[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.

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    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

[[Page 47456]]

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),

[[Page 47457]]

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