[Federal Register Volume 66, Number 25 (Tuesday, February 6, 2001)]
[Rules and Regulations]
[Pages 9146-9185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1342]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Final Determination of 
Critical Habitat for the Spectacled Eider; Final Rule

  Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF92


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the Spectacled Eider

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the spectacled eider (Somateria fischeri), a 
threatened species listed pursuant to the Endangered Species Act of 
1973, as amended (Act). Critical habitat for the spectacled eider 
includes areas on the Yukon-Kuskokwim Delta (Y-K Delta), in Norton 
Sound, Ledyard Bay, and the Bering Sea between St. Lawrence and St. 
Matthew Islands. These areas total approximately 10,098,827 hectares 
(100,988.3 square kilometers; 38,991.6 square miles; 24,954,638 acres).
    Section 4 of the Act requires us to consider economic and other 
impacts of specifying any particular area as critical habitat. We 
solicited data and comments from the public on all aspects of the 
proposed rule and economic analysis. Section 7 of the Act prohibits 
destruction or adverse modification of critical habitat by any activity 
funded, authorized, or carried out by any Federal agency.

DATES: The effective date of this rule is March 8, 2001.

FOR FURTHER INFORMATION CONTACT: Ann G. Rappoport, Field Supervisor, 
Anchorage Field Office, U.S. Fish and Wildlife Service, 605 West 4th 
Avenue, Room G-61, Anchorage, Alaska 99501 (telephone 907/271-2787 or 
toll-free 800/272-4174; facsimile 907/271-2786).

SUPPLEMENTARY INFORMATION:

Background

    The spectacled eider is a large sea duck, 52-56 centimeters long 
(20-22 inches). Sea ducks, waterfowl that spend at least part of their 
lives at sea or on large waterbodies, are a subgroup of the subfamily 
Anatinae, family Anatidae. Within each subfamily, taxonomists group the 
waterfowl species into tribes, but while Delacour and Mayr (1945) 
originally placed the eiders (Tribe Somaterini) in a separate tribe 
from other sea ducks (Tribe Mergini), Johnsgard (1960) and others have 
grouped them together under Tribe Mergini. The spectacled eider was 
first described by Brandt in 1847 as Fuligula fischeri, then later 
placed in the genera Lampronetta and Arctonetta, and finally under 
Somateria (American Ornithologists' Union 1983). The spectacled eider 
is one of three species in the genus Somateria. All Somateria species' 
ranges include the United States.
    In the winter and spring, adult male spectacled eiders are in 
breeding plumage with a black chest, white back, and pale green head 
with a long sloping forehead and black-rimmed white spectacle-like 
patches around the eyes. During the late summer and fall, males are 
mottled brown. Females and juveniles are mottled brown year-round with 
pale brown eye patches. Spectacled eiders are diving ducks that spend 
most of the year in marine waters where they primarily feed on bottom-
dwelling molluscs and crustaceans.

Geographic Range

    In the United States, spectacled eiders historically had a 
discontinuous nesting distribution from the Nushagak Peninsula in 
southwestern Alaska north to Barrow and east nearly to the Canadian 
border. Today two breeding populations remain in Alaska. The remainder 
of the species breeds in Arctic Russia. The species throughout its 
range, including the Arctic Russian population, is listed under the Act 
(16 U.S.C. 1531 et seq.) as threatened wherever it occurs.
    On the Y-K Delta, spectacled eiders breed mostly within 15 
kilometers (km) (9.3 statute miles (mi)) of the coast from Kigigak 
Island north to Kokechik Bay (Service 1996), with smaller numbers 
nesting south of Kigigak Island to Kwigillingok and north of Kokechik 
Bay to the mouth of Uwik Slough. The coastal fringe of the Y-K Delta is 
the only subarctic breeding habitat where spectacled eiders occur at 
high density (3.0-6.8 birds/square kilometer (km\2\), 1.2-2.6 birds/
square mile (mi\2\)) (Service 1996). Nesting on the Y-K Delta is 
restricted to the vegetated intertidal zone (areas dominated by low 
wet-sedge and grass marshes with numerous small shallow water bodies). 
Nests are rarely more than 190 meters (m) (680 feet (ft)) from water 
and are usually within a few meters of a pond or lake.
    On Alaska's North Slope, nearly all spectacled eiders breed north 
of 70 deg. latitude between Icy Cape and the Shaviovik River. Within 
this region, most spectacled eiders occur between Cape Simpson and the 
Sagavanirktok River (Service 1996). Spectacled eiders on the North 
Slope occur at low densities (0.03-0.79 birds/km\2\, 0.01-0.31 birds/
mi\2\) (Larned and Balogh 1997) within about 80 km (43.2 nautical miles 
(nm)) of the coast. During pre-nesting and early nesting, they occur 
most commonly on large shallow productive thaw lakes usually with 
convoluted shorelines or small islands (Larned and Balogh 1997). Such 
shallow water bodies with emergent vegetation and low islands or ridges 
appear to be important as eider nesting and brood-rearing habitat on 
the North Slope (Derksen et al. 1981, Warnock and Troy 1992, Andersen 
et al. 1998).
    Within the United States, spectacled eiders molt in Norton Sound 
and Ledyard Bay, where they congregate in large, dense flocks that may 
be particularly susceptible to disturbance and environmental 
perturbations. During their time on the molting grounds (early July 
through October), each bird is flightless for a few weeks. However, 
there is no time in which all birds are simultaneously flightless 
(Petersen et al. 1999).
    Norton Sound is located along the western coast of Alaska between 
the Y-K Delta and the Seward Peninsula. It is the principal molting and 
staging area for females nesting, and for juveniles raised, on the Y-K 
Delta (Petersen et al. 1999), the most imperiled of the three breeding 
populations. Some Y-K Delta male spectacled eiders, presumably subadult 
males, also molt in Norton Sound (Petersen et al. 1999). Breeding adult 
males from the Y-K Delta have not been observed to molt in Norton 
Sound, but they are known to molt in Ledyard Bay and in at least two 
locations in Russian waters (Petersen et al. 1999). As many as 4,030 
spectacled eiders have been observed in Norton Sound at one time 
(Larned et al. 1995a). Spectacled eiders molted in the same portion of 
eastern Norton Sound each year from 1993 to 1997. Charles Lean (Alaska 
Department of Fish and Game (ADFG), pers. comm. 1999) reported seeing 
large flocks in this same area in August and September from 1982 to 
1990, suggesting that this area has a history of consistent use by 
molting spectacled eiders. Spectacled eiders arrive in eastern Norton 
Sound at the end of July and depart in mid-October (Petersen et al. 
1999). Although overall benthic biomass (quantity of organisms living 
on the sea floor) in this area is thought to be lower than in other 
parts of Norton Sound, the abundance of large gastropods (e.g., snails, 
which are presumably a spectacled eider food item) is higher in this 
area than elsewhere (Springer and Pirtle 1997).
    Ledyard Bay is one of the primary molting grounds for female 
spectacled eiders breeding on the North Slope, and

[[Page 9147]]

most female birds molting here are from the North Slope (Petersen et 
al. 1999). Satellite telemetry data suggest that male spectacled eiders 
from the North Slope appear to molt and stage in equal numbers in 
Ledyard Bay and the two primary molting areas in Russia, Mechigmenskiy 
Bay and off the coast of the Indigirka and Kolyma River Deltas 
(Petersen et al. 1999). Aerial surveys in September 1995 found 33,192 
spectacled eiders using Ledyard Bay. Most were concentrated in a 37-km 
(23-mi) diameter circle with their distribution centered about 67 km 
(36.2 nm) southwest of Point Lay and 41 km (22.1 nm) offshore (Larned 
et al. 1995b).
    During winter, spectacled eiders congregate in exceedingly large 
and dense flocks in pack ice openings between St. Lawrence and St. 
Matthew Islands in the central Bering Sea (Larned et al. 1995c). 
Spectacled eiders from all three known breeding populations use this 
wintering area (Service 1999a); no other wintering areas are currently 
known. Larned and Tiplady (1999) conservatively estimated the entire 
wintering population, and perhaps the worldwide population, of 
spectacled eiders at 374,792 birds (95 percent Confidence Interval = 
371,278-378,305).
    Although we are unaware of large numbers of spectacled eiders 
wintering elsewhere, it has been hypothesized that the known wintering 
location may not be the only location used by this species. Dau and 
Kistchinski (1977) hypothesized that spectacled eiders may be 
overwintering south of St. Matthew and Nunivak Islands in Alaska, and 
south of the Chukotka Peninsula in Russia. No spectacled eiders were 
observed on one limited reconnaissance flight south of St. Matthew 
Island in 1995 (Bill Larned, Service, pers. comm. 2000). We have not 
surveyed south of Nunivak Island during winter. To date, all satellite 
transmitter data gathered during winter has originated from the known 
wintering area.

Population Status

    Between the 1970s and 1990s, spectacled eiders on the Y-K Delta 
declined by about 96 percent, from 48,000 pairs to fewer than 2,500 
pairs in 1992 (Stehn et al. 1993). Based upon surveys conducted during 
the past few years, the Y-K Delta breeding population is now estimated 
to be about 3,500-4,000 pairs. This estimate is the product of three 
separate factors: an aerial survey population index, a subsample of 
intensively ground-searched plots, and a measure of detection bias 
(including surveyor efficiency) on the ground plots. Detection bias 
results from the fact that observers see only a portion of the birds 
that are present or that some birds are more visible than others. The 
error associated with the annual estimate is a measure of the error 
associated with the aerial survey index only (as reflected in the 
coefficient of variance). The population estimate for 2000, based on 
the number of active and failed nests (or nesting attempts by breeding 
pairs), expanded to the entire aerial survey area and adjusted for 
detection bias, was 3,709 active nests on the Y-K Delta. The aerial 
survey coefficient of variance was 0.159. The population trend for this 
nesting population can be characterized as stable to slightly 
increasing over the last 10 years.
    The breeding population on the North Slope is currently the largest 
breeding population of spectacled eiders in North America. The most 
recent population estimate, uncorrected for aerial detection bias, is 
4,744  907 pairs (x  2SE; arithmetic mean plus 
or minus two times the standard error associated with the sample) 
(Larned et al. 1999). However, this breeding area is nearly nine times 
the size of the Y-K Delta breeding area. Consequently, the density of 
spectacled eiders on the North Slope is about one quarter that on the 
Y-K Delta (Larned and Balogh 1997, Service 1996; Robert Stehn, Service, 
Migratory Bird Management (MBM), pers. comm. 2000). Based on our survey 
data, the spectacled eider breeding population on the North Slope does 
not show a significant decline throughout most of the 1990s. The 
downward trend of 2.6 percent per year is bounded by a 90 percent 
confidence interval ranging from a 7.7 percent decline per year to a 
2.7 percent increase per year (Service, unpubl. data).
    We do not know the size of the nonbreeding segment of any 
population. Presumably, nonbreeding birds remain at sea year-round 
until they attempt to breed at age two or three. We do not know which 
areas at sea are important to nonbreeding spectacled eiders.

