter isobath, it is possible that activities related to the construction and/or operation of the projects would affect the proposed critical habitat.

As discussed in more detail in our Endangered Species Act Critical Habitat Report, all categories of activities identified as having the potential to affect the proposed essential feature also have the potential to affect the endangered Rice's whales or other listed species or critical habitat. To estimate the economic impacts of critical habitat designation, our analysis compares the state of the world with and without the designation of critical habitat. The “without critical habitat” scenario represents the baseline for the analysis, considering protections already afforded the proposed critical habitat as a result of listing the Rice's whale as endangered and as a result of other Federal, state, and local regulations or protections, including other species listings and critical habitat designations. The “with critical habitat” scenario describes the state of the world with the critical habitat designation. The incremental impacts that will be associated specifically with the critical habitat designation, if finalized as proposed, are the difference between the two scenarios. As it stands, baseline protections exist in large areas proposed for designation as critical habitat for Rice's whale. In particular, areas proposed for Rice's whale critical habitat designation overlap to varying degrees with the presence of the threatened or endangered sei whale, sperm whale, North Atlantic green sea turtle distinct population segment, Northwest Atlantic Ocean loggerhead sea turtle distinct population segment, hawksbill sea turtle, Kemp's ridley sea turtle, and leatherback sea turtle; and critical habitat designated for the Northwest Atlantic Ocean loggerhead sea turtle distinct population segment. These areas already receive significant protections related to these listings and critical habitat designation. These protections may also protect the essential feature of the proposed Rice's whale critical habitat. Importantly, we do not expect designation of critical habitat for the Rice's whale to result in project modification for any of the activities that may affect the critical habitat because actions that are likely to adversely affect designated critical habitat may proceed so long as such actions do not result in the destruction or adverse modification of critical habitat. Unlike actions that are likely to adversely affect listed species, NMFS cannot specify reasonable and prudent measures that are necessary or appropriate to minimize impacts to critical habitat. In circumstances where NMFS determines an action is likely to result in destruction or adverse modification of critical habitat, NMFS must propose reasonable and prudent alternatives that avoid the destruction and adverse modification of the critical habitat.

The effort required to address adverse effects to the proposed critical habitat is assumed to be the same, on average, across categories of activities. Informal consultations are expected to require comparatively low levels of administrative effort, while formal and programmatic consultations are expected to require comparatively higher levels of administrative effort. For all formal and informal consultations, we anticipate that incremental administrative costs will be incurred by NMFS, the consulting Federal action agencies, and potentially, third parties. For programmatic consultations, we anticipate that costs will be incurred by NMFS and the consulting Federal action agencies. Incremental administrative costs per consultation that would occur absent designation of critical habitat for the Rice's whale and that would consider effects to Rice's whale critical habitat, are expected on average to be $12,000 for programmatic, $6,300 for formal consultations, and $3,000 for informal consultations (in 2022 dollars). These costs are assumed to double, on a per consultation basis, for consultations that are reinitiated to consider effects to Rice's whale critical habitat (NMFS, 2022).

We estimate the incremental administrative costs of section 7 consultation by applying these per consultation costs to the forecasted number of consultations. We anticipate that there will be approximately 8 programmatic consultations, 12 formal consultations, and 29 informal consultations that will require incremental administrative effort. Incremental costs are expected to total approximately $240,000 over the next 10 years (discounted at 7 percent), at an annualized cost of $37,000 (in 2022 dollars). We conservatively assume that there will be approximately 10 re-initiations of existing consultations to specifically address effects to Rice's whale critical habitat. We anticipate that the reinitiated consultations will be for Federal actions related to oil and gas activities, fishery management, military activities, water quality management, renewable energy development, and space vehicle launch and reentry operations. Table 1 shows the projected incremental costs of designation of critical habitat for the Rice's whale, by activity category.

In summary, significant baseline protections exist in areas proposed for Rice's whale critical habitat. Incremental impacts of the proposed designation are projected to reflect the incremental administrative effort required for section 7 consultations to consider effects to the critical habitat. Taking into consideration several assumptions and uncertainties, total projected incremental costs are approximately $240,000 over the next 10 years (discounted at 7 percent), or $37,000 in annualized costs (in 2022 dollars). Notwithstanding the uncertainty underlying the projection of incremental costs, the results provide an indication of the potential activities that may be affected and a reasonable projection of future costs.

