Request for Comments: Proposed Rule to Designate Critical Habitat for Endangered Rice’s Whales (0648-BL86)

Key Message:

NOAA Fisheries announces a proposed rule to designate critical habitat for the endangered Rice’s whale under the Endangered Species Act (ESA), and we (NOAA Fisheries) are requesting public comments on our proposal. The proposed critical habitat includes Gulf of Mexico waters between 100 and 400 meters depth that are essential to the conservation of the Rice’s whale, supporting their individual growth, reproduction, and development; social behavior; and overall population growth. This critical habitat would guide federal agencies in avoiding and minimizing impacts to habitat critical to the recovery of the Rice’s whale. The proposed designation does not create any new regulations or restrictions on fisheries. Only federal agencies are directly affected by a critical habitat designation; non-federal entities may be affected if their activities involve federal funding, permitting, or authorization.

Comments are due by September 22, 2023

Summary of the Proposed Rule:

• The ESA requires us to designate critical habitat to the maximum extent prudent and determinable to support recovery of species listed under the Act. In 2019, we listed the Rice’s whale as endangered under the ESA, which triggered the requirement to also designate critical habitat.
• The specific occupied area proposed for designation as critical habitat contains approximately 28,270 square miles of continental shelf and slope associated waters within the Gulf of Mexico and lies between the 100-400 meter isobaths.
• The following attributes influence the value of the critical habitat to the conservation of the species:
  • Sufficient density, quality, abundance, and accessibility of small demersal and vertically migrating prey species, including scombriformes, stomiiformes, myctophiformes, and myopsida;
  • Marine water with elevated productivity, bottom temperatures of 10-19 degrees Celcius, and levels of pollutants that do not preclude or inhibit any demographic function; and
  • Sufficiently quiet conditions for normal use and occupancy, including intraspecific communication, navigation, and detection of prey, predators, and other threats.
• This critical habitat would guide federal agencies in avoiding and minimizing impacts to habitat critical to the recovery of the Rice’s whale. Federal agencies would be required to ensure that any activity that they conduct, fund, or authorize does not destroy or adversely modify the species’ critical habitat.
• The proposed designation does not create any new regulations or restrictions on fisheries.

How To Comment On The Proposed Rule:

We are announcing a 60-day public comment period and will hold two virtual public hearings. Because the hearings will be held online, the public can join by internet or phone regardless of location. The comment period will be open July 24, 2023 through September 22, 2023. You may submit comments by electronic submission or by postal mail, or by providing oral comments during one of the public hearings.  In the event there is a large audience, the time allotted per individual for oral comments may be limited. Therefore, anyone wishing to make an oral statement at a public hearing for the record is encouraged to prepare a written copy of their comments. Written comments may be submitted at any time during the relevant public comment period by following the instructions provided below. Comments sent by any other method (such as e-mail), to any other address or individual, or received after the end of the comment period, may not be considered by NOAA Fisheries.

• The first public hearing on the proposed rule will be held online on August 24, 2023, from 7:00pm to 9:00pm (Eastern Daylight Savings Time).
• The second public hearing on the proposed rule will be held online on August 30, 2023, from 3:00pm to 5:00pm (Eastern Daylight Savings Time).
• You can join the virtual public hearing online or by phone (for audio only), as specified on this website: https://www.fisheries.noaa.gov/species/rices-whale#conservation-management.

Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal: 

1. Beginning on July 24, 2023, go to https://www.regulations.gov and enter NOAA-NMFS-2023-0028.

2. Click on the “Comment” icon and complete the required fields.

3. Enter or attach your comments.

Mail: Submit written comments to Grant Baysinger, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701.

Frequently Asked Questions (FAQs)

Why is NOAA Fisheries proposing to designate critical habitat for the Rice’s whale?