Previous Federal Action

    On December 10, 1990, we received a petition from James G. King, 
dated December 1, 1990, to list the spectacled eider as an endangered 
species and to designate critical habitat on the Yukon Delta National 
Wildlife Refuge and the National Petroleum Reserve-Alaska. We convened 
a workshop on February 6 and 7, 1991, to review existing information 
and develop priorities and recommendations for future studies of both 
spectacled and Steller's eiders. On April 25, 1991, we published a 90-
day finding that the petition had presented substantial information 
indicating that the requested action may be warranted (56 FR 19073).
    On February 12, 1992, a 12-month finding was signed, determining 
that listing was warranted. On May 8, 1992, we published a proposed 
rule to list the spectacled eider as a threatened species throughout 
its range (57 FR 19852). Section 4(a)(3) of the Act requires that, to 
the maximum extent prudent and determinable, the Secretary designate 
critical habitat at the time a species is determined to be endangered 
or threatened. We proposed that it was not prudent to designate 
critical habitat for the spectacled eider because there was no 
demonstrable benefit that could be shown at that time (50 CFR 424.12). 
We solicited comments from all interested parties during an extended 
comment period (160 days). This extended comment period was intended to 
accommodate Alaskan Natives, who spend substantial portions of each 
year away from their homes engaged in subsistence activities, and 
foreign scientists, whose comments may not have been received during 
the normal 90-day period. We particularly sought comments concerning 
threats to spectacled eiders, their distribution and range, whether 
critical habitat should be designated, and activities that might impact 
spectacled eiders. Notice of the proposed rule was sent to appropriate 
Federal agencies, State agencies, Alaska Native regional corporations, 
borough and local governments, scientific organizations, foreign 
countries, and other interested parties along with a request for 
information that might contribute to the development of a final rule.
    After a review of all comments received in response to the proposed 
rule, we published the final rule to list the spectacled eider as 
threatened without critical habitat on May 10, 1993 (58 FR 27474). Only 
5 of the 24 comments received specifically addressed critical habitat 
designation. Of these, one supported and four opposed the ``not 
prudent'' determination. Those that opposed the ``not prudent'' finding 
recommended that critical habitat be designated, at least for nesting 
areas. They also felt that we should have considered and provided 
information on possible marine critical habitat. In our final rule to 
list the spectacled eider as threatened, we maintained that designation 
of critical habitat was not prudent because no demonstrable overall 
benefit could be shown at that time (50 CFR 424.12).
    We initiated recovery planning for the spectacled eider in 1993. 
The Spectacled Eider Recovery Team was

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formed, consisting of ten members and four consultants with a variety 
of expertise in spectacled eider biology, conservation biology, 
population biology, marine ecology, Native Alaskan culture, and 
wildlife management. The Recovery Team and its consultants developed 
the Spectacled Eider Recovery Plan, which we approved on August 12, 
1996. The Recovery Plan established the recovery criteria that must be 
met prior to the delisting of spectacled eiders. The plan also 
identified the actions that are needed to assist in the recovery of 
spectacled eiders. Additionally, subsequent to the species listing, new 
information has become available concerning the spectacled eiders' 
molting and wintering habitat. We also now have a more precise 
delineation of its breeding habitat.
    On March 10, 1999, the Southwest Center for Biological Diversity 
and the Christians Caring for Creation filed a lawsuit in Federal 
District Court in the Northern District of California against the 
Secretary of the Department of the Interior for failure to designate 
critical habitat for five species in California and two in Alaska. 
These species include the Alameda whipsnake (Masticophis lateralis 
euryxanthus), the zayante band-winged grasshopper (Trimerotropis 
infantilis), the Morro shoulderband snail (Helmintholglypta 
walkeriana), the arroyo southwestern toad (Bufo microscaphus 
californicus), the San Bernardino kangaroo rat (Dipodomys merriami 
parvus), the spectacled eider, and the Steller's eider (Polysticta 
stelleri).
    In the last few years, several court decisions have overturned 
Service determinations for a variety of species for which we believed 
designation of critical habitat was not prudent (e.g., Natural 
Resources Defense Council v. U.S. Department of the Interior, 113 F. 3d 
1121 (9th Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. 
Supp. 2d 1280 (D. Hawaii 1998)). Based on the standards applied in 
those judicial opinions and the availability of new information 
concerning the species' recovery and habitat needs, we recognized the 
value of reexamining the question of whether critical habitat for the 
spectacled eider is prudent. Accordingly, the Federal Government 
entered into a settlement agreement whereby we agreed to readdress the 
prudency of designating critical habitat for spectacled eiders.
    In another case, Wilderness Society, et al. v. Babbitt, Civ. No. 
98-02395 (D.D.C.), filed on behalf of the Wilderness Society and seven 
other national and regional environmental organizations in October 
1998, objections were raised to the Department of the Interior's 
decision to undertake oil and gas leasing in the NPR-A. One of the 
plaintiffs' claims in this litigation is that our failure to designate 
critical habitat (i.e., our not prudent determination) for spectacled 
and Steller's eiders was arbitrary and capricious and in violation of 
the Act. This claim is currently being litigated.
    After reviewing the best scientific and commercial data available, 
we proposed to withdraw our previous finding that the designation of 
critical habitat for the spectacled eider was not prudent. On February 
8, 2000, we proposed the designation of nine areas in northern and 
western Alaska as critical habitat for the spectacled eider (65 FR 
6114).
    We requested that all interested parties submit comments during the 
public comment period on the specifics of the proposal including 
information, policy, and proposed critical habitat boundaries as 
provided in the proposed rule. The comment period was initially open 
from February 8, 2000, until May 8, 2000. On April 19, 2000, we 
published a notice in the Federal Register extending the closing date 
for the open public comment period from May 8, 2000, to June 30, 2000 
(65 FR 20938). On July 5, 2000, we published a notice in the Federal 
Register again extending the closing date for the open public comment 
period from June 30, 2000, to August 31, 2000 (65 FR 41404). On July 
31, 2000, we published a notice in the Federal Register announcing a 
public hearing on critical habitat for spectacled and Steller's eiders 
in Barrow, Alaska (65 FR 46684). On August 24, 2000, we published a 
notice in the Federal Register announcing the availability of our draft 
economic analysis and extending the closing date for the open public 
comment period from August 31, 2000, to September 25, 2000 (65 FR 
51577). The resulting comment period lasted from February 8, 2000, to 
September 25, 2000 (231 days).
    We have made our critical habitat delineations based upon the best 
scientific and commercial information available. However, we recognize 
that we do not have complete information on the distribution of this 
species at all times of the year. Thus, if information becomes 
available indicating that additional or fewer areas are essential for 
the conservation of the species, and may need special management 
considerations and protections, we may reevaluate our critical habitat 
designation, including proposing additional critical habitat or 
proposing deletion or boundary refinement of existing critical habitat.

State of Knowledge of the Spectacled Eider

    Few species make themselves less available for study than the 
spectacled eider. It spends most of the year in the Bering Sea, far 
from shore and human settlements. Summers are spent widely dispersed 
across the vast and nearly inaccessible arctic and subarctic tundra. 
Twenty-five years ago, we knew spectacled eiders were common breeders 
on the Y-K Delta, but we knew only a little about their breeding 
biology. Ten years ago, we knew they were declining in abundance on the 
Y-K Delta, but we did not know why. We also did not know much about 
where they spent three-quarters of each year during the non-breeding 
season. Since the species was listed in 1993, we have learned, among 
other things--(1) where most, if not all spectacled eiders spend the 
winter; (2) the locations of major molting areas at sea for each 
breeding population; (3) the size of the breeding populations for each 
of the three major breeding areas; (4) that consumption of spent lead 
shot is a problem for eiders breeding on the Y-K Delta; (5) that 
subsistence hunting probably did not cause the observed decline of 
eiders on the Y-K Delta, but it might be hindering or preventing 
recovery; (6) that direct interactions with commercial fisheries does 
not seem to be a problem for this species; and (7) that we will 
probably never know why this species declined 96 percent on the Y-K 
Delta since the 1970's, or whether its North Slope breeding population 
is at, below, or above historical population levels.
    We note that the recovery plan for this species contains valuable 
biological information, and is cited throughout this document. However, 
the state of our knowledge regarding eider biology and distribution has 
changed markedly since publication of the spectacled eider recovery 
plan. The recovery criteria put forth in this recovery plan represent 
careful consideration on the part of a panel of highly qualified 
scientists. The spectacled eider recovery plan sets forth several 
criteria, any of which, if met, would allow us to consider delisting 
specific populations (North Slope, Y-K Delta, Arctic Russia breeding 
populations). One such recovery goal is that three annual surveys yield 
a minimum population estimate of at least 10,000 breeding pairs. An 
alternative to the first goal is that a population could be delisted if 
a single survey resulted in a minimum population estimate of over 
25,000 breeding pairs. There is a third recovery goal, that is based 
upon a fairly complex statistical measure that considers population 
trend data and

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over- and under-protection loss functions combined with a minimum 
breeding population estimate; however, it is sufficiently complex that 
it is beyond the scope of this document to explain.
    The recovery criteria put forth in the plan may warrant revision in 
light of new information. As a result of notable research and survey 
efforts directed towards this species, substantial portions of the 
biological information presented in the recovery plan is now dated or 
obsolete. Thus, although the recovery plan is a valuable source of 
information, it cannot always be considered the final authority on the 
natural history and distribution of this species. Finally, we note that 
the recovery plan did not discuss critical habitat. However, we do not 
interpret the plan's silence on the topic to be an implicit endorsement 
that critical habitat is or is not warranted.
    We do not know what critical factor or factors are limiting the 
recovery of this species, but we suspect that these factors are 
affecting survival of breeding adults. Hypotheses that continue to be 
implicated in the decline of the eiders include--(1) lead poisoning on 
the Y-K Delta; (2) changes in food supply at sea; (3) excessive 
subsistence take; (4) changes in predator pressure on the Y-K Delta 
breeding ground; and (5) disturbance of nesting birds by researchers.
    Data indicate that lead poisoning is a serious problem on at least 
some portions of the Y-K Delta. Approximately one third of adult 
breeding females near the lower Kashunuk River exhibited elevated lead 
levels in blood, suggesting consumption of at least one lead pellet 
during the breeding season (Flint et al. 1997). In addition, nine of 43 
broods sampled contained one or more ducklings that had consumed lead 
within 30 days of hatching (Flint et al. 1997). Although we have seen 
elevated levels of lead in long-tailed ducks (oldsquaw) (Clangula 
hyemalis) from the North Slope, we do not know if lead poisoning is a 
problem for spectacled eiders there.
    Information is just beginning to come in suggesting a deterioration 
of habitat conditions favorable to spectacled eiders on their wintering 
grounds in the Bering Sea. South of St. Lawrence Island, a number of 
factors suggest that the eider's preferred food resources are in 
decline. Organic deposition and benthic biomass in this area have 
declined steadily since the late 1980s. Oceanographic studies during 
late winter (March-April 1999) found that particulate organic carbon 
concentrations in the water column were too low to support significant 
populations of large zooplankton or krill, indicating that spectacled 
eiders must be feeding on the bottom. However, a long-term trend in 
benthic communities continues: The formerly abundant bivalve Macoma 
calcarea has declined relative to another clam Nuculana radiata, which 
has 76 percent lower lipid content and 26 percent lower energy density 
(J.R. Lovvorn, Univ. Wyoming, pers. comm. 2000). The average length and 
mass of bivalves has also declined in the long term (J.M. Grebmeier and 
B.I. Sirenko, unpubl. data). Because nearly all individuals of this 
species may spend each winter occupying an area of ocean less than 50 
km (27.0 nm) in diameter, they may be particularly vulnerable to 
environmental changes of limited geographic extent during this time.
    We have estimated that at least 3.75 percent of the breeding adult 
spectacled eiders on the Y-K Delta are taken by subsistence hunters 
each year, but the population-level effects of this harvest are not 
clear. We note, however, that a spectacled eider population model 
(currently available to the public over the Internet at http://abscweb.wr.usgs.gov/research/speimod/index.htm) suggests that a harvest 
of this size may slow or prevent recovery of this species. We have thus 
far been unsuccessful in establishing a subsistence harvest survey for 
villages on the North Slope, and therefore, we have no estimates of the 
take from that breeding population.
    We will probably never know what role predators played in the 
decline of eiders on the Y-K Delta, but as Y-K Delta goose populations 
rebound, any negative affect of predators on eider populations is, 
hopefully, diminishing. There is no reason to suspect that predator 
pressure on eiders has increased over historical levels on the North 
Slope, except perhaps locally near human habitations and oil production 
facilities.
    Our preliminary information indicates that researchers are not 
having a notable effect on nesting spectacled eiders (Service 1999b), 
but it nevertheless remains a concern of Natives residing on the Y-K 
Delta. Ground-based studies for spectacled eiders on the North Slope 
are mostly restricted to a very small portion of their range around 
developed oil fields or incidental to other bird studies around Barrow.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Section 4(b)(2) of the Act requires that we base critical habitat 
proposals upon the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude any area from critical habitat designation if the benefits of 
such exclusion outweigh the benefits of including such area as part of 
the critical habitat, provided the exclusion will not result in the 
extinction of the species (section 4(b)(2) of the Act).
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``* * * the 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. Such alterations include, but are not limited to, alterations 
adversely modifying any of those physical or biological features that 
were the basis for determining the habitat to be critical.'' Aside from 
the added protection that may be provided under section 7, the Act does 
not provide other forms of protection to lands designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal lands that do not involve 
a Federal nexus, critical habitat designation does not afford any 
additional protections under the Act against such activities.
    Section 4 of the Act requires that we designate critical habitat at 
the time of listing and based on what we know at the time of the 
designation. When we designate critical habitat at the time of listing 
or under short court-ordered

[[Page 9150]]

deadlines, we will often not have sufficient information to identify 
all areas of critical habitat. We are required, nevertheless, to make a 
decision and thus must base our designations on what, at the time of 
designation, we know to be critical habitat.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species''. 
Within the geographic range occupied by the species critical habitat 
designations identify, to the extent known using the best scientific 
and commercial data available, habitat areas that provide essential 
life cycle needs of the species (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)) and may 
require special management consideration or protection.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential and that may 
require special management consideration or protection. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. It should be noted, however, that not 
all areas within the occupied geographic range of the species that 
contain the features and habitats that supports the species are 
essential and they may or may not require special management or 
protection. We will not speculate about what areas might be found to be 
essential if better information became available, or what areas may 
become essential over time. If the information available at the time of 
designation does not show that an area provides essential life cycle 
needs of the species, then the area should not be included in the 
critical habitat designation. Within the geographic area occupied by 
the species, we will not designate areas that do not now have the 
primary constituent elements, as defined at 50 CFR 424.12(b), that 
provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that decisions made by us represent the best scientific and 
commercial data available. It requires our biologists, to the extent 
consistent with the Act and with the use of the best scientific and 
commercial data available, to use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are critical habitat, a primary 
source of information should be the listing package for the species. 
Additional information may be obtained from a recovery plan, articles 
in peer-reviewed journals, conservation plans developed by states and 
counties, scientific status surveys and studies, and biological 
assessments or other unpublished materials (i.e., gray literature). Our 
peer review policy requires that we seek input from at least three 
scientists who are knowledgeable in subject matter relevant to each 
rule.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant or may not be required for recovery. 
Areas outside the critical habitat designation will continue to be 
subject to conservation actions that may be implemented under section 
7(a)(1) and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the section 9 take prohibition, as 
determined on the basis of the best available information at the time 
of the action. We specifically anticipate that federally funded or 
assisted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available to these planning efforts calls for a 
different outcome.
    Designating critical habitat does not, in itself, lead to recovery 
of a listed species. Designation does not create a management plan, 
establish numerical population goals, prescribe specific management 
actions (inside or outside of critical habitat), set aside areas as 
preserves, or directly affect areas not designated as critical habitat. 
Specific management recommendations for critical habitat are most 
appropriately addressed in section 7 consultations for specific 
projects, or through recovery planning.
    Designation of critical habitat can help focus conservation 
activities for a listed species by identifying areas, both occupied and 
unoccupied, which contain or could contain the habitat features 
(primary constituent elements described below) that are essential for 
the conservation of that species. Designation of critical habitat 
alerts the public as well as land-managing agencies to the importance 
of these areas.
    Our decision to not designate critical habitat throughout all of 
our proposed critical habitat units does not imply that these non-
designated areas are unimportant to spectacled eiders. Projects with a 
Federal nexus that occur in these areas, or anywhere within the range 
of spectacled eiders, which may affect spectacled eiders must still 
undergo section 7 consultation.