Impacts to national security could occur if a designation triggers future ESA section 7 consultations because a proposed military activity “may affect” the feature essential to the listed species' conservation. Interference with mission-essential training or testing or unit readiness could result from the additional commitment of resources by the DOD or United States Coast Guard (USCG) to modify the action to prevent adverse modification of critical habitat or implement Reasonable and Prudent Alternatives. Whether national security impacts result from the designation also depends on whether future consultations and associated project modifications and/or implementation of reasonable and prudent alternatives, reasonable and prudent measures and terms and conditions would be required due to potential effects to Rice's whale or other ESA-listed species or designated critical habitat, regardless of the Rice's whale critical habitat designation, and whether the Rice's whale designation would add costs beyond those related to the consultation on effects to Rice's whale or other species or critical habitat.

As described previously, we identified DOD military operations as a category of activity that has the potential to affect the essential feature of the proposed Rice's whale critical habitat. However, for the actions that may affect Rice's whale critical habitat, designating critical habitat for Rice's whale is not expected to result in incremental impacts beyond administrative costs because the consultations would otherwise be required to address effects to either the Rice's whale or other listed species. National security impacts could result from the designation of critical habitat for the Rice's whale if it is determined through section 7 consultation that modifications to DOD activities are required to mitigate adverse effects to the critical habitat alone. We anticipate two reinitiations each over the next 10 years of existing consultations that would address effects to Rice's whale critical habitat. These include a programmatic consultation on U.S. Navy Atlantic Fleet Testing and Training operations and a formal consultation on U.S Air Force training and testing operations based out of Eglin Air Force Base. While these reinitiated consultations represent an incremental administrative impact of the proposed rule, which is considered in the economic analysis, the reinitiated consultations would not impact national security. We did not identify any other areas managed by DOD branches that are of potential concern.

We identified three broad categories of other relevant impacts related to this proposed critical habitat designation: Conservation benefits, both to the species and to the ecosystem; impacts on governmental or private entities that are implementing existing management plans that provide benefits to the listed species; and educational and awareness benefits. Our economic analysis provided in the Endangered Species Act Critical Habitat Report discusses conservation benefits of designating the proposed area and the benefits to society of conserving the species.

The primary benefit of critical habitat designation is the contribution to conservation and recovery of the Rice's whale. That is, in protecting the feature essential to the conservation of the species, critical habitat directly contributes to the conservation and recovery of the species. This analysis contemplates two broad categories of conservation benefits of critical habitat designation: (1) Increased probability of conservation and recovery of the species, and (2) Ecosystem service benefits.

The most direct benefits of the critical habitat designations stem from the enhanced probability of conservation and recovery of the species. From an economic perspective, the appropriate measure of the value of this benefit is people's “willingness-to-pay” for the incremental change. While the existing economics literature is insufficient to provide a quantitative estimate of the extent to which people value incremental changes in recovery potential, the literature does provide evidence that people have a positive preference for listed species conservation, even beyond any direct ( e.g., recreation, such as viewing the species while whale watching) or indirect use for the species ( e.g., fishing that is supported by the presence of healthy ecosystems).

In addition, designating critical habitat can benefit the ecosystem. Overall, the GOMx continental shelf and slope associated waters, including those comprising Rice's whale proposed critical habitat, provide important ecosystem services of value to individuals, communities, and economies. These include recreational opportunities (and associated tourism spending in the regional economy), habitat for recreationally and commercially valuable fish species, and climate stabilization via carbon sequestration. Critical habitat most directly influences the recovery potential of the species and protects ecosystem services through its implementation under section 7 of the ESA. Our analysis finds that the proposed rule is not anticipated to result in incremental project modifications. However, the protections afforded to the GOMx continental shelf and slope associated waters proposed as Rice's whale critical habitat could increase awareness of the importance of these habitat areas, which in turn could lead to additional conservation efforts.