The ESA requires that we designate critical habitat, to the maximum extent prudent and determinable, when a species is listed under the ESA. The Rice’s whale was listed as an endangered species under the ESA in 2019. At that time, however, critical habitat was not yet determinable. In 2020, a complaint was filed seeking an order to compel NOAA Fisheries to designate critical habitat, and pursuant to the settlement agreement NOAA Fisheries was required to submit a proposed rule to the Federal Register in July 2023. Based on significant new scientific information that has become available since the species was listed in 2019, we were able to determine what areas qualify as critical habitat for this species, and are now proposing to designate critical habitat in the Gulf of Mexico.

What is critical habitat?

“Critical habitat is defined in section 3(5)(A) of the ESA (16 U.S.C. 1532 (5)) 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 that such areas are essential for the conservation of the species.

“Conservation” is also defined in section 3 of the ESA and includes any actions necessary to recover the species.

Why is critical habitat important?

Critical habitat identifies important habitats and areas needed by listed species. Once critical habitat is designated, federal agencies must take precautions to ensure that the activities they fund, authorize (permit), or carry out don’t destroy or adversely modify the critical habitat. Thus, critical habitat serves as another tool that federal agencies use to help fulfill their responsibilities under the ESA to conserve and recover threatened and endangered species. 

Who will be affected by a critical habitat designation?

Critical habitat affects federal agencies whose actions and/or projects may affect the designated area. However, activities that receive federal funding or require a federal permit could be affected, because the federal agency that provides the funding or issues the permit would have to consult with NOAA Fisheries to ensure that the action would not destroy or adversely modify the critical habitat. Critical habitat does not directly affect citizens engaged in recreational activities, such as recreational boating and fishing, or limit their access to the critical habitat area.

How could this critical habitat affect Endangered Species Act consultations?

Under section 7 of the ESA, Federal agencies are required to consult with NOAA Fisheries on actions that may affect listed species as well as any designated critical habitat to ensure that their actions are not likely to jeopardize the continued existence of listed species or destroy or adversely modified the designated critical habitat. Federal agencies are thus already required to consult with NOAA Fisheries on actions that may affect the Rice’s whales. The proposed rule to designate critical habitat for Rice’s whales includes areas that are within the occupied range of the whales and does not include areas outside their occupied range. Therefore, we do not anticipate any major changes to the universe of federal consultations. In addition, we consider it unlikely that the designation of critical habitat for the Rice’s whale would result in modifications to federal actions beyond those that would already be required to avoid jeopardizing the whales, as well as other ESA-listed species and critical habitat.

Is the proposed critical habitat designation related to the recent Rice’s whale vessel speed petition?

No, the proposed critical habitat designation and the Rice’s whale vessel speed petition are unrelated actions. Critical habitat is designated under the ESA, and the requirement to designate critical habitat for the Rice’s whale was triggered by its 2019 listing as an endangered species under the ESA. On May 11, 2021, NOAA Fisheries received a petition pursuant to the Administrative Procedure Act requesting that we utilize our authorities under the ESA and Marine Mammal Protection Act (MMPA) to establish a year-round 10-knot vessel speed limit in the Gulf of Mexico and other vessel-related mitigation measures in an area referred to as core habitat. The 90 day public comment period on the notice of petition closed on July 6, 2023 and we received over 75,000 public comments. NOAA Fisheries will consider these public comments and available information before determining whether to proceed with a rulemaking to propose any vessel-related regulations. Any such future rulemaking would be separate and distinct from the current proposed rule to designate critical habitat.

Where can I find more information on the proposed rule to designate critical habitat for the Rice’s whale?

• Contact NOAA Fisheries, Southeast Regional Office

By Mail: Grant Baysinger

NOAA Fisheries, Southeast Regional Office

Protected Resources Division

263 13th Avenue South

St. Petersburg, Florida 33701-5505

By Phone: (727) 551-5790

• The proposed rule, Endangered Species Act Critical Habitat Report, GIS data, and maps that were prepared to support the development of the proposed rule to designate critical habitat for the Rice’s whale may be found online at the NOAA Fisheries Website at:  https://www.fisheries.noaa.gov/species/rices-whale#conservation-management.

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