Tuberville Calls on Biden Administration to Rescind Disastrous Rule that Threatens Economic Stability for Alabama’s Coastal Businesses  

WASHINGTON — U.S. Senator Tommy Tuberville (R-AL) today called on the Biden administration to rescind its proposed rule to establish a 28,000-square-mile Critical Habitat for the Rice’s whale within the Gulf of Mexico despite a lack of evidence presenting the need for such a protected area. In a letter to National Oceanic and Atmospheric Administration (NOAA) Director Richard Spinrad and Bureau of Ocean Energy Management Director Liz Klein, Senator Tuberville cited the severe economic impacts the rule would have for Alabama businesses and the oil and gas industry along the Gulf. 

“Designating a Critical Habitat for the Rice’s whale throughout this expansive area will impose undue burdens and restrictions on all vessel traffic, especially in and out of the Port of Mobile in Mobile, AL,” said Senator Tuberville. “The Port of Mobile covers over 4,000 acres, generates nearly 313,000 jobs, provides approximately $2 billion in state and local tax impacts, and $85 billion in economic value to Alabama as a whole.”

“Requiring all lessees and operators to comply with reduced speeds of 10-knots or less and preventing them from traveling after dusk and before dawn within the designated areas will detrimentally impact our nation’s ability to domestically produce oil and gas in hopes of becoming energy independent.”

The Alabama Port Authority, Consumer Energy Alliance (CEA), and National Ocean Industries Association (NOIA), all praised Senator Tuberville’s efforts.

“Whether cars and fuel or forest products and steel, the State of Alabama and its Port are critical players in the global supply chain,” said Maggie Oliver, Vice President of Communications and Federal Affairs. “Federal advocacy on this issue is key to preventing a rule that, if implemented, would bring operations at the Port of Mobile to a virtual standstill and upend the delivery of consumer goods and energy resources nationwide.  Any potential rulemaking should be structured so as not to impede economic development in Alabama nor hinder our nation’s economic competitiveness globally.”

“CEA thanks Senator Tuberville for urging NOAA and BOEM to drop the proposed expanded critical habitat designation for the Rice’s Whale in the Gulf of Mexico. Without more clear scientific data, this expanded designation is not warranted and would be unprecedented due the lack of scientific evidence and overwhelming economic impact,” CEA Vice President Kaitlin Hammons said. “The proposed expansion of the area and the punitive, burdensome and chilling restrictions it places on all vessel traffic and U.S. commerce – with especially arbitrary and onerous additional restrictions on natural gas and oil vessels – is a clear sign that ideology and not wildlife conservation has driven this proposal. Combined with the delayed five-year leasing plan, the U.S. will be needlessly hampered in its ability to supply natural gas and oil at a time when Saudi Arabia and Russia have extended production cuts through the end of 2023. With gasoline prices on the rise and the Strategic Petroleum Reserve drained, that is a recipe for economic failure. American families and small businesses cannot afford to have an essential industry financially punished because of backroom deals struck with organizations that use litigation to get what they can’t get by legislation.”

“Senator Tuberville is standing up for Gulf of Mexico energy workers and the entire Gulf economy,” said National Ocean Industries Association President Erik Milito. “The Gulf of Mexico oil and gas industry is responsible for hundreds of thousands of high-paying jobs and production of some of the world’s least carbon-intensive barrels. There is noted lack of ample scientific evidence supporting the expansion of the Rice’s Whale protected area. The proposal locks away the vast benefits of the Gulf of Mexico while diluting critical conservation resources for the core habitat area. Moreover, this may be the first step expanding arbitrary restrictions to other ocean users and industries imposing disruptions to the full Gulf Coast economy and reverberating throughout the whole U.S. economy. NOIA applauds the leadership of Senator Tuberville on this issues of national importance.”


According to NOAA, there are approximately 51 Rice’s whales left in existence, deeming them endangered and in need of certain protections covered by the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). Rice’s whales are located in the northeastern Gulf of Mexico between 100- and 400- meters in depth. Their specific locations and habitat are unclear, citing the need for more scientific research and analyses on the whales’ existence.