Among other relevant impacts of critical habitat designations that we consider under section 4(b)(2) of the ESA are impacts on the efforts of private and public entities involved in management or conservation efforts benefiting listed species. In cases where there is a Federal nexus ( e.g., a Federal grant or permit), critical habitat designation could necessitate consultation with NMFS to incrementally address the effects of the management or conservation activities on critical habitat. In such cases, these entities may have to allocate resources to fulfill their section 7 consultation obligations as third parties to the consultation—including the administrative effort of consultation and, potentially, modification of projects or conservation measures to avoid adverse modification to the critical habitat—that, absent critical habitat designation, would be applied to management or conservation efforts benefiting listed species. As we anticipate the proposed designation would result in no project modifications beyond those that would already occur absent designation, the potential for reallocation of these private and public entities' resources would be limited to the incremental administrative costs of section 7 consultations that would occur absent Rice's whale critical habitat. Therefore, we do not expect that designating critical habitat for the Rice's whale would diminish private and public entities' ability to provide for the conservation of the Rice's whale.

The critical habitat designation could potentially have benefits associated with education and awareness. The potential for such benefits stems from three sources: (1) Entities that engage in section 7 consultation, including Federal action agencies and, in some cases, third party applicants; (2) members of the general public interested in conservation; and (3) state and local governments that take action to complement the critical habitat designation. Certain entities, such as applicants for particular permits, may alter their activities to benefit the essential feature of the critical habitat because they were made aware of the critical habitat designation through the section 7 consultation process. Similarly, Federal action agencies that undertake activities that affect the critical habitat may alter their activities to benefit the critical habitat. Members of the public interested in conservation also may adjust their behavior to benefit critical habitat because they learned of the critical habitat designation through outreach materials or the regulatory process. In our experience, designation raises the public's awareness that there are special considerations to be taken within areas identified as critical habitat. Similarly, state and local governments may be prompted to enact laws or rules to complement the critical habitat designations and benefit the listed species. Those laws would likely result in additional impacts of the designations.

However, quantifying the beneficial effects of the awareness gained through, or the impacts from state and local regulations resulting from, the proposed critical habitat designation is not possible.

We are not exercising our discretion to exclude any particular areas from designation based on economic, national security, and other relevant impacts. In summary, there are significant baseline protections that exist in the areas proposed for the Rice's whale critical habitat, and as a result, the incremental impacts of the proposed designation are low and reflect the incremental administrative effort required for section 7 consultations to consider effects specific to critical habitat. Taking into consideration several assumptions and uncertainties, the total projected incremental costs are approximately $240,000 over the next 10 years ($37,000 annualized), applying a discount rate of 7 percent. As the proposed critical habitat comprises a single unit, the analysis does not identify any particular area within the proposed critical habitat unit where these costs would be highly concentrated. Moreover, we anticipate that no particular industry would be disproportionately impacted. Similarly, we are not proposing to exclude any areas on the basis of national security impacts because no national security concerns exist related to the proposed critical habitat designation. We are also not proposing to exclude any particular area based on other relevant impacts. Other relevant impacts include conservation benefits of the designation, both to the species and to the ecosystem. We expect that designation of critical habitat will support conservation and recovery of the species. Future section 7 consultations on some of the activities that may affect Rice's whale will also consider effects to the critical habitat. While we do not expect these consultations to result in additional conservation measures, the additional consideration of effects specific to the critical habitat will increase overall awareness of the importance of Rice's whale and its habitat. For these reasons, we are not proposing to exclude any areas as a result of these other relevant impacts.

Our critical habitat regulations state that we will show critical habitat on a map with more detailed information discussed in the preamble of the critical habitat rulemaking and made available from NMFS (50 CFR 424.12(c)). When several habitats, each satisfying the requirements for designation as critical habitat, are located in proximity to one another, an inclusive area may be designated as critical habitat (50 CFR 424.12(d)). The habitat containing the essential feature and that may require special management considerations or protection is continental shelf and slope associated waters in the Gulf of Mexico. The boundaries of the specific area were determined by the presence of the essential feature and Rice's whales, as described earlier within this document. Because the quality of the available GIS data varies based on collection method, resolution, and processing, the proposed critical habitat boundaries are defined by the maps in combination with the textual information included in the proposed regulation. This textual information clarifies and refines the location and boundaries of each specific area.

