[Federal Register Volume 88, Number 140 (Monday, July 24, 2023)]
[Proposed Rules]
[Pages 47453-47472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15187]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 224 and 226
[Docket No. 230711-0164]
RIN 0648-BL86
Endangered and Threatened Species; Designation of Critical
Habitat for the Rice's Whale
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments and notice of public
hearing.
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SUMMARY: We, NMFS, propose to designate critical habitat for the Rice's
whale (Balaenoptera ricei) by designating waters from the 100 meter (m)
isobath to the 400 m isobath in the Gulf of Mexico (GOMx), pursuant to
section 4 of the Endangered Species Act (ESA). We have considered
economic, national security, and other relevant impacts of the proposed
designation. We are not excluding any particular area from the critical
habitat designation. We seek comments on all aspects of the proposed
critical habitat designation and will consider information received
before issuing a final designation.
DATES:
Comments due: Written comments and information must be received by
September 22, 2023.
[[Page 47454]]
Public hearings: Virtual public hearings will be held on August 24,
2023, and August 30, 2023. Requests for additional public hearings must
be made in writing by September 7, 2023.
ADDRESSES: You may submit data, information, or comments on this
document, identified by NOAA-NMFS-2023-0028, as well as the supporting
documents, by the following methods:
Electronic Submission: Submit all electronic comments via
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and
enter NOAA-NMFS-2023-0028. Click on the ``Comment'' icon and complete
the required fields. Enter or attach your comments.
Mail: Submit written comments to Assistant Regional
Administrator, Protected Resources Division, NMFS, Southeast Regional
Office, 263 13th Avenue South, St. Petersburg, FL 33701.
Instructions: NMFS may not consider comments sent by any other
method, to any other address or individual, or received after the end
of the comment period. All comments received are a part of the public
record and generally will be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address), confidential business information,
or otherwise sensitive information submitted voluntarily by the sender
will be publicly accessible. NMFS will accept anonymous comments (enter
``N/A'' in the required fields if you wish to remain anonymous).
Attachments to electronic comments will be accepted in Microsoft Word,
Excel, or Adobe portable document format (PDF) formats only.
Details on the virtual public hearings will be made available on
our website at: https://www.fisheries.noaa.gov/species/rices-whale#conservation-management. The Endangered Species Act Critical
Habitat Report, GIS data, and maps that were prepared to support the
development of this proposed rule are available on our website at:
https://www.fisheries.noaa.gov/species/rices-whale#conservation-management. Previous rulemaking documents related to the listing of the
species can also be obtained electronically on our website at: https://www.fisheries.noaa.gov/species/rices-whale#conservation-management.
FOR FURTHER INFORMATION CONTACT: Grant Baysinger, NMFS Southeast
Region, (727) 551-5790; or Lisa Manning, NMFS Office of Protected
Resources, (301) 427-8466.
SUPPLEMENTARY INFORMATION:
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
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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.
Species Description and Life History
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
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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.
Vocalizations and Sound
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 [micro]Pa) 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; [Scaron]irovi[cacute] et al., 2014). In the GOMx,
[Scaron]irovi[cacute] 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. [Scaron]irovi[cacute] 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.
Distribution, Movement, and Habitat Use
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),
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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
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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.
Diet and Foraging
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
[[Page 47459]]
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 [delta]\13\C and
[delta]\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.
Abundance
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
[[Page 47460]]
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).
Critical Habitat Identification
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.
Geographical Area Occupied by the Species
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.
Physical or Biological Features Essential for Conservation
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).
[[Page 47461]]
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).
Need for Special Management Considerations or Protection
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
[[Page 47462]]
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.
Specific Areas Within the Geographic Area Occupied by the Species
Containing the Essential Feature
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.
Areas Outside of the Geographical Areas Occupied by the Species at the
Time of Listing That Are Essential for Conservation
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
[[Page 47463]]
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.
Application of ESA Section 4(a)(3)(B)(i) (Military Lands)
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.
Analysis of Impacts Under ESA Section 4(b)(2)
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)
[[Page 47464]]
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
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:
Oil and gas exploration and development
Commercial fishery management
Military activities
Water quality management
Scientific research and monitoring
Space vehicle launch and reentry
In-water construction
Aquaculture
Vessel traffic
Renewable energy development
Activities that lead to or address greenhouse gas emissions or
global climate change
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
[[Page 47465]]
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.
Administrative Section 7 Costs
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.