The Biden administration has taken numerous actions claiming to protect the Rice’s whales at the expense of our nation’s economic interests.Last week, the Gulf Outer Continental Shelf (OCS) Oil and Gas Lease Sale 261 (GOM Lease Sale 261) Final Notice of Sale was posted, as required under the Inflation Reduction Act, but with over 6.3 million acres removed from the sale due to potential presence of the Rice’s whale. Additionally, various restrictions have been imposed on all vessels, including a dedicated crew member to watch for whales; speed limits; use of automatic identification system for vessels of a certain size; and to the maximum extent practicable, avoid transit through the Expanded Rice’s Whale Area after dusk and before dawn, and during other times of low visibility. This Administration continues to target the oil and gas industry, inhibiting the ability of our nation to become energy independent.

Complete text of the letter can be found here or below. 

Thursday, September 7, 2023

Dear Administrator Spinrad and Director Klein:

I write in opposition to the National Oceanic and Atmospheric Administration’s (NOAA) proposed rule, “Endangered and Threatened Species; Designation of Critical Habitat for the Rice’s Whale.” The Biden administration’s overly aggressive efforts to protect the Rice’s whale will cause severe and unnecessary burdens to supply chains, fishing and boating industries, and critical energy production within the Gulf of Mexico (Gulf). I request the immediate withdrawal of NOAA’s proposed rule.

As you know, Rice’s whales are already afforded protections under the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA). According to NOAA Fisheries, Rice’s whales are found in the Gulf between 100 and 400 meters in depth. However, the exact number and their location have not been determined.NOAA’s most recent surveys, which claim there are approximately fifty Rice’s whales in the Gulf, occurred in 2017 and 2018. Historically, however, only one of these whales has ever been identified off the coast of Texas. The survey data from NOAA is five years old and seemingly outdated, leading to questions on the current habitat and specific locations of Rice’s whales along the Gulf. Considering the lack of scientific evidence regarding the presence of the whales, an expansion of their Critical Habit area is unjustified. 

NOAA’s proposed rule, which was published in the Federal Register on July 24, 2023, aims to appease environmental and animal rights activists through the establishment of a Critical Habitat. This designation would establish a Critical Habitat between a 100- and 400-meter isobath in the Gulf stretching from Pensacola, FL, to the Texas/Mexico border. This broad range would cover approximately 28,000 square miles. Agencies tasked with regulating offshore development have repeatedly concluded that there is not enough available information to designate a Critical Habitat for the Rice’s whale outside of its Core Habitat area in the northeastern Gulf. In its January 2023 Final Environmental Impact Statement for Offshore Lease Sales 259 and 261, the Bureau of Ocean Energy Management (BOEM) did not find enough data on the general distributions and migrations of the Rice’s whale to expand its habitat beyond this Core Habitat area. I urge you to conduct more scientific research and analysis on the whales’ presence before establishing any rulemaking affecting commercial industries in waters off the Gulf, such as maritime carriers transporting critical freight and offshore oil and gas drilling.

Designating a Critical Habitat for the Rice’s whale throughout this expansive area will result in extreme burdens and gratuitous restrictions on all vessel traffic, especially in and out of the Port of Mobile in Mobile, AL. The Port of Mobile covers over 4,000 acres, generates nearly 313,000 jobs, provides approximately $2 billion in state and local tax impacts, and $85 billion in economic value to Alabama as a whole. The seaport handles over 55 million tons of international and domestic cargo for exporters and importers, making it the 11th largest port in the nation based on total tonnage. It is my understanding that these proposed Critical Habitat restrictions will include imposing a year-round vessel speed restriction of 10-knots, preventing vessel transits at night and during periods of low visibility, and requiring detailed reports to the agency of any activity or plans to travel through the area for all vessels, regardless of size. This unwarranted federal action will greatly inhibit supply chains, freight transportation, and economic activity in my state and across the entire Gulf.

NOAA has failed to put forward any documentation deeming recreational vessels, or specific size vessels, especially those under 35 feet, to be of heightened concern to the whales’ existence. There are no guarantees that the proposed restrictions will improve the whales’ resilience or livelihood within the Gulf. In fact, a 2020 Biological Opinion developed by BOEM and National Marine Fisheries Service (NMFS) agreed that the potential for vessel strikes on Rice’s whales is improbable, citing the already-slow transiting and surveying speeds imposed on large vessels, and additional mitigation measures imposed on vessels navigating the Gulf. I am greatly concerned that the reduced speeds and prevention of transiting Gulf waters at night will continue expanding to additional areas of the Gulf, parallel to regulations established to protect the Right whale. Continued expansion would substantially disrupt economic prosperity, tourism, transportation, and our national defense.