The specific area of occupied critical habitat for the Rice's whale consists of waters from the 100 meter isobath to the 400 meter isobath in the Gulf of Mexico starting at the U.S. Exclusive Economic Zone boundary off of Texas east to the boundary between the South Atlantic Fishery Management Council and the Gulf of Mexico Fishery Management Council (50 CFR 600.105(c)) off of Florida. The area of the Gulf of Mexico unit is 73,220.65 square kilometers or 28,270.65 square miles. The map and regulatory text in this document provide more detail regarding the location and boundaries of this area.

Section 7(a)(2) of the ESA requires Federal agencies, including NMFS, to insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. Federal agencies are also required to confer with NMFS regarding any actions likely to jeopardize the continued existence of any species proposed for listing under the ESA, or likely to destroy or adversely modify proposed critical habitat, pursuant to section 7(a)(4).

A conference involves informal discussions in which NMFS may recommend conservation measures to minimize or avoid adverse effects (50 CFR 402.02). The discussions and conservation recommendations are documented in a conference report provided to the Federal agency (50 CFR 402.10(e)). If requested by the Federal agency and deemed appropriate by NMFS, the conference may be conducted following the procedures for formal consultation in 50 CFR 402.14, and NMFS may issue an opinion at the conclusion of the conference. This opinion may be adopted as the biological opinion when the species is listed or critical habitat designated if no significant new information or changes to the action alter the content of the opinion (50 CFR 402.10(d)).

When a species is listed or critical habitat is designated, Federal agencies must consult with NMFS on any agency actions that may affect a listed species or its critical habitat. During the consultation, we evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and issue our findings in a letter of concurrence or in a biological opinion. If we conclude in the biological opinion that the action would likely result in the destruction or adverse modification of critical habitat, we would also identify any reasonable and prudent alternatives to the action. Reasonable and prudent alternatives are defined in 50 CFR 402.02 as alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that we believe would avoid the likelihood of destruction or adverse modification of critical habitat.

Regulations at 50 CFR 402.16 require Federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where: (1) Critical habitat is subsequently designated that may be affected by the identified action; or (2) New information or changes to the action may result in effects to critical habitat in a manner or to an extent not previously considered. Consequently, some Federal agencies may request reinitiation of consultation or conference with NMFS on actions that may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Activities subject to the ESA section 7 consultation process are those activities authorized, funded, or carried out by Federal action agencies, whether on Federal, state, or private lands or waters. ESA section 7 consultation would not be required for Federal actions that do not affect listed species or critical habitat and for actions that are not federally funded, authorized, or carried out.

Section 4(b)(8) of the ESA requires that we describe briefly and evaluate in any proposed or final regulation to designate critical habitat those activities, whether public or private, that may adversely modify such habitat or that may be affected by such designation. As described in our Endangered Species Act Critical Habitat Report, a wide variety of Federal activities may require ESA section 7 consultation because they may affect the essential feature of Rice's whale critical habitat. Specific future activities will need to be evaluated with respect to their potential to destroy or adversely modify critical habitat, in addition to their potential to affect and jeopardize the continued existence of listed species. For example, activities may adversely modify the continental shelf and slope associated waters by destroying or altering the habitat. These activities, whether public or private, would require ESA section 7 consultation when they are authorized, funded, or carried out by a Federal agency. A private entity may also be affected by proposed critical habitat designations if it is a proponent of a project that requires a Federal permit or receives Federal funding. Categories of activities that may be affected through section 7 consultation by designating Rice's whale critical habitat include oil and exploration and development, renewable energy development, fishery management, military activities, water quality management, scientific research and monitoring, space vehicle launches and reentry, and in-water construction.

Questions regarding whether specific activities may constitute destruction or adverse modification of critical habitat should be directed to us (see ADDRESSES and FOR FURTHER INFORMATION CONTACT ).

Identifying the extent or severity of an impact on the essential feature at which the conservation value of habitat for the listed species may be affected is inherently complex. Consequently, the actual responses of the critical habitat to effects to the essential feature resulting from future Federal actions will be case- and site-specific, and predicting such responses will require case- and site-specific data and analyses.