Table 1--Projected Incremental Costs of Rice's Whale Critical Habitat Designation by Activity Type, 2023-2032
[2022 Dollars]
----------------------------------------------------------------------------------------------------------------
Total cost (7 percent
Activity discount rate) Annualized cost
----------------------------------------------------------------------------------------------------------------
Oil and Gas Activities................................ $53,000 $8,100
Renewable Energy...................................... 24,000 3,700
Fishery Management.................................... 52,000 7,900
Military.............................................. 36,000 5,500
[[Page 47466]]
Water Quality......................................... 41,000 6,200
Scientific Research and Monitoring.................... 18,000 2,800
Space Vehicle Launch and Reentry...................... 16,000 2,400
Construction.......................................... 1,700 250
---------------------------------------------------------
Total............................................. 240,000 37,000
----------------------------------------------------------------------------------------------------------------
Note: The estimates may not sum to the totals reported due to rounding.
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.
National Security Impacts
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.
Other Relevant Impacts
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.
Conservation Benefits
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
[[Page 47467]]
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.
Impacts to Governmental and Private Entities With Existing Management
Plans Benefitting the Listed Species
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.
Education and Awareness Benefits
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.
Exclusions Under Section 4(b)(2)
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.
Proposed Critical Habitat Designation
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.
Occupied Critical Habitat Unit Description
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
[[Page 47468]]
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.
Effects of Critical Habitat Designation
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.
Activities That May Be Affected
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.
Public Comments Solicited
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
[[Page 47469]]
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.
Information Quality Act and Peer Review
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.
Classification
Takings (Executive Order 12630)
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.
Regulatory Planning and Review (Executive Order 12866)
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.
Federalism (Executive Order 13132)
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.
Energy Supply, Distribution, and Use (Executive Order 13211)
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.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)/Initial Regulatory
Flexibility Analysis (IRFA)
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.
[[Page 47470]]
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.
Coastal Zone Management Act
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.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
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
[[Page 47471]]
organizations. Therefore, the Paperwork Reduction Act does not apply.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
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.
Consultation and Coordination With Indian Tribal Governments (Executive
Order 13175)
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.
References Cited
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).
List of Subjects
50 CFR Part 224
Endangered and threatened species, Exports, Imports,
Transportation.
50 CFR Part 226
Endangered and threatened species.
Dated: July 13, 2023.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR parts 224 and 226 as follows:
PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 224 continues to read as follows:
Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.
0
2. In Sec. 224.101 amend paragraph (h) by revising the entry for
``Whale, Rice's'' to read as follows:
Sec. 224.101 Enumeration of endangered marine and anadromous species.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Species \1\
----------------------------------------------------------------- Citation(s) for Critical
Description of listing habitat ESA rules
Common name Scientific name listed entity determination(s)
----------------------------------------------------------------------------------------------------------------
Marine Mammals
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Whale, Rice's................ Balaenoptera Entire species. 84 FR 15446, 226.230 NA.
ricei. April 15, 2019.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
FR 58612, November 20, 1991).
PART 226--DESIGNATED CRITICAL HABITAT
0
3. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
4. Add Sec. 226.230 to read as follows:
Sec. 226.230 Critical habitat for the Rice's whale (Balaenoptera
ricei).
Critical habitat is designated for the Rice's whale as described in
this section. The maps, clarified by the textual descriptions in this
section, are the definitive source for determining the critical habitat
boundaries.
(a) Critical habitat boundaries. Critical habitat for the Rice's
whale includes all marine waters from a nearshore boundary
corresponding to the 100-meter isobath to an offshore boundary
corresponding to the 400-meter isobath in the Gulf of Mexico and
between 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.
(b) Essential feature. The feature essential to the conservation of
the Rice's whale is the Gulf of Mexico continental shelf and slope
associated waters between the 100 and 400-meter 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 Gulf of Mexico
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
[[Page 47472]]
demersal and vertically migrating prey species, including
scombriformes, stomiiformes, myctophiformes, and myopsida;
(2) Marine water with elevated productivity, bottom temperatures of
10-19 degrees Celsius, and 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.
(c) Map. Critical habitat map--an overview map of the proposed
critical habitat follows. Key points are identified and depth
information provided.
BILLING CODE 3510-22-P
Figure 1 to paragraph (c)
[GRAPHIC] [TIFF OMITTED] TP24JY23.000
[FR Doc. 2023-15187 Filed 7-21-23; 8:45 am]
BILLING CODE 3510-22-C