On July 21, 2023, the NMFS filed a Stipulated Stay Agreement with the Sierra Club and various environmental groups. On August 24, 2023, the court ruled to stay the Sierra Club v. NMFS case and for all parties to comply with the Stipulated Stay Agreement. The agreement significantly deters oil and gas drilling in the Gulf beginning with the Gulf Outer Continental Shelf (OCS) Oil and Gas Lease Sale 261 (GOM Lease Sale 261). Even though the Critical Habitat designation has not been finalized, the Notice to Lessees (NTL), Stipulated Stay Agreement, and BOEM Final Notice of Sale (FNOS) exclude the entire established Expanded Rice’s Whale Area, totaling over 6.3 million acres, from future oil and gas drilling in the Gulf. Of note, while NOAA and BOEM claim that the established Expanded Rice’s Whale Area excludes over 6.3 million acres from leasing, industry believes that closer to 10 million acres will be restricted. If not by design, it is suspiciously coincidental that there is no direct path from Gulf Coast shore bases or ports to deep waters that avoids traversing the Expanded Rice’s Whale Area. The uncertainty of the actual excluded acreage presents concerns that the expanded protection areas have been rushed through without proper feedback from industry and affected stakeholders.

Additionally, requiring all lessees and operators to comply with reduced speeds of 10-knots or less and preventing them from traveling after dusk and before dawn within the designated areas will detrimentally impact our nation’s ability to domestically produce oil and gas in hopes of becoming energy independent. Along with energy security concerns, there are serious safety concerns with these restrictions, particularly restricting nighttime operators, for the offshore oil and gas workforce. Furthermore, requiring all vessels to designate a crew member to monitor for whales, maintain a minimum of 500 meters from Rice’s whales, document every time they travel through the designated Expanded Rice’s Whale Area, and maintain the records for a three-year period is not feasible for the average boat operator. Operators who are already facing issues with labor, supply chains, and inflation, would be further detrimentally impacted by these onerous requirements. The restrictions from this agreement will effectively increase reliance on foreign nations for energy production while simultaneously reducing investment in our oil and gas production along the Gulf.

On August 25, 2023, following the BOEM FNOS for GOM Lease Sale 261, several environmental groups filed a lawsuit against the Department of the Interior to challenge the sale. Lease Sale 261 makes over 67 million acres in the Gulf available for oil and gas leasing and is required under law through the Inflation Reduction Act. The environmental groups cite National Environmental Policy Act (NEPA) violations of health threats, polluting, and climate impacts as their reasoning for the lawsuit, and then include Rice’s whale protections as an afterthought. Similar to what we have seen through the Expanded Rice’s Whale Area, which unfairly targets the oil and gas industry, the motivation of the recent lawsuit stems from a desire to eliminate fossil fuel production and usage in the Gulf, not conserve and protect the Rice’s whales’ existence.

Strikes on Rice’s whales are exceedingly unlikely given the restrictions already in place for Gulf vessel traffic. The addition of mandatory, burdensome “mitigation” efforts in the name of conservation will have detrimental impacts on Gulf and Mississippi River commerce that will far outweigh any benefit to the Rice’s whale species. The Endangered Species Act requires an acting agency’s Secretary to consider the economic impact of any Critical Habitat designation. Based on prior studies of Rice’s whale habitat, I believe that NOAA has failed to abide by its duty to weigh the economic harms that will result if this habitat designation is finalized. The proposed rulemaking from NOAA and the FNOS from BOEM will have negligible impact on conservation efforts to save Rice’s whales; however, it will disrupt supply chains, inhibit oil and gas production, and result in significant economic losses for Alabama and across the entire Gulf Coast. The lack of scientific evidence to support the Expanded Rice’s Whale Areas, Critical Habitat designation, and speed and nighttime transit restrictions highlight that this unnecessary proposed rule is little more than an attack on the oil and gas industry and commercial development to appease environmental activists. 

I request immediate withdrawal of the proposed rulemaking and revision of the Expanded Rice’s Whale Area to include the withdrawn acreage in future lease sales. Thank you for your attention to this important matter.


Tommy Tuberville

United States Senator

Senator Tommy Tuberville represents Alabama in the United States Senate and is a member of the Senate Armed Services, Agriculture, Veterans’ Affairs, and HELP Committees.