We request that interested persons submit comments, information, and data concerning this proposed rule during the comment period (see DATES ). We are soliciting comments from the public, other concerned governments and agencies, the scientific community, industry, or any other interested party concerning the areas proposed for designation and appropriateness and description of the essential feature. Specifically, we seek public comments concerning the attributes of the proposed essential feature. We also solicit comments regarding specific, probable benefits and impacts stemming from this designation, including any estimates of incremental impacts. We also request comment on any projects or activities that may be affected or delayed by this designation, and the assumption that consultations will not result in project modifications. We also seek comments on the identified geographic area occupied by the species and the potential benefits to the species from this designation or alternative designations. We seek information that would assist in further characterizing environmental parameters important to Rice's whales. We seek information about any additional sightings or areas that may support Rice's whales not addressed in this proposed rule or supporting information. We seek any additional information about strandings or other historical records of Bryde's-like whales in the Gulf of Mexico or Atlantic Ocean.

You may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES ). We will consider all comments pertaining to these designations received during the comment period in preparing the final rule. Accordingly, the final designation may differ from this proposal.

The data and analyses supporting this proposed action have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (Section 515 of Pub. L. 106-554). On December 16, 2004, OMB issued its Final Information Quality Bulletin for Peer Review (Bulletin). The Bulletin was published in the Federal Register on January 14, 2005 (70 FR 2664), and all of the requirements were effective by June 16, 2005. The primary purpose of the Bulletin is to improve the quality and credibility of scientific information disseminated by the Federal government by requiring peer review of “influential scientific information” and “highly influential scientific assessments” prior to public dissemination. “Influential scientific information” is defined as information that the agency reasonably can determine will have or does have a clear and substantial impact on important public policies or private sector decisions. The Bulletin provides agencies broad discretion in determining the appropriate process and level of peer review of influential scientific information. Stricter standards were established for the peer review of highly influential scientific assessments, defined as information whose dissemination could have a potential impact of more than $500 million in any one year on either the public or private sector or for which the dissemination is novel, controversial, or precedent-setting, or has significant interagency interest.

The information in the Endangered Species Act Critical Habitat Report supporting this proposed critical habitat rule is considered influential scientific information and was thus subjected to peer review. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the biological information in the Endangered Species Act Critical Habitat Report and incorporated the peer review comments into the report prior to dissemination of this proposed rulemaking. Comments received from peer reviewers are available on our website at https://www.noaa.gov/information-technology/endangered-species-act-critical-habitat-report-rices-whale-id452.

Under E.O. 12630, Federal agencies must consider the effects of their actions on constitutionally protected private property rights and avoid unnecessary takings of private property. A taking of property includes actions that result in physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use. In accordance with E.O. 12630, this proposed rule would not have significant takings implications. A takings implication assessment is not required. These designations would affect only Federal agency actions ( i.e., those actions authorized, funded, or carried out by Federal agencies). Therefore, the critical habitat designation does not affect landowner actions that do not require Federal funding or permits.

This proposed rule has been determined to be significant for purposes of E.O. 12866 review. A report evaluating the economic impacts of the proposed rule has been prepared and is included in the Endangered Species Act Critical Habitat Report, incorporating the principles of E.O. 12866. Based on the economic impacts evaluation in the Endangered Species Act Critical Habitat Report, total incremental costs resulting from the critical habitat are approximately $240,000 over the next 10 years ($37,000 annualized), applying a discount rate of 7 percent.

Executive Order 13132 requires agencies to ensure state and local officials have the opportunity for meaningful and timely input when developing regulatory policies that have federalism implications. Policies that have federalism implications are those with substantial, direct effect on the states, on the relationship between the Federal government and the states, or on the distribution of power and responsibilities among the various levels of government. If the effects of the rule on local governments are sufficiently substantial, the agency must prepare a Federal assessment. Pursuant to the Executive Order on Federalism, E.O. 13132, we determined that this proposed rule does not have significant federalism effects and that a federalism assessment is not required. However, in keeping with Department of Commerce policies and consistent with ESA regulations at 50 CFR 424.16(c)(1)(ii), we will request information for this proposed rule from state and territorial resource agencies in Florida, Alabama, Mississippi, Louisiana, and Texas. The proposed designation may have some benefit to state and local resource agencies in that the proposed rule clearly defines the essential feature and the areas in which that feature is found. Clear definitions and information about the critical habitat may help local governments plan for activities that may require ESA section 7 consultation.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking an action expected to lead to the promulgation of a final rule or regulation that is a significant regulatory action under E.O. 12866 and is likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule, if finalized, will not have a significant adverse effect on the supply, distribution, or use of energy. Therefore, we have not prepared a Statement of Energy Effects.