Methods

    In determining which areas are essential to the conservation of 
spectacled eiders and may require special management consideration or 
protection, we used the best scientific and commercial information 
available. Our information sources included 1:250,000 and 1:63,360 
scale U.S. Geological Survey topographic maps, satellite imagery, 
geographic coordinates and duration-of-use information from satellite 
tagged birds, geographic coordinates and dates of aerial observations 
of birds, ground plot surveys, ground-based biological investigations, 
digital bathymetry information, digital coastline information, other 
Geographic Information System (GIS) data, traditional Native knowledge 
and area-specific historic trend data, information received from the 
public during the public comment period, and site-specific species 
information and observations.
    We discussed or presented our critical habitat proposal at 19 
meetings and one hearing. We convened a meeting of experts in the field 
of eider biology to provide us with information useful in setting 
criteria and boundaries for habitats essential to the conservation of 
the spectacled eider. We considered the information gathered at our 
meeting of eider experts, and information that we solicited from eider 
experts who were unable to attend this meeting. Experts from whom we 
sought information included representatives of State and Federal 
agencies, the University of Alaska, a private environmental consulting 
firm, and Native governing

[[Page 9151]]

bodies. We considered all comments received during the open comment 
period, including both written and oral comments received during 
meetings and one public hearing, and comments received by E-mail, 
regular mail, facsimile, and telephone.
    We made a concerted effort to solicit traditional ecological 
knowledge regarding habitats that are important to spectacled eiders. 
To this end, we contacted representatives of regional governmental and 
non-profit Native organizations and asked them to recommend individuals 
who may have traditional ecological knowledge of eiders and their 
habitats and who may be willing to review the spectacled eider critical 
habitat proposal. We attempted to contact all individuals identified by 
the regional representatives, and provided those individuals who agreed 
to review the proposal with copies of the proposed rule and additional 
informational materials. Comments submitted by these and other 
individuals with traditional ecological knowledge, transmitted either 
in written form or orally during the course of public meetings, have 
been considered during the development of the final rule.
    We reviewed available information that pertains to the habitat 
requirements and preferences of this species. We reviewed the approach 
of the appropriate local, State, Native, and Federal agencies in 
managing for the conservation of spectacled eiders as well as the 
recovery tasks outlined in the Spectacled Eider Recovery Plan. Comments 
received through the public review process provided us with valuable 
additional information to use in decision making, and in assessing the 
potential economic impact of designating critical habitat for the 
species.
    We sought peer review of our spectacled eider critical habitat 
proposal from three scientists with expertise in eider biology. All 
three peer reviewers provided us with comments, which we considered in 
developing our final designations and in drafting this rule.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12 in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features that are essential to the conservation 
of the species and that may require special management considerations 
and protection. Such requirements include but are not limited to: space 
for individual and population growth, and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, 
rearing of offspring; and habitats that are protected from disturbance 
or are representative of the historic geographical and ecological 
distributions of a species.
    All areas designated as critical habitat for the spectacled eider 
contain one or more of these physical or biological features, also 
called primary constituent elements. These areas constitute our best 
assessment of the areas needed for the species' conservation using the 
best available scientific and commercial data available. We put forward 
this designation acknowledging that we have incomplete information 
regarding breeding ground habitat preferences, distribution of 
preferred breeding ground habitats, migration corridors, offshore 
staging areas, marine habitats used by nonbreeders, marine diet, and 
distribution of preferred prey items at sea. As new information 
accrues, we may reevaluate our critical habitat boundaries.
    Primary constituent elements for Units 1 and 2 (the Central Y-K 
Delta Unit and South Y-K Delta Unit, respectively) include all portions 
of the vegetated intertidal zone, and all open water inclusions within 
that zone. The intertidal zone includes all lands inundated by seawater 
often enough to affect plant growth, habit, or community composition. 
Plant communities within this zone include, but are not limited to: low 
wet sedge tundra; grass marsh; dwarf shrub/graminoid (consisting of 
grasses and sedges) meadow; high and intermediate graminoid meadow; 
mixed high graminoid meadow/dwarf shrub uplands.
    Primary constituent elements for Units 3 and 4 (the Norton Sound 
Unit and the Ledyard Bay Unit, respectively) include all marine waters 
greater than 5 m (16.4 ft) and less than or equal to 25 m (82.0 ft) in 
depth at mean lower low water (MLLW), along with associated marine 
aquatic flora and fauna in the water column, and the underlying marine 
benthic community.
    Primary constituent elements for Unit 5 (the Wintering Unit) 
include all marine waters less than or equal to 75 m (246.1 ft) in 
depth at MLLW, along with associated marine aquatic flora and fauna in 
the water column, and the underlying marine benthic community.

Criteria Used To Identify Critical Habitat

    We considered several qualitative criteria in the selection of 
specific areas or units for spectacled eider critical habitat. Such 
criteria focused on identifying--(1) areas where eiders have been 
documented as consistently occurring at relatively high densities; (2) 
areas where eiders are especially vulnerable to disturbance and 
contamination during breeding, molting, or wintering; (3) our knowledge 
of the habitat's carrying capacity, which allows us to determine how 
much habitat is needed for the species to achieve recovery; (4) our 
certainty in delineating the areas essential to survival and recovery 
given our best available data; and (5) whether any areas were the 
subject of habitat conservation planning efforts that have resulted in 
the preparation of biological analyses that identify habitat important 
for the conservation of the eider.
    We used available mapping conventions to define specific map units 
(i.e., Critical Habitat Units). For the purpose of this final 
determination, terrestrial Critical Habitat Units have been described 
using state-plane township grids with resolution to the Section level. 
Maritime Critical Habitat Units have been described using prominent 
geographic features, shorelines, buffer distances, and geographic 
coordinates reported in degrees, minutes, and seconds to enable 
mariners to easily determine whether they are within critical habitat 
areas.
    In defining critical habitat boundaries, we made an effort to avoid 
developed areas, such as towns and other similar lands, which do not 
contain the primary constituent elements of spectacled eider critical 
habitat. Existing man-made features and structures within the 
boundaries of the mapped units, such as buildings, roads, pipelines, 
utility corridors, airports, other paved areas, and other developed 
areas do not contain one or more of the primary constituent elements 
and are therefore not critical habitat. Federal actions limited to 
those areas, therefore, would not trigger a section 7 consultation, 
unless they may affect the species and/or primary constituent elements 
in adjacent critical habitat.

Critical Habitat Designation

    The designated critical habitat described below constitutes our 
best assessment of areas needed for the conservation of spectacled 
eiders and is based on the best scientific and commercial information 
available. The essential features found on the

[[Page 9152]]

designated areas may require special management consideration or 
protection to ensure their contribution to the species' recovery. Area 
of designated critical habitat by land ownership is shown in Table 1. 
The areas of proposed and final critical habitat units are shown in 
Table 2, along with the percentage change in size for each of these 
areas between the proposed and final rules.
    Table 1. Critical habitat designations in each land-ownership 
category. Units are hectares, and are rounded to the nearest hectare. 
To convert from hectares to km\2\, multiply hectares by 0.01. To 
convert hectares to acres, multiply hectares by 2.471. To convert 
hectares to mi\2\, multiply hectares by 0.00386.

----------------------------------------------------------------------------------------------------------------
                    Location                       Federal       State        Native      Private       Total
----------------------------------------------------------------------------------------------------------------
Central Y-K Delta..............................      190,758            0       65,283            0      256,041
Southern Y-K Delta.............................        4,509            0       18,734            0       23,243
Y-K Delta Coastal Waters.......................            0            0            0            0            0
North Slope (land).............................            0            0            0            0            0
North Slope (marine)...........................            0            0            0            0            0
Norton Sound (marine)..........................      837,641      220,984            0            0    1,058,625
Ledyard Bay (marine)...........................    1,298,074       97,889            0            0    1,395,963
Wintering Area (marine)........................    7,238,306      126,649            0            0    7,364,955
                                                ----------------------------------------------------------------
      Total....................................    9,569,288      445,522       84,017            0   10,098,827
----------------------------------------------------------------------------------------------------------------

    Table 2. Area of land included in proposal vs. final rule for 
spectacled eider critical habitat, rounded to the nearest km\2\. Areas 
may not match those in our proposal (65 FR 6114). Numbers in this table 
reflect refined area estimates.

------------------------------------------------------------------------
                                         Area (km\2\)
             Location             --------------------------   Percent
                                     Proposed      Final      reduction
------------------------------------------------------------------------
Y-K Delta (land).................        4,618        2,793           39
Y-K Delta (marine)...............       16,885            0          100
North Slope (land)...............       32,336            0          100
North Slope (marine).............       26,088            0          100
Norton Sound (marine)............       17,502       10,586           40
Ledyard Bay (marine).............       21,688       13,960           35
Wintering Area (marine)..........       73,650       73,650            0
                                  --------------------------------------
      Total......................      192,767      100,989           48
------------------------------------------------------------------------

Unit 1: Central Yukon-Kuskokwim Delta (Proposed Unit 3)

    Unit 1 is comprised of 15 entire townships and 564 sections within 
27 additional townships. Our final designation encompasses 2,560.4 
km\2\ (256,041 ha) (988.6 mi\2\) (Table 2), a 16 percent reduction of 
what we proposed for this unit (3,037.6 km\2\ or 1,172.8 mi\2\). Unit 1 
is comprised of the vegetated intertidal zone between the Askinuk 
Mountains and Nelson Island. The primary constituent elements of 
spectacled eider critical habitat in this unit include all land within 
the vegetated intertidal zone, along with all open-water inclusions 
within that zone. The vegetated intertidal zone includes all lands 
inundated by tidally influenced water often enough to affect plant 
growth, habit, or community composition. Waters within this zone are 
usually brackish. Vegetative communities within this zone include, but 
are not limited to, low wet sedge tundra, grass marsh, dwarf shrub/
graminoid (consisting of grasses and sedges) meadow, high and 
intermediate graminoid meadow, mixed high graminoid meadow/dwarf shrub 
uplands, and areas adjacent to open water, low wet sedge and grass 
marsh habitats. Areas within our indicated border that are not within 
the vegetated intertidal zone (e.g., barren mudflats and lands that are 
above the highest high tide line) are not considered critical habitat. 
In addition, areas of existing human development within our indicated 
border are not considered critical habitat.

Unit 2: Southern Yukon-Kuskokwim Delta (Proposed Unit 4)

    Unit 2 is comprised of 103 sections within 8 townships. Our final 
designation encompasses 232.4 km\2\ (23,243 ha) (89.7 mi\2\) (Table 2), 
a 65 percent reduction of what we proposed for this unit (665.3 km\2\ 
or 256.9 mi\2\). This unit is comprised of the vegetated intertidal 
zone along the coast from Nelson Island south to Chefornak, Alaska. The 
primary constituent elements of spectacled eider critical habitat in 
this unit include all land within the vegetated intertidal zone, along 
with all open-water inclusions within that zone. This vegetated 
intertidal zone includes all lands inundated by tidally influenced 
water often enough to affect plant growth, habit, or community 
composition. Waters within this zone are usually brackish. Vegetative 
communities within this zone include, but are not limited to, low wet 
sedge tundra, grass marsh, dwarf shrub/graminoid (consisting of grasses 
and sedges) meadow, high and intermediate graminoid meadow, mixed high 
graminoid meadow/dwarf shrub uplands, and areas adjacent to open water, 
low wet sedge and grass marsh habitats. Areas within our indicated 
border that are not within the vegetated intertidal zone (e.g., barren 
mudflats and lands that are above the highest high tide line) are not 
considered critical habitat. In addition, areas of existing human 
development within our indicated border are not considered critical 
habitat.

Unit 3: Norton Sound (Proposed Unit 6)

    Unit 3 includes the waters of Norton Sound east of 162 deg. 47', 
excluding the indicated waters within Norton Bay. Our final designation 
encompasses

[[Page 9153]]

10,586 km\2\ (4087.3 mi\2\) (Table 2), a 40 percent reduction of what 
we proposed (17,502 km\2\ (6,757.5 mi\2\)). The primary constituent 
elements of spectacled eider critical habitat in this unit include the 
marine waters greater than 5 m (16.4 ft) and less than or equal to 25 m 
(82.0 ft) in depth at MLLW, along with associated marine aquatic flora 
and fauna in the water column, and the underlying marine benthic 
community.

Unit 4: Ledyard Bay (Proposed Unit 7)

    Unit 4 includes the waters of Ledyard Bay within about 74 km (40 
nm) of shore, excluding waters less than 1.85 km (1 nm) from shore. Our 
final designation encompasses 13,960 km2 (5,390.0 
mi2), a 35 percent reduction of what we proposed (21,688 
km2 (8,373.7 mi2)) (Table 2). The primary 
constituent elements of spectacled eider critical habitat in this unit 
include marine waters greater than 5 m (16.4 ft) and less than or equal 
to 25 m (82.0 ft) in depth, along with the associated marine aquatic 
flora and fauna in the water column, and the underlying marine benthic 
community.

Unit 5: Wintering Area (Proposed Unit 8)

    Unit 5 includes the U.S. waters south of St. Lawrence Island 
between the latitudes 61 deg. N and 63 deg. 30' N, and between the 
longitudes 169 deg. W and 174 deg. 30' W. No portion of St. Lawrence 
Island or Russia is included in Unit 5. Our final designation 
encompasses 73,650 km2 (28,436.3 mi2), the same 
as what we proposed. The primary constituent elements of spectacled 
eider critical habitat in this unit include marine waters less than or 
equal to 75 m (246.1 ft) in depth, along with the associated marine 
aquatic flora and fauna in the water column, and the underlying marine 
benthic community.

Rationale for the Final Designation

    This final rulemaking reflects significant changes to critical 
habitat areas from the proposed rulemaking. We have substantially 
reduced the area of some critical habitat units, and completely 
eliminated others. Our final rule represents a 48 percent reduction in 
total area over what we proposed as critical habitat (Table 2). We have 
not added area to existing critical habitat units, or added new 
critical habitat units. The proposed rule was based on the best 
scientific and commercial information then available. The settlement 
agreement mandated a short time line for our evaluation of critical 
habitat. Consequently, when we developed the proposed rule we included 
all areas that we thought might be essential to the conservation of the 
species, based on the best available commercial and scientific 
information.
    Following publication of the proposed rule we undertook an 
exhaustive effort to gather additional information that would help us 
identify more precisely those areas essential to the conservation of 
the species (see methods). Specific rationale for retention, 
modification, or exclusion of the proposed critical habitat in this 
final rulemaking are explained in detail below.

North Yukon-Kuskokwim Delta (Proposed Unit 1)

    We excluded proposed Unit 1, the North Y-K Delta Unit, from our 
final designation because we determined that most of the habitat within 
the narrow band of coastal fringe was not suitable for spectacled 
eiders. We are uncertain what features of this habitat make it less 
suitable to eiders, but eider experts who are familiar with this area 
indicate that it is physiographically distinct from the portions of the 
vegetated intertidal zone used by eiders elsewhere on the delta. Our 
inspection of large scale (1:63,360) topographic maps leads us to the 
same conclusion. The complete lack of eider observations throughout 
most of this region also supports this contention. We recognize that 
there may be a very small inclusion of habitat within this area that is 
suitable for breeding spectacled eiders, but we have been unable to 
visit the site during the breeding season to determine its suitability 
due to land ownership issues and logistical difficulties. Very few 
spectacled eider observations have been made by biologists flying 
annual systematic aerial surveys in this proposed unit between 1993-
1999 (5 of 916 observations delta-wide or 0.5 percent of sightings on 
19 percent of proposed terrestrial CH on the Y-K Delta), suggesting 
that while some suitable nesting habitat may be found in this area, its 
contribution to the conservation of this species at this time is low. 
Based upon the apparent lack of suitable nesting habitat for spectacled 
eiders in this unit, we have concluded that this area does not now, and 
may not ever, have contributed significantly to the maintenance of the 
bird's population in the Y-K Delta. In evaluating the current and 
potential contribution of this unit to the recovery of the species and 
meeting the recovery goals identified in the species' recovery plan, we 
have concluded that this unit's contribution is currently low and its 
contribution to the future recovery of the species is limited. 
Consequently, we believe that this area is not essential to the 
conservation of the species.

Proposed Unit 2

    We note that our proposed critical habitat designation did not 
contain a Unit 2. Our non-sequential numbering of proposed units 
resulted from a last-minute consolidation of what were once numbered 
Proposed Units 1 and 2 into one unit, and a failure on our part to re-
number the remaining proposed units. We note that our draft economic 
analysis contained maps that did not exactly match the numerical 
designations in our critical habitat proposal, although the areas 
included within the aggregate proposed borders were identical.

Unit 1: Central Yukon-Kuskokwim Delta (Proposed Unit 3)

    We reduced the size of Unit 1 (proposed Unit 3), the Central Y-K 
Delta Unit, based upon topography information from large scale 
(1:63,360 scale) maps, additional analysis of aerial survey data, 
information from biologists with extensive field experience in the area 
and the advice of eider experts. We excluded land that appeared to be 
over 7.6 m (25.0 ft) in elevation, and areas under 7.6 m (25 ft) in 
elevation that field biologists described as not suitable for eiders. 
Field reconnaissance indicates that the plant communities found on 
areas above 7.6 m in elevation do not provide the habitat and 
constituent elements characteristically used by spectacled eiders for 
nesting. The excluded areas under 7.6 m (25 ft) in elevation appear to 
be outside of the vegetated intertidal zone used by spectacled eiders. 
Furthermore, aerial survey data indicated that no eiders were observed 
in the excluded portions (both greater than and less than 7.6 m (25 ft) 
in elevation) of this proposed unit from 1993-1999. Consequently, we 
have determined that the excluded areas are not essential to the 
conservation of the species because these areas do not contain the 
primary constituent elements that we believe are important in 
successful nesting or brood-rearing.
    The Y-K Delta breeding population of spectacled eiders cannot 
reasonably be expected to reach established any of the species' 
recovery goals (Service 1996) in the absence of Units 1 and 2, where 
over 95 percent of documented observations from aerial surveys have 
occurred. We believe that the entire area being designated is critical 
to the survival and recovery of the species because the currently 
occupied area represents what biologists often refer to as the ``core 
breeding area'' for this species following the 96 percent population 
decline on the Y-K Delta since the 1970s. Further restriction of their 
breeding range may

[[Page 9154]]

preclude the species ability to achieve recovery thresholds. Indeed, 
adverse modification of these units would probably result in the 
eventual loss of this population, which would represent a loss of a 
significant portion of the species' range, thus precluding eventual 
recovery of the species. Therefore, we have determined that the area we 
have designated as critical habitat is essential to the conservation of 
the species. Furthermore, we have determined that if this species 
achieves historical nesting densities in Units 1 and 2 then the species 
will exceed the recovery thresholds set forth in the spectacled eider 
recovery plan for a population.
    We believe that special management considerations and protections 
may be needed for the essential features (constituent elements) found 
within Unit 1, primarily because lead shot present in the environment 
poses a continuing threat to the species.

Unit 2: South Yukon-Kuskokwim Delta (Proposed Unit 4)

    We reduced the size of proposed Unit 4, the South Y-K Delta Unit, 
based upon topography information from large scale (1:63,360 scale) 
maps, additional analysis of aerial survey data, and the advice of 
eider experts. We excluded land that appeared to be over 7.6 m (25.0 
ft) in elevation and areas under 7.6 m (25 ft) in elevation that are 
not coastal vegetated intertidal zone in nature, but rather occur 
somewhat inland within the flood basin of the Kolavinarak River, which 
connects Baird Inlet to the Bering Sea. We have been unable in the past 
to place field crews on the ground in this Unit due to land ownership 
issues and logistical difficulties. Doing so is a high priority. Few 
spectacled eider observations have been made by biologists flying 
annual systematic aerial surveys in the excluded portion of this 
proposed unit from 1993-1999 (2 of 916 observations delta-wide). 
Consequently, we have determined that the excluded portions of this 
proposed unit that are over 7.6 m in elevation are not essential to the 
conservation of the species because they do not contain the primary 
constituent elements that we believe are important in successful 
nesting or brood-rearing. Although we have not made site visits to the 
excluded areas that are not over 7.6 m in elevation, we feel safe in 
assuming that they are not essential to spectacled eiders because we 
have observed a total of only 0 to 2 eiders each year there in seven 
years of aerial surveys, and because we suspect that the area differs 
physiographically from the coastal vegetated intertidal zone used by 
eiders in this area because, while at similar elevations to the coastal 
intertidal zone, it occurs somewhat inland within the flood basin of 
the Kolavinarak River, which connects Baird Inlet to the Bering Sea. 
Our aerial survey data indicates that, for reasons unknown to us, this 
area is either very rarely used by eiders, or is not used by eiders at 
all.
    As noted above, the Y-K Delta breeding population of spectacled 
eiders cannot reasonably be expected to reach established recovery 
goals (Service 1996) in the absence of Units 1 and 2, where over 95 
percent of documented observations from aerial surveys have occurred. 
Therefore, we have determined that the area we have designated as 
critical habitat is essential to the conservation of the species. We 
believe that special management considerations and protections may be 
needed for the essential features (constituent elements) found within 
Unit 2, primarily because lead shot present in the environment poses a 
continuing threat to the species.

Y-K Delta Marine Unit (Part of Proposed Units 1, 3, and 4)

    Although we proposed to designate as critical habitat the marine 
waters within 40 km (21.6 nm) of our proposed terrestrial critical 
habitat on the Y-K Delta, we have not designated these waters as 
critical habitat in our final rule. Nearly all of our information about 
the use of this area derives from 43 birds marked with satellite 
transmitters. Although satellite telemetry confirms the use of these 
offshore waters by many of the post-breeding spectacled eiders 
(Petersen et al. 1999), the duration of use is best described in terms 
of days rather than weeks or months. We do not know if birds are 
feeding in these waters, are loafing, or are acclimating from a 
freshwater environment to one of saltwater. Without better information 
explaining how the spectacled eiders use this marine area, we are 
unable to determine which, if any, physical or biological features 
within the area contribute towards the conservation of the species 
(e.g. the primary constituent elements would likely differ if the birds 
use the area primarily for loafing or acclimating to saltwater versus 
if they are feeding in the area). We do know that the spectacled eiders 
do not nest, molt, or winter in this marine area. We also know that 
they do not concentrate in the area or appear to use it for any great 
length of time. Furthermore, we have no reason to believe that this 
area, or any portion thereof, is necessary for success in nesting, 
molting or wintering, all critical life stages for this species. 
Therefore, based upon our knowledge at this time, we do not believe 
that this marine area is essential to the conservation of the species.

North Slope (Proposed Unit 5)

    Although we proposed to designate as critical habitat 402 townships 
on the North Slope and all marine waters within 40 km (21.6 nm) of 
these townships, we have not designated this area as critical habitat 
in our final rule. In our proposed rule we stated: ``Absent trend 
information, it is impossible to know how much land on the North Slope 
is essential for conservation of the species. Erring in favor of 
conservation of the species, we believe that, with eight exceptions, 
those townships in which spectacled eider observations were made during 
annual systematic aerial surveys of breeding eiders from 1992 to 1998 
are essential to the species' conservation.'' When we published our 
proposal to designate critical habitat we believed that the critical 
habitat designation should broadly identify those areas that we believe 
are essential to the conservation of the species. The comments we 
received in response to the proposal suggested that we should define 
critical habitat in a more specific and precise manner. Further, some 
of the commenters believed that our proposed designation was not 
consistent with the Act's definition of critical habitat (see Summary 
of Comments and Recommendations section). Therefore, we carefully 
reviewed the best available information to ensure that our approach and 
the designation itself provided the greatest benefit to the eider and 
met the requirements of the Act.
    The specificity with which we can designate critical habitat is 
constrained by the limited information currently available (see State 
of Knowledge of the Spectacled Eider section). We are currently working 
to increase our knowledge of the breeding habitat needs of the 
spectacled eider on the North Slope and to improve our ability to 
delineate any areas essential to the conservation of the species. Our 
FY 2001 budget included $600,000 specifically earmarked by Congress to 
fund work by the Alaska Sea Life Center (ASLC) and the Service on 
recovery actions for the spectacled and Steller's eiders, including the 
development of better information upon which to base critical habitat 
delineations. We will work closely with the ASLC to identify the 
studies that would be most helpful. In particular, we will seek studies 
that would provide information that will help us to identify the 
habitat needs of both eider species, and we will seek the assistance of 
our partners in carrying out such studies.

[[Page 9155]]

    However, we must make our designation based on the best information 
currently available, and in that context we sought to determine 
whether, at this time, it would be appropriate for our final 
designation to include the entire area on the North Slope as proposed. 
The spectacled eider was listed primarily due to its drastic decline on 
the Y-K Delta. Although at the time of listing, Warnock and Troy (1992) 
noted preliminary data that suggested at least a local decline of 
spectacled eiders in the Prudhoe Bay area, subsequent analyses of data 
no longer support that conclusion (Declan Troy, pers. comm, 1999). 
There is no other systematic data suggesting a historic decline in 
spectacled eider numbers on the North Slope prior to listing. In 
addition, there has not been a statistically significant trend in the 
population during the nine years we have been monitoring it. However, 
we note that we were able to determine that even the Y-K Delta 
population, which underwent a 96 percent decline, can achieve recovery 
on a subset of its currently occupied territory by achieving something 
approximating historical densities on that subset area (i.e., within 
our designated critical habitat borders). If the North Slope population 
has undergone a decline, we and the eider experts believe it is 
reasonable to assume that the North Slope population could also achieve 
recovery on a subset of its currently occupied breeding territory 
through increases in density to historic levels. In short, even if this 
species has declined drastically, we do not believe that it would 
require all of its currently occupied breeding range on the North Slope 
to reach recovery thresholds, and therefore a final designation 
including the entire area proposed on the North Slope is not 
appropriate at this time.
    While the entire North Slope is not required for spectacled eiders 
to reach recovery thresholds, this population cannot reasonably be 
expected to reach established recovery goals (Service 1996) in the 
complete absence of breeding habitat on the North Slope. Therefore, we 
believe that some subset of the North Slope breeding habitat is 
essential to the conservation of the species. Moreover, we believe that 
these lands may require special management considerations and 
protections given the extent of oil and gas exploration and development 
has occurred in the area and may reasonably be anticipated in the 
future.
    We sought to determine which subset of the area proposed should be 
included in the final designation. However, we lack reliable scientific 
data about the habitat preferences of nesting females and females with 
broods. Therefore, we are currently unable to ascertain why females 
nest in one area, but not in another that appears to provide similar 
habitat conditions. However, we can use the actual distribution of a 
species as evidence of which areas have the habitat features essential 
to the conservation of the species, even if we do not have sufficient 
information to describe precisely what discriminates those features 
from other similar, but non-essential features.
    We thoroughly examined available bird distribution data in a number 
of ways to ascertain which portion of the entire breeding area was 
needed to conserve the species (i.e., reach the recovery thresholds set 
forth in the spectacled eider recovery plan). We used a number of 
different techniques to evaluate the observation data. This included 
geographical analysis of the observation data, including density 
isopleths, minimum convex polygons around aerial observations at 10 
percent intervals, eider density kernels at 10 percent intervals, and 
eider densities on a township by township basis. These complex GIS-
based spatial analyses can help us answer questions such as (1) How 
much area is encompassed by 20, 40, 60, or 80 percent of the birds? (2) 
Which townships have the highest density of eiders? (3) Which townships 
would we choose if we wanted to encompass 30, 50, 70, or 90 percent of 
the best habitat (as indicated by bird density)? and (4) How many 
townships would we need to achieve recovery thresholds if every 
township were to eventually support eider populations as dense as the 
current most densely populated township? These analyses offered methods 
that can be used to identify areas that can be included within critical 
habitat borders, and since the entire area incorporated into these 
analyses is utilized for nesting by the species at varying densities, 
it was assumed that they contained the physical and biological features 
necessary for successful breeding and brood rearing and thus may be 
essential to the conservation of the species. Unfortunately, none of 
the analyses helped us in determining which specific areas were 
essential to the conservation of spectacled eiders because each was 
based on a statistical threshold that may or may not be confirmed in 
future scientific studies.
    Nonetheless, the designation of critical habitat on a subset of the 
area proposed based on such methods would be consistent with the Act's 
requirement to use the best available information. However, the 
relative benefits to the species of such a designation must also be 
weighed in our decision as to where to designate critical habitat. 
Subsection 4(b)(2) of the Act allows us to exclude areas from critical 
habitat designation where the benefits of exclusion outweigh the 
benefits of designation, provided the exclusion will not result in the 
extinction of the species.
    The benefits of including lands in critical habitat are often 
relatively small. The principal benefit of any designated critical 
habitat is that activities in such habitat that may affect it require 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid adverse modification of 
critical habitat. However, it is important to note that, as result of 
the spectacled eider being listed as a threatened species, we already 
consult on activities on the North Slope that may affect the species. 
While these consultations do not specifically consider the issue of 
adverse modification of critical habitat, they address the very similar 
concept of jeopardy to the species. Under most circumstances, 
consultations under the jeopardy standard will reach the same result as 
consultations under the adverse modification standard. Implementing 
regulations (50 CFR Part 402) define ``jeopardize the continued 
existence of'' and ``destruction or adverse modification of'' in 
virtually identical terms. Jeopardize the continued existence of means 
to engage in an action ``that reasonably would be expected * * * to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species.'' Destruction or adverse modification means an 
``alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species.'' Common to 
both definitions is an appreciable detrimental effect on both survival 
and recovery of a listed species, in the case of critical habitat by 
reducing the value of the habitat so designated. Thus, actions 
satisfying the standard for adverse modification are nearly always 
found to also jeopardize the species concerned, and the existence of a 
critical habitat designation does not materially affect the outcome of 
consultation. Additional measures to protect the habitat from adverse 
modification are not likely to be required.
    Since the spectacled eider was listed in 1993, we have consulted 
with Federal agencies on a variety of actions to evaluate impacts to 
the species on the North Slope. In most cases, the consultations have 
determined that the actions would not adversely affect spectacled 
eiders because the projects

[[Page 9156]]

occurred during seasons when the eiders are absent and no permanent 
impact to habitat would result or because only a minimal amount of 
habitat would be affected or would occur in areas where the species 
occurs at low densities. In only a few cases have we determined that a 
proposed project included habitat alterations that might adversely 
affect spectacled eiders. Our biological opinions on these 
consultations provided reasonable and prudent measures designed to 
minimize the incidental take of the proposed projects on spectacled 
eiders. When applicable, the reasonable and prudent measures included 
provisions to minimize the proposed project's impact to habitat. 
Therefore, because of the species' abundant habitat on the North Slope 
and the protections provided though the current consultation process, 
we can envision no benefit that critical habitat designation would have 
imparted in the consultations conducted to date. Furthermore, we have 
considered the spectacled eiders conservation needs, and we believe 
that future section 7 consultations on any proposed action on the North 
Slope that would result in an adverse modification conclusion would 
also result in a jeopardy conclusion. Thus, the principal regulatory 
benefit from a critical designation for the spectacled eider on the 
North Slope is expected to be small.
    There are also educational benefits associated with designation as 
critical habitat, such as informing the public which areas are 
important for the long-term survival and conservation of the species. 
Critical habitat could also potentially foster a sense of ownership for 
the resource, encouraging concerned individuals to act as caretakers of 
important habitat. However, such benefits are largely negated by our 
inability to identify specific areas on the North Slope that are 
essential to conservation of the species (i.e., providing meaningful 
educational information is dependent upon the ability to provide 
meaningful information on the conservation needs of the species). 
Furthermore, we have been working closely with North Slope residents 
for years in order to engender support for eider conservation. We have 
worked to eliminate use of lead shot and to minimize subsistence 
harvest. Because of these continuing cooperative efforts, we are 
confident North Slope residents and their local government bodies are 
well aware of the species' plight and the need to address threats and 
protect habitat. Likewise, presumably because the North Slope is 
sparsely populated by humans, relatively few Federal projects occur on 
the North Slope that require consultation under section 7 and most are 
conducted, funded, or permitted by relatively few Federal agencies. As 
a result, the Federal agencies involved with activities on the North 
Slope are aware of the spectacled eider's threatened status and the 
need to consult, and additional educational benefits would be very 
limited. For all these reasons, then, we believe that designation of 
critical habitat has little educational benefit on the North Slope.
    In contrast, the benefits of excluding the North Slope from our 
critical habitat designation appear to be greater than the benefits of 
including it. We acknowledge that some portion of the proposed North 
Slope unit is essential to the recovery of the species. However, as 
discussed above, there is insufficient information available today with 
which to delineate with confidence specific areas essential to the 
recovery of the species. To designate an area at this time, without a 
more reliable biological basis, would likely convey an inaccurate 
message about the size and location of the area needed for recovery. We 
believe there are strong implications regarding habitat importance that 
are associated with critical habitat designation. We believe that we 
have this level of reliable information for the other important 
spectacled eider habitats, but we do not believe that we have 
information that is equally reliable for the North Slope breeding area. 
Delineating critical habitat on the North Slope at this time may 
mislead Federal agencies and others wishing to carry out activities on 
the North Slope about the areas that are truly essential to the 
recovery of the species.
    In summary, at this time the benefits of including the North Slope 
in critical habitat for the spectacled eider include minor, if any, 
additional protection for the eider and would serve little or no 
educational functions. The benefits of excluding the North Slope from 
being designated as critical habitat for the spectacled eider include 
the preservation of partnerships that may lead to future conservation 
actions, and eliminating the negative effects that we believe would 
result from a designation based on limited, unpersuasive biological 
information currently available to us. We have determined that the 
benefits of exclusion of the North Slope from critical habitat 
designation outweigh the benefits of delineating critical habitat on 
the North Slope. Furthermore, we have determined that this exclusion 
will not result in the extinction of the species. Consequently, in 
accordance with subsection 4(b)(2) of the Act, these lands have not 
been designated as critical habitat for the spectacled eider.
    We will continue to protect occupied breeding habitat on the North 
Slope as appropriate through section 7 consultations, the section 9 
prohibition on unauthorized take, and other mechanisms. We will expand 
our conservation efforts with the Native community, industry, local 
governments, and other agencies and organizations on the North Slope to 
address the recovery needs of the eider. Additionally, we will soon 
embark upon a complete revision of the spectacled eider recovery plan, 
and will address our recovery goals for each population. We will 
continue to closely monitor the current population trend of North Slope 
spectacled eiders. We will continue our efforts to develop a visibility 
correction factor (survey information that would allows us to refine 
our population estimates) for this species on the North Slope. This is 
particularly important as the preliminary information suggests the very 
real possibility that the North Slope population may be large enough to 
warrant delisting (see our response to Comment 3), but that our current 
surveys are simply not detecting a high enough proportion of birds to 
indicate that this is the case. We hope to initiate ground-based 
studies outside of currently developed areas to get an indication of 
true breeding density and nesting success for this species on the North 
Slope.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these (or other) areas 
compared to the benefits of including them in the critical habitat 
designation, we may revise this final designation accordingly. 
Similarly, if new information indicates any of these areas should not 
be included in the critical habitat designation, we may revise this 
final critical habitat designation. If, consistent with available 
funding and program priorities, we elect to revise this designation, we 
will do so through a subsequent rulemaking.
    Although we also proposed to designate as critical habitat all 
marine waters within 40 km (21.6 nm) of the terrestrial portion of our 
proposed North Slope Unit, we have not designated these waters as 
critical habitat in our final rule. Our information on the importance 
of the Beaufort Sea to migrating spectacled eiders, in both spring and 
fall, does not currently support designation of critical habitat.
    Only one spectacled eider was observed among 420,000 eiders 
migrating past point Barrow during

[[Page 9157]]

spring (Woodby and Divoky 1982), suggesting that either the timing of 
this survey was not concurrent with spectacled eider spring migration, 
or spectacled eiders do not migrate along the Beaufort Sea coast in 
spring. Little else is known of North Slope spectacled eider spring 
migration routes.
    During Beaufort Sea sea duck and waterbird surveys flown from shore 
to 81 km (43.7 nm) offshore during June, July, August, and September 
1999, biologists observed only two flocks of eiders, both with four or 
fewer birds per group. (Bill Larned, Service, MBM, pers. comm. 1999; 
TERA 1999). No spectacled eiders were observed on these offshore 
surveys during June and July, nor were spectacled eiders seen on 
surveys of the near shore lagoon areas and within bays. However, eider 
species in summer plumage are exceedingly difficult to distinguish from 
one another on aerial surveys. Nine groups of unknown eiders were 
observed in the vicinity of Harrison Bay between August 31 and 
September 2, 1999. Aerial observers hypothesize that spectacled eider 
family groups use the waters offshore of the Colville River Delta and 
west, and within Harrison Bay during the summer (Bill Larned, Service, 
MBM, pers. comm. 1999). Satellite telemetry supports this hypothesis. 
Most satellite-tagged post-nesting female spectacled eiders from 
Prudhoe Bay used Harrison Bay briefly (5 of 13 tagged birds were 
detected there once from satellite telemetry data that is acquired 
every 3 days, another 5 of 13 were detected there twice, resulting in a 
mean residence time of at least 4 days) (TERA 1999). Satellite 
telemetry data from 2000 did not indicate that Harrison Bay received 
much use by eiders. However, none of the birds that were implanted with 
transmitters during the summer of 2000 were successful breeders (i.e., 
if Harrison Bay is used during brood rearing, birds without broods may 
not have reason to go there) (Declan Troy, TERA, pers. comm. 2000). 
Satellite telemetry indicates that molt migration and fall migration of 
North Slope spectacled eiders from Prudhoe Bay and points east takes 
place in the offshore waters of the Beaufort and Chukchi Seas (Peterson 
et al. 1999). We believe that the Beaufort and Chukchi seas may contain 
important habitat for eiders that nest west of Prudhoe Bay as well.
    Although satellite telemetry confirms the use of these offshore 
waters by many of the post-breeding spectacled eiders from Prudhoe Bay 
(Petersen et al. 1999, TERA 1999), the duration of use is best 
described in terms of days rather than weeks or months. We do not know 
if birds are feeding in these waters, are loafing, or are acclimating 
from a freshwater environment to one of saltwater. Without better 
information explaining how the spectacled eiders use this marine area, 
we are unable to determine which, if any, physical or biological 
features within the area contribute towards the conservation of the 
species (e.g. the primary constituent elements would likely differ if 
the birds use the area primarily for loafing or acclimating to 
saltwater versus if they are feeding in the area). We do know that the 
spectacled eiders do not nest, molt, or winter in this marine area. We 
also know that they do not concentrate in the area or appear to use it 
for any great length of time. Use of the area is perhaps best described 
as a migration corridor, and perhaps as a brood staging area prior to 
migration. We do not have enough information to conclude that this 
area, or any portion thereof, is necessary for successful nesting, 
molting or wintering, all critical life stages for this species. 
Therefore, based upon our knowledge at this time, we do not believe 
that this marine area is essential to the conservation of the species.

Unit 3: Norton Sound (Proposed Unit 6)

    We reduced the size of proposed Unit 6, the Norton Sound Unit, from 
17,502 km2 (6757.5 mi2) to 10,586 km2 
(4087.3 mi2), a 40 percent reduction in size (Table 2). This 
modification was based upon information gained from overlaying our 
eider observations and satellite telemetry locations upon digital 
bathymetry data from the National Oceanic and Atmospheric 
Administration (NOAA) and information obtained from eider experts. Only 
one spectacled eider observation and three satellite derived locations 
have occurred in the excluded portions of this proposed area from 1993-
1999. None of these observations occurred in Norton Bay, one of the 
excluded portions of this unit. We do not know whether any of the 
observations within the excluded area along the western edge of this 
unit represent molting birds. We are fairly certain, however, that 
birds do not congregate in this excluded area to molt, and suspect that 
our sparse observations of birds in the excluded portion of this unit 
represent birds on their way from the breeding grounds to the molting 
grounds or from the molting grounds to the wintering grounds. 
Consequently, we have determined, based upon the likelihood that birds 
do not normally molt in the excluded area, and the low level of eider 
use received by the excluded area, that the excluded areas are not 
essential to the conservation of the species.
    While the recovery plan for the spectacled eider does not identify 
recovery goals specifically for molting habitat, it is clear that if 
the Norton Sound molting area were destroyed or degraded so that it was 
no longer able to be utilized by the species, the recovery and the 
conservation of the Y-K Delta population of the species would be 
imperiled. We believe that the entire area within our modified border 
is essential to the conservation of the species due to--(1) the 
extremely high and regular use of the area for an extended period of 
time by birds that are known to be undergoing a flightless molt; (2) 
the high biomass of gastropods in the area; (3) the energetic demands 
placed upon the birds while they are molting; and (4) the assertion by 
Petersen et al. (1999), that it is the only documented molting area for 
breeding female spectacled eiders from the Y-K Delta (the area where 
eiders have declined by 96 percent). As many as 4,030 spectacled eiders 
have been observed in one portion of eastern Norton Sound at one time 
(Larned et al. 1995a). Use of this area by molting eiders has been 
documented regularly from 1982 to 1999 (Charles Lean, ADFG, pers. comm. 
1999; Bill Larned, Service, MBM, pers. comm. 1999; Petersen et al. 
1999). The area is used by spectacled eiders from mid-July until the 
end of October (Petersen et al. 1999). For several weeks during this 
time, each bird experiences a period of flightlessness during molt, 
followed by the energetic demands incurred by feather growth. Energy 
needs of waterfowl during molt are high (Hohman et al. 1992). The 
benthic biomass in the portion of Norton Sound that spectacled eiders 
inhabit apparently meets the high metabolic needs for the many birds 
that molt there. Indeed, the abundance of large gastropods is higher in 
this area than elsewhere in Norton Sound (Springer and Pirtle 1997).
    We believe that special management considerations and protections 
may be needed for these essential features (constituent elements) found 
within Unit 3, because a fuel distribution hub for western Alaska 
exists in Norton Sound and large volumes of heating oil, diesel fuel, 
and gasoline are transported through this area each year. If a release 
of these materials occurs at any time of year such that it affects the 
benthic community used by eiders for food or if a release occurs such 
that it affects the eiders directly, the consequences to the Y-K Delta 
breeding population could prove catastrophic for the species. In 
addition, we understand that a

[[Page 9158]]

commercially viable snail fishery may exist in the vicinity, and future 
overexploitation of the snail resource could result in adverse 
modification of critical habitat and subsequent harm to the most 
imperiled spectacled eider breeding population.

Unit 4: Ledyard Bay (Proposed Unit 7)

    We reduced the size of proposed Unit 7, the Ledyard Bay Unit, from 
21,688 km2 (8,373.7 mi2) to 12,369 km2 
(4775.7 mi2), a 43 percent reduction in size (Table 2). We 
modified the borders of this unit based upon traditional Native 
environmental knowledge, information gained from overlaying our 
observations upon NOAA digital bathymetry data, and advice from eider 
experts.
    Local Natives have observed that spectacled eiders do not venture 
near shore in Ledyard Bay, stating that they are exploiting krill 
populations which remain at least several miles offshore. Although we 
do not know anything about the dietary preferences of eiders in this 
area, satellite telemetry and aerial survey data confirm the 
observation that the birds congregate more than 1 nm offshore. 
Therefore, we concluded that waters in the eastern and southern 
portions of this unit within 1 nm of the shore do not contain the 
physical or biological features essential to the conservation of the 
species and have excluded them from our final designation.
    Digital bathymetry data from NOAA indicates that spectacled eiders 
in Ledyard Bay make almost exclusive use of waters between 5 and 25 m 
(16.4 to 82.0 ft) in depth. We have modified the description of primary 
constituent elements to reflect the information gained from our 
bathymetric overlay. This change in description of the primary 
constituent elements leads us to conclude that the western portion of 
this unit does not contain the physical or biological features 
essential to the conservation of the species. The western portion of 
the area that we excluded from final critical habitat designation 
exceeds 25 m (82.0 ft) in depth, except for two small disjunct areas 
that are between 20-25 m in depth where no eiders have been documented. 
Only three satellite-derived locations have been recorded in the 
western excluded portions of this proposed area from 1993-1999. These 
satellite fixes could easily be from birds that were on their way from 
the molting area to their wintering area south of St. Lawrence Island. 
We have never made direct observations of spectacled eiders in these 
excluded waters.
    While the recovery plan for the spectacled eider does not identify 
recovery goals specifically for molting habitat, it is clear that if 
the Ledyard Bay molting area were destroyed or degraded so that it was 
no longer able to be utilized by the species, the recovery and the 
conservation of the North Slope population of the species would be 
imperiled. We believe that the entire area within our modified border 
is essential to the conservation of the species due to--(1) the 
extremely high use of the area by birds that are known to be undergoing 
a flightless molt; (2) the energetic demands placed upon the birds 
while they are molting; and (3) the assertion by Petersen et al. (1999) 
that it is the principle molting area for breeding female spectacled 
eiders from the North Slope, and most female birds molting here are 
from the North Slope (Petersen et al. 1999).
    Male spectacled eiders from the North Slope appear to molt and 
stage in equal numbers in Ledyard Bay and the two primary molting areas 
in Russia: Mechigmenskiy Bay and off the coast of the Indigirka and 
Kolyma River Deltas (Petersen et al. 1999). Ledyard Bay is used by 
eiders from late June through mid-October (Petersen et al. 1999). As 
stated earlier, the energy needs of birds during molt is high. Given 
the large concentrations of eiders in Ledyard Bay and the ability of 
the benthos in this area to meet the energy requirements of spectacled 
eiders during molt, we believe that Ledyard Bay is essential to the 
conservation of the species.
    Spectacled eiders molting in Ledyard Bay may be particularly 
susceptible to disturbance because they occur in dense concentrations 
and are flightless for several weeks. Aerial surveys in September 1995 
found 33,192 spectacled eiders primarily concentrated in a 37 km (20.0 
nm) diameter circle in Ledyard Bay (Larned et al. 1995b). This set of 
observations represents eider use during a snapshot of time. Satellite 
telemetry information indicates that other portions of Ledyard Bay are 
used as well. We are unaware of the volume of shipping traffic that 
occurs in this area. However, we note that a single ill-timed fuel or 
oil-spill in this area could potentially harm thousands of eiders. If a 
release of these materials occurs at any time of year such that it 
affects the benthic community used by eiders for food or if a release 
occurs such that it affects the eiders directly, the consequences to 
the North Slope breeding population could prove catastrophic for the 
species. Therefore, we believe special management considerations or 
protections may be required.

Unit 5: Wintering Area (Proposed Unit 8)

    We did not alter the boundary of Unit 5 (proposed Unit 8), the 
Wintering Area Unit. However, we did modify our definition of primary 
constituent elements for this unit to include only those marine waters 
less than or equal to 75 m (246.1 ft) in depth (the proposal included 
all waters, regardless of depth), along with the associated marine 
aquatic flora and fauna in the water column, and the underlying marine 
benthic community. Information gained from overlaying our observations 
upon NOAA digital bathymetry data indicated that wintering eiders do 
not make use of waters over 75 m (246.1 ft) deep. Therefore, waters 
within Unit 8 that are greater than or equal to 75 m (246.1 ft) do not 
appear to contain the physical or biological features that are 
essential to the conservation of the species.
    Prior to the formation of sea ice in the area, spectacled eiders 
inhabit waters directly south of Powooiliak Bay, St. Lawrence Island, 
moving farther off shore as winter progresses. Once ice forms, 
spectacled eiders from all three main breeding populations (Y-K Delta, 
North Slope, and Arctic Russia) concentrate within a 50-km (27.0 nm) 
diameter circle in small openings in the sea ice (Service 1999a). The 
location of this area changes between and within years, often just 
slightly, but sometimes dramatically. The distribution of wintering 
eiders overlapped for the surveys conducted in late winter of 1996-
1999, but was far removed from that area in 1995 (Larned and Tiplady 
1999). The most recent estimate of the number of spectacled eiders 
wintering in this area is 374,792  3,514 birds (x 
 2SE) (Larned and Tiplady 1999). Most, perhaps all, of the 
worldwide population of spectacled eiders congregates for several 
months in this small portion of the central Bering Sea.
    Spectacled eiders typically winter south and southwest of St. 
Lawrence Island in the central Bering Sea; they wintered in the same 
place in 4 of the 5 years since the discovery of their wintering area. 
In the year when they are known to have wintered elsewhere, they were 
found further south and east between St. Lawrence and St. Matthew 
Islands. Our critical habitat boundary includes both areas. We do not 
believe that our best scientific information warrants restricting the 
borders we have drawn around this species' wintering area. Our 
observations of wintering eiders made thus far have occurred during 
relatively mild winters. It is likely that spectacled eiders will use 
different locations within this critical

[[Page 9159]]

habitat area depending on ice conditions, which are variable throughout 
time. Ice conditions in this area are a function of many unpredictable 
environmental variables, including atmospheric temperature, wind 
direction and velocity, oceanic currents and temperature of surface 
waters. It is true that during most winters, the birds make use of a 
relatively small portion of this area. However, during periods of 
extreme weather, they may be precluded from using this favored area by 
heavy ice conditions, such as occurred during March 1995. During such 
times, other portions of the wintering area that are seldom used may 
become critically important to the survival of the species.
    While the recovery plan for the spectacled eider does not identify 
recovery goals specifically for wintering habitat, since the entire 
worldwide population of the species appears to congregate in this area 
for months at a time, if the area were destroyed or degraded so that it 
was no longer able to be utilized by the species, the recovery and the 
conservation of the species would be jeopardized. Consequently, we 
consider the entire area within our designated borders to be essential 
to the conservation of the species.
    The ecosystem of the Bering Sea seems to be in flux, as indicated 
by population declines in many of its resident species (e.g., harbor 
seal (Phoca vitulina richardsi), northern fur seal (Callorhinus 
ursinus), Steller's sea lion (Eumetopias jubatus), Aleutian population 
of the sea otter (Enhydra lutris), Steller's eider, spectacled eider, 
scoters (Melanitta spp.), and long-tailed duck (Clangula hyemalis)) 
(National Research Council 1996). We do not know what is causing these 
declines or if these apparent changes are human-caused or influenced. 
However, because the worldwide population is congregated in this one 
location, we believe that special management considerations and 
protections may be needed to conserve the essential habitat features 
(constituent elements) found there.

Elsewhere in the Species Range

    We have a recent record of a single spectacled eider nest on St. 
Lawrence Island (Shawn Stephensen, Service, pers. comm. 1998). We are 
unaware of any reports suggesting that this area is essential to the 
conservation of the species, and we have no other recent breeding 
records outside of the previously discussed breeding areas. We 
occasionally receive reports of spectacled eiders wintering near the 
Pribilof Islands, or occurring during spring, summer, or autumn in 
Kuskokwim Bay in low numbers. We consider the occurrences of birds in 
these locations to be accidental or occasional in nature. We are 
unaware of any information that indicates that there are other waters 
within the United States, other than those that we have designated as 
critical habitat, that are essential to the conservation of the 
species. We are aware of a report of spectacled eiders nesting at 
locally high densities southeast of Kipnuk, Alaska (Brian McCaffery, 
Service, 2000 pers. comm). This area is of unknown size and is outside 
of our aerial survey boundary. We have been unable to place crews on 
the ground in this location to gather subsequent data, but we expect to 
do so in the 2001 field season.

Summary of Critical Habitat Designation

    We have designated critical habitat on the Y-K Delta, in Norton 
Sound, Ledyard Bay, and the waters between St. Lawrence and St. Matthew 
Islands. We believe all of these areas meet the definition of critical 
habitat in that they contain physical or biological elements essential 
for the conservation of the species and may require special management 
considerations or protection. Designation of these areas will highlight 
the conservation needs of the species, and perhaps increase the degree 
to which Federal agencies fulfill their responsibilities under section 
7(a)(1) of the Act.
    In accordance with the regulations implementing the listing 
provisions of the Act (50 CFR 424.12(h)), we have not proposed any 
areas outside the jurisdiction of the United States (e.g., within 
Russian waters).
    In addition to the areas that we have designated as critical 
habitat, other areas currently used by spectacled eiders include 
Alaska's North Slope and its coastal waters, portions of the Y-K Delta 
outside of our critical habitat border, coastal waters of the Y-K 
Delta, the Seward Peninsula, St. Lawrence Island, elsewhere between the 
Y-K Delta and North Slope, and migratory corridors. In addition, there 
may be other areas important to this species that are unknown to us. 
Our best available information did not suggest that there is any 
currently unoccupied habitat that is essential to the conservation of 
this species, therefore none was designated.
    The areas we have designated as critical habitat are those areas 
that we determined, based on the best available commercial and 
scientific information, are essential to the conservation of spectacled 
eiders. Should additional information on the value of any area to 
spectacled eiders become available, we will consider that information 
in future critical habitat decision making processes.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. Individuals, organizations, 
states, local governments, and other non-Federal entities are affected 
by the designation of critical habitat only if their actions occur on 
Federal lands, require a Federal permit, license, or other 
authorization, or involve Federal funding.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated or proposed. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory. If a species is listed or critical 
habitat is designated, section 7(a)(2) requires Federal agencies to 
ensure that actions they authorize, fund, or carry out are not likely 
to jeopardize the continued existence of such a species or to destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency (action agency) must enter into consultation with us. 
Through this consultation we would ensure that the permitted actions do 
not destroy or adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR

[[Page 9160]]

402.02 as alternative actions identified during consultation that can 
be implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation with us on actions for which formal consultation has been 
completed if those actions may affect designated critical habitat. 
Further, some Federal agencies may have conferenced with us on proposed 
critical habitat. We may adopt the formal conference report as the 
biological opinion when critical habitat is designated, if no 
significant new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the spectacled eider or 
its critical habitat will require section 7 consultation. Activities on 
private or state lands requiring a permit from a Federal agency, such 
as a permit from the U.S. Army Corps of Engineers (Army Corps) under 
section 404 of the Clean Water Act, or some other Federal action, 
including funding (e.g., from the Federal Highway Administration, 
Federal Aviation Administration, or Federal Emergency Management 
Agency) will also continue to be subject to the section 7 consultation 
process. Federal actions not affecting listed species or critical 
habitat and actions on non-Federal lands that are not federally funded 
or permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action that may adversely modify such 
habitat or that may be affected by such designation. Activities that 
may result in the destruction or adverse modification of critical 
habitat include those that alter the primary constituent elements to an 
extent that the value of critical habitat for both the survival and 
recovery of the spectacled eider is appreciably reduced. We note that 
such activities may also jeopardize the continued existence of the 
species. Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly adversely affect critical 
habitat include, but are not limited to:
    (1) Removing, disturbing, or destroying spectacled eider habitat 
(as defined in the primary constituent elements discussion), whether by 
paving, covering, draining, impounding, hydrologically altering, 
contaminating, or otherwise altering through mechanical means or 
through ecological disruption (e.g., gravel pad construction, travel by 
motorized vehicle across unfrozen tundra, overharvest of marine 
organisms, fuel transport and related fueling operations, introduction 
of contaminants, operation of open landfills, use of lead shot while 
hunting); and
    (2) Appreciably decreasing habitat value or quality through 
indirect effects (e.g., noise, operation of open landfills and other 
activities that may enhance predator populations or concentrate them 
near eider habitat, disturbance of benthic communities through 
trawling, offal discharge, and harvest of benthic organisms).
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of both the survival and 
recovery of a listed species. Actions likely to result in the 
destruction or adverse modification of critical habitat are those that 
would appreciably reduce the value of critical habitat for both the 
survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to result in the destruction or 
adverse modification of critical habitat would almost always result in 
jeopardy to the species concerned, particularly when the area of the 
proposed action is occupied by the species concerned. In those cases, 
critical habitat provides little additional protection to a species, 
and the ramifications of its designation are few or none. However, if 
occupied habitat becomes unoccupied in the future, there is a potential 
benefit from critical habitat in such areas.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
include, but are not limited to:
    (1) Regulation of activities affecting waters of the United States 
by the Army Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Regulation of commercial fisheries by the National Marine 
Fisheries Service;
    (4) Law enforcement in United States Coastal Waters by the U.S. 
Coast Guard;
    (5) Road construction and maintenance by the Federal Highway 
Administration;
    (6) Regulation of airport improvement activities by the Federal 
Aviation Administration jurisdiction;
    (7) Military training and maneuvers on applicable DOD lands;
    (8) Regulation of subsistence harvest activities on Federal lands 
by the U.S. Fish and Wildlife Service;
    (9) Regulation of mining and oil development activities by the 
Minerals Management Service;
    (10) Regulation of home construction and alteration by the Federal 
Housing Authority;
    (11) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (12) Construction of communication sites licensed by the Federal 
Communications Commission;
    (13) Wastewater discharge from communities and oil development 
facilities permitted by the Environmental Protection Agency; and
    (14) Other activities funded by the U. S. Environmental Protection 
Agency, Department of Energy, or any other Federal agency.
    All areas designated as critical habitat are within the 
geographical area occupied by the species, and contain the physical or 
biological features that are likely to be used by spectacled eiders 
during portions of the year, or under certain environmental and 
climatic conditions during some years. Thus, we consider all critical 
habitat to be

[[Page 9161]]

occupied by the species. Federal agencies already consult with us on 
activities in areas currently occupied by the species or if the species 
may be affected by the action to ensure that their actions do not 
jeopardize the continued existence of the species. Thus, we do not 
anticipate additional regulatory protection will result from critical 
habitat designation.

     Table 3.--Activities Potentially Affected by Spectacled Eider Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                         Additional activities
                                           Activities involving a federal action      involving a federal action
      Categories of activities         potentially affected  by species listing only   potentially  affected by
                                                            \1\                            critical habitat
                                                                                            designation \2\
----------------------------------------------------------------------------------------------------------------
Federal activities potentially        Activities that the Federal Government carries  None.
 affected \3\.                         out such as scientific research, land
                                       surveys, law enforcement, oil spill response,
                                       resource management, regulation of commerce,
                                       and construction/expansion of physical
                                       facilities.
Private activities Potentially        Activities that also require a Federal action   None.
 Affected \4\.                         (permit, authorization, or funding) such as
                                       scientific research, commercial fishing,
                                       sport and subsistence hunting, shipping and
                                       transport of fuel oil and, and village
                                       maintenance, construction and village
                                       expansion.
----------------------------------------------------------------------------------------------------------------
\1\ This column represents impacts of the final rule listing the spectacled eider (May 10, 1993) (58 FR 27474)
  under the Endangered Species Act.
\2\ This column represents the impacts of the critical habitat designation above and beyond those impacts
  resulting from listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal authorization or funding.

    We recognize that designation of critical habitat may not include 
all of the habitat areas that may eventually be determined to be 
necessary for the recovery of the species. For these reasons, all 
should understand that critical habitat designations do not signal that 
habitat outside the designation is unimportant or may not be required 
for recovery. Areas outside the critical habitat designation will 
continue to be subject to conservation actions that may be implemented 
under section 7(a)(1) and to the regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the section 9 take prohibition, 
as determined on the basis of the best available information at the 
time of the action. We specifically anticipate that federally funded or 
assisted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available to these planning efforts calls for a 
different outcome.

Summary of Comments and Recommendations

    Our critical habitat proposal was submitted to the Federal Register 
on February 1, 2000, and was published in the Federal Register on 
February 8, 2000 (65 FR 6114). In it, we requested that all interested 
parties submit comments during the public comment period on the 
specifics of the proposal including information, policy, and proposed 
critical habitat boundaries as provided in the proposed rule. The 
comment period was initially open from February 8, 2000, until May 8, 
2000. On April 19, 2000 (65 FR 20938), we published a notice in the 
Federal Register extending the closing date for the open public comment 
period from May 8, 2000, to June 30, 2000. On July 5, 2000 (65 FR 
41404), we published a notice in the Federal Register again extending 
the closing date for the open public comment period from June 30, 2000, 
to August 31, 2000. On August 24, 2000 (65 FR 91577), we published a 
notice in the Federal Register announcing the availability of our draft 
economic analysis and extending the closing date for the open public 
comment period; from August 31, 2000, to September 25, 2000. The 
resulting comment period lasted from February 8, 2000, to September 25, 
2000 (231 days).
    We extended the comment period on these three occasions to 
accommodate Alaska Natives, who spend considerable time away from their 
homes engaged in subsistence activities. The third extension also 
allowed for public comment on our draft economic analysis.
    We solicited comments from all interested parties, and we 
particularly sought comments concerning spectacled eider distribution 
and range, whether critical habitat should be designated, and 
activities that might impact spectacled eiders. Notice of the proposed 
rule was sent to appropriate State agencies, Alaska Native regional 
corporations, borough and local governments, Federal agencies, 
scientific and environmental organizations, fishing and oil industry 
representatives, and other interested parties. In total, we sent copies 
of our proposal and a request for input to over 300 entities.
    We discussed our spectacled eider critical habitat proposal at the 
following venues throughout Alaska: eider critical habitat public 
meetings for agency, industry, Native, and environmental organization 
representatives at our Region 7 Regional Office, Anchorage on February 
1 and 2, 2000; briefing of the Association of Village Council 
Presidents staff in Bethel on February 7, 2000; Alaska Forum on the 
Environment in Anchorage on February 9, 2000; eider critical habitat 
public meeting in Barrow on February 16, 2000; Waterfowl Conservation 
Committee meeting in Bethel from February 22-24, 2000; eider critical 
habitat public meeting in Toksook Bay on February 25, 2000; eider 
critical habitat public meeting in Chevak on March 1, 2000; Nome Eskimo 
Community IRA Tribal Council meeting in Nome on May 5, 2000; eider 
critical habitat public meeting in Nuiqsut on August 21, 2000; eider 
critical habitat public meeting in Wainwright on August 23, 2000; eider 
critical habitat public meeting in Point Lay on August 24, 2000; eider 
critical habitat public meeting in Atqasuk on August 25, 2000; eider 
critical habitat public hearing in Barrow on August 28, 2000 (65 FR 
46684); eider critical habitat public meeting in Sand Point on 
September 18, 2000; eider critical habitat meeting with Sand Point 
local tribal council in Sand

[[Page 9162]]

Point on September 19, 2000; eider experts meeting at the Campbell 
Creek Science Center in Anchorage on September 21-22, 2000; eider 
critical habitat meeting with Kodiak Regional Advisory Council in Cold 
Bay on September 27, 2000; and an eider critical habitat meeting for 
the Bristol Bay Regional Council in Naknek on October 13, 2000. At 
those meetings held outside of the public comment period, we presented 
information only; public comment was not sought or accepted. When 
possible and appropriate, we publicized our public meetings through 
newspaper and radio advertisements.
    The required legal notices announcing publication of our critical 
habitat proposal appeared in the Anchorage Daily News on February 10, 
13, and 16, 2000, in the Bristol Bay Times on February 10, 2000, and in 
the Tundra Drums on February 17, 2000.
    We entered comments received after February 8, 2000, and postmarked 
or received by September 25, 2000, into the administrative record. All 
comments, notes from public meetings, and the transcript for the public 
hearing held in Barrow are available for inspection (see ADDRESSES 
section).
    We requested three scientists with expertise in eider biology to 
peer review the proposed critical habitat designation. All three 
submitted comments and these comments have been taken into 
consideration in the final rule.
    We received a total of 327 oral and written comments during the 
comment period. Oral comments received during public meetings were 
recorded by topic; we did not record how many individuals made the same 
comment at each meeting. During our public hearing, eight of the 
commenters submitted oral testimony only, and seven submitted both oral 
and written testimony. In total we received comments as follows: Ten 
from officials representing Federal Agencies, two from elected Federal 
officials, three from State agencies, three from elected State 
officials, nine from local governments, 23 from Native organizations, 
and 277 from individuals, private companies, and non-Native 
organizations. We reviewed all comments received for substantive issues 
and new data regarding spectacled eiders and critical habitat. We 
grouped comments of a similar nature into four general issues relating 
specifically to the proposed critical habitat determination and draft 
economic analysis on the proposed determination: Biological 
Justification and Methodology, Policy and Regulations, Economic Issues, 
and Other Relevant Issues. These are addressed in the following 
summary.

Issue 1: Biological Justification and Methodology

    Comment 1: Many respondents had comments concerning habitat as a 
factor in the species conservation, including statements indicating 
that habitat is not limiting the species population size, habitat loss 
was not a threat to the species, loss of breeding habitat did not cause 
the decline and was not limiting recovery of this species, and critical 
habitat was not needed for survival and recovery.
    Our response: The information available when the species was listed 
in 1993 did not indicate that habitat loss or degradation was 
considered to be a threat to the species. However, we have gathered a 
considerable amount of information in the past seven years. Among other 
things, we have learned that habitat degradation on the Y-K Delta 
resulting from deposition of lead shot is probably limiting recovery of 
this species, and may have contributed to the observed 96 percent 
decline. In addition, organic deposition and benthic biomass in the 
wintering area south of St. Lawrence Island have declined steadily 
since the late 1980s. Oceanographic studies during late winter (March-
April 1999) found that particulate organic carbon concentrations in the 
water column were too low to support significant populations of large 
zooplankton or krill, indicating that spectacled eiders must be feeding 
on the bottom. Moreover, a long-term trend in benthic communities 
continues: the formerly abundant bivalve Macoma calcarea has declined 
relative to another clam Nuculana radiata, which has 76 percent lower 
lipid content and 26 percent lower energy density (J.R. Lovvorn, Univ. 
Wyoming, pers. comm. 2000). The average length and mass of bivalves 
presumably preferred as food by spectacled eiders has also declined in 
the long term (J.M. Grebmeier and B.I. Sirenko, unpubl. data). Taken 
together, these factors suggest a deterioration of habitat conditions 
favorable to spectacled eiders on their Y-K Delta breeding grounds and 
Bering Sea wintering area. We do not know to what extent contaminants, 
increased predation, and increased human disturbance are degrading the 
quality of eider habitats. However, we note that a ill-timed fuel or 
oil-spill in wintering or molting areas could potentially harm 
thousands of eiders.
    An examination of threats that are limiting a species survival and 
recovery and to what degree the threats are limiting are key components 
of our decision of whether a species warrants listing as threatened or 
endangered. For the spectacled eider, that determination was made in 
1993 when the species was listed.
    After we decide that a species warrants listing, the Act directs us 
to identify and designate critical habitat. For those areas within the 
current range of the species, critical habitat can be any area that 
contains physical or biological features that are essential to the 
conservation of the species and that may require special management 
consideration or protection. For areas outside the current range of the 
species, critical habitat can be any area that is considered essential 
for the conservation of the species; we need not consider whether 
special management consideration or protection is needed. Based upon 
what we have learned about lead shot in the environment on the Y-K 
Delta, and what we are learning about clam population changes on the 
spectacled eider wintering grounds, we cannot conclude that habitat 
degradation is not a factor adversely impacting the species (i.e., 
these areas may require special management). Our evaluation of the 
available information shows that the areas we have designated are 
essential to the species and may require special management 
consideration or protection.
    As for whether critical habitat is needed for survival and 
recovery, the Act obligates us to designate, to the maximum extent 
prudent, those areas that meet the definition of critical habitat. It 
does not require us to determine that the act of designating land as 
critical habitat is a necessary step in ensuring the survival or 
achieving the recovery of the species.
    Comment 2: Many respondents stated that they thought there was no 
new data or insufficient data to warrant a reversal of our previous 
``not prudent'' finding, or to support designation of critical habitat 
as proposed; the reasons for the birds decline are unknown.
    Our response: We invite interested parties to inspect the volumes 
of new scientific information gathered since the listing of this 
species in 1993. As a result of this new information, we now have a 
much better idea of which habitats are essential to spectacled eider 
conservation.
    Additionally, several of our past determinations that critical 
habitat designation would not be prudent have been overturned by courts 
in recent years (e.g., Natural Resources Defense Council v. U.S. 
Department of the Interior, 113 F. 3d 1121 (9th Cir. 1997); 
Conservation Council for Hawaii v.

[[Page 9163]]

Babbitt, 2 F. Supp. 2nd 1280 (D. Hawaii 1998)). Although this 
information is not biological in nature, we reassessed the potential 
benefits from a critical habitat designation in light of these 
decisions.
    We believe that new biological information, and the recent court 
rulings, support our conclusion that the designation of critical 
habitat is prudent. Should credible, new information suggest that our 
designation should be modified, we will reevaluate our analysis and, if 
appropriate, propose to modify this critical habitat designation. In 
reaching our current decision, we have considered the best scientific 
and commercial information available to us at this time, as required by 
the Act.
    Comment 3: Several respondents stated that because the species was 
not declining on the North Slope, it made no sense to designate 
critical habitat there. Several respondents also suggested that the 
North Slope population of spectacled eiders may warrant delisting.
    Our response: It is true that there is no historical trend data on 
nesting abundance or distribution for spectacled eiders on the North 
Slope. However, recent trend data for the North Slope portion of the 
spectacled eider breeding area indicate that the North Slope population 
may be in decline over the period 1993-2000, although the trend is not 
statistically significant. The downward trend of 2.6 percent per year 
is bounded by a 90 percent confidence interval ranging from a 7.7 
percent decline per year to a 2.7 percent increase per year (Service, 
unpubl. data). Furthermore, we note that since our spectacled eider 
surveys began in 1992, the minimum population estimate has never 
approached the delisting threshold of 10,000 pairs. In fact, for 6 of 
the 8 years, the population meets one of the criteria for 
reclassification to endangered (``minimum estimated population size is 
3000 breeding pairs for  year''). However, the preliminary 
information (albeit limited) also suggests the very real possibility 
that the North Slope population may be large enough to warrant 
delisting, but that our current surveys are simply not detecting a high 
enough proportion of birds to indicate that this is the case. If future 
data indicate that this species, or any distinct vertebrate population 
segment no longer warrants protection under the Act, we will propose 
removing the species or that segment from the list of threatened and 
endangered species. As discussed above, however, we have not designated 
critical habitat on the North Slope in accordance with section 4(b)(2) 
of the Act.
    Comment 4: Several respondents commented extensively on the final 
recovery plan for the spectacled eider, noting, among other things, 
that the delisting thresholds are exceedingly conservative.
    Our response: As to the recovery plan, we are unable to incorporate 
the commenters suggestions into this already-approved recovery plan, as 
the public comment period has long-since closed (February 23, 1995; 59 
FR 53660). We will, however, keep these comments on file and consider 
them when this approved recovery plan is revised. Until such a revision 
is approved, we are adhering to the recovery criteria in the approved 
recovery plan.
    The delisting criteria cited by the commenters from the spectacled 
eider recovery plan states that ``* * * the minimum estimated 
population size is 10,000 breeding pairs over  3 
surveys (1 survey/year, with surveys preferably being consecutive) or 
the minimum estimate of abundance exceeds 25,000 breeding pairs in any 
one survey.'' The commenters state that minimum population estimates 
have exceeded this threshold twice, and suggest that the 1999 survey 
data may result in this population meeting the delisting threshold for 
a third time.
    We note that the commenters are mistaken in the interpretation of 
our survey data on several counts. The survey estimates they cite as 
exceeding 10,000 pairs are not minimum population estimates, they are 
point estimates. Minimum population estimates, as defined in the 
recovery plan, are the lower 95 percent confidence limits of the survey 
or the actual number of birds seen on the survey. In addition, they 
mistakenly cite an estimate of the number of breeding birds as an 
estimate for the number of breeding pairs. To get the minimum 
population estimate for the number of breeding pairs, one must divide 
the minimum population estimate of the number of breeding birds in 
half. Thus, recent minimum population estimates for the number of pairs 
of spectacled eiders comprising the North Slope breeding population are 
as follows: for 1993: 3,669; for 1994: 2,828; for 1995: 2,803; for 
1996: 2,179; for 1997: 2,107; for 1998: 3,800; for 1999: 2,679; and for 
2000: 2,567. In none of the years does the minimum population estimate 
even approach the delisting threshold of 10,000 pairs. In fact, for 6 
of the 8 years, the population meets one of the criteria for 
reclassification to endangered (``minimum estimated population size is 
3000 breeding pairs for  year''). However, the preliminary 
information (albeit limited) also suggests the very real possibility 
that the North Slope population may be large enough to warrant 
delisting, but that our current surveys are simply not detecting a high 
enough proportion of birds to indicate that this is the case.
    The commenters suggest that, with the application of a visibility 
correction factor, the minimum population estimate for delisting may be 
reached. We note that to validly apply a visibility correction factor 
to achieve a minimum population estimate, as suggested by the 
commenters, we must also incorporate the variance of the visibility 
correction factor into the final minimum population estimate. At 
present, we do not have a usable visibility correction factor for 
spectacled eiders due to the wide confidence limits around the 
correction factor thus far derived. We note that development of a 
useful visibility correction factor is a high priority for future work.
    Comment 5: Several respondents stated that we need to base our 
decisions on objective studies based on science.
    Our response: We believe that all of the studies that we used as a 
basis for our decisions were scientifically sound and objective. The 
respondents were not specific in saying which documents or studies they 
felt were non-objective or unscientific. All of the studies that we 
used in our decision-making process are part of our administrative 
record.
    Comment 6: Several respondents stated that they thought our 
critical habitat proposal included areas not used by the species, 
specifically, that the Ledyard Bay molting area was extended too far 
west, and contained nearshore waters not used by spectacled eiders. 
They also believed the proposed wintering area was too large given the 
areas that the birds have been observed using.
    Our response: We have adjusted the boundary of the Ledyard Bay 
wintering area unit to better reflect patterns of use during the time 
in which this species molts and stages there during fall. This change 
is based upon aerial observations, satellite transmitter data, 
bathymetry data and traditional Native knowledge regarding eider use of 
these waters obtained during the public comment period. Waters within 1 
nm of shore between Cape Lisburne north to Icy Cape are not within our 
final designation. Our data does indicate nearly exclusive and repeated 
use of Ledyard Bay waters between 5 and 25 meters in depth across 
years. As such, these waters remain part of our final designation. We 
note that the observation by local Natives that

[[Page 9164]]

spectacled eiders use waters 15-75 nm from shore is largely supported 
by the scientific data available to us. However, all of the Ledyard Bay 
critical habitat unit (Unit 4) is within 75 nm of shore.
    We do not believe that our best scientific information warrants 
restricting the borders we have drawn around this species' wintering 
area. It is true that during most winters, the birds make use of a 
relatively small portion of this area. However, during periods of 
extreme weather, they may be precluded from using this favored area by 
heavy ice conditions, such as occurred during March 1995. During such 
times, other portions of the wintering area that are seldom used may 
become critically important to the survival of the species. We believe 
that the borders we