We prepared an initial regulatory flexibility analysis (IRFA) in accordance with section 603 of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601, et seq. ). The IRFA analyzes the impacts to small entities that may be affected by the proposed designations and is included as Appendix B of the Endangered Species Act Critical Habitat Report and is available upon request (see ADDRESSES section). We welcome public comment on this IRFA, which is summarized below, as required by section 603 of the RFA.

The IRFA uses the best available information to identify the potential impacts to small entities of designating critical habitat. However, a number of uncertainties complicate quantification of these impacts. These include (1) the fact that the manner in which potential impacts of critical habitat designations will be allocated between large and small entities is generally uncertain; and (2) as discussed in the main body of the economic report, there is uncertainty regarding the potential effects of critical habitat designation, and some categories of potential impacts that cannot be quantified must be described qualitatively.

The IRFA anticipates that the proposed critical habitat will result in negligible impacts to small entities. In-water construction is likely the only activity category for which a portion of incremental costs of the proposed rule would be borne by small entities, and the scope of in-water construction projects potentially undertaken by small entities is limited due to the 100 meter depth of the proposed critical habitat's shoreward boundary. Incremental costs of the proposed rule to activities other than in-water construction would likely be borne entirely by Federal agencies, which, by definition, are not small entities.

As documented in the Endangered Species Act Critical Habitat Report, incremental impacts of the proposed rule are expected to be limited to the administrative costs of addressing Rice's whale critical habitat in future section 7 consultations, as any project modifications to activities that may affect the proposed critical habitat are expected to be required absent designation. The forecast of section 7 consultations that would consider effects specific to Rice's whale critical habitat over the next 10 years includes consultation on approximately one in-water construction project over the 10 years. Based on assumed administrative costs of consultation to third parties, this would result in an average annualized cost of $250 to the third party involved in the project. This average annualized cost represents the maximum potential impact of the proposed rule to small entities, as determined by the IRFA. This is reasonable given (1) as noted above, the nearshore boundary of the proposed critical habitat is the 100-meter isobath and well offshore of coastal areas where most in-water construction activity that involves small entities occurs and (2) the section 7 consultation history for 2010 through 2021 includes only one U.S. Army Corps of Engineers-permitted in-water construction project within the proposed critical habitat area. Based on this analysis, the IRFA concludes that the proposed designation of critical habitat for the Rice's whale would result in negligible impacts to small entities.

The proposed rule will not duplicate or conflict with any other laws or regulations. However, other aspects of the ESA may overlap with the proposed critical habitat designation. For instance, listing of the Rice's whale under the ESA requires Federal agencies to consult with NMFS to ensure against jeopardy to the species. Overlap of the presence of other ESA-listed species, including ESA-listed whales and sea turtles, and critical habitat designated for the Northwest Atlantic Ocean Distinct Population Segment of the loggerhead sea turtle with the areas proposed for critical habitat designation protects the essential feature of the proposed critical habitat to the extent that projects or activities that may adversely affect the proposed critical habitat also pose a threat to the listed species or to loggerhead sea turtle critical habitat.

The RFA requires consideration of significant alternatives that would minimize impacts to small entities. We considered three alternatives when developing the proposed critical habitat rule: (1) a no action alternative that would not designate critical habitat (status quo), (2) our proposed critical habitat designation (the preferred alternative), and (3) a critical habitat designation with different geographic boundaries.

Under the no action alternative (status quo), we considered not designating critical habitat for the Rice's whale. Under this alternative, conservation and recovery of the listed species would depend exclusively upon the protection provided under the “jeopardy” provisions of section 7 of the ESA. This alternative would impose no additional economic, national security, or other relevant impacts. However, after compiling and reviewing the biological information for the Rice's whale, we have determined that the physical and biological feature forming the basis for our critical habitat designation is essential to the Rice's whale's conservation, and conservation of the species will not succeed without this feature being available. Thus, the lack of protection of the critical habitat feature from adverse modification could result in continued declines in abundance of Rice's whale, and loss of associated economic and other biodiversity values the whale provides. Thus, the no action alternative is not necessarily a “no cost” alternative for small entities. Moreover, this option would not be legally viable under section 4 of the ESA, which specifically requires that we designate critical habitat to the maximum extent prudent and determinable based on consideration of the best available scientific information.

Under the preferred alternative, we would designate the area ranging from the 100 m isobath to the 400 m isobath in GOMx waters from the Texas-Mexico border east to the boundary between the South Atlantic Fishery Management Council and the Gulf of Mexico Fishery Management Council (50 CFR 600.105(c)) off of Florida. This area contains the physical and biological feature essential to the conservation of Rice's whales. The preferred alternative was selected because it implements the critical habitat provisions of the ESA by including the feature we believe is essential to the conservation of the species based on the best available scientific information on the Rice's whale and offers greater conservation benefits relative to either of the other alternatives.

Under the third alternative that would have delineated different geographic boundaries, we would propose to designate a smaller area within the GOMx as critical habitat. Under section 4(b)(2) of the ESA, NMFS has the discretion to exclude a particular area from designation as critical habitat even though it meets the definition of “critical habitat” if the benefits of exclusion ( i.e., the impacts that would be avoided if an area were excluded from the designation) outweigh the benefits of designation ( i.e., the conservation benefits to the Rice's whale if an area were designated), as long as exclusion of the area will not result in extinction of the species. However, following our consideration of probable national security, economic, and other relevant impacts of designating all the specific areas, we rejected this alternative. We determined that the benefits of excluding any particular areas ranging from the 100 m isobath to the 400 m isobath in GOMx waters from the Texas-Mexico border east to the boundary between the South Atlantic Fishery Management Council and the Gulf of Mexico Fishery Management Council (50 CFR 600.105(c)) off of Florida did not outweigh the conservation benefits of designating those areas. Thus, this alternative was rejected in favor of the preferred alternative.

We have determined that this action will have no reasonably foreseeable effects on coastal uses or resources under the CZMA in Florida, Alabama, Mississippi, Louisiana, and Texas. Upon publication of this proposed rule, these determinations will be submitted to responsible State agencies for review under section 307 of the Coastal Zone Management Act.

This proposed rule does not contain any new or revised collection of information requirements. This rule, if adopted, would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. Therefore, the Paperwork Reduction Act does not apply.

This proposed rule will not produce a Federal mandate. The designation of critical habitat does not impose a legally-binding duty on non-Federal government entities or private parties. The only regulatory effect is that Federal agencies must ensure that their actions are not likely to destroy or adversely modify critical habitat under section 7 of the ESA. Non-Federal entities that receive Federal funding, assistance, permits or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, but the Federal agency has the legally binding duty to avoid destruction or adverse modification of critical habitat. We do not anticipate that this rule, if finalized, will significantly or uniquely affect small governments. Therefore, a Small Government Action Plan is not required.

The longstanding and distinctive relationship between the Federal and tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate tribal governments from the other entities that deal with, or are affected by, the Federal Government.

This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Tribal Nations and with respect to tribal lands, tribal trust resources, and the exercise of tribal rights. Pursuant to these authorities, lands have been retained by Tribal Nations or have been set aside for tribal use. These lands are managed by Tribal Nations in accordance with tribal goals and objectives within the framework of applicable treaties and laws. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, outlines the responsibilities of the Federal Government in matters affecting tribal interests.

In developing this proposed rule, we reviewed maps and did not identify any areas under consideration for critical habitat that overlap with tribal lands. Based on this, we preliminarily found the proposed critical habitat does not have tribal implications.

A complete list of all references cited in this rulemaking can be found on our website at https://www.fisheries.noaa.gov/species/rices-whale#conservation-management and is available upon request from NMFS (see ADDRESSES ).

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 224 and 226 as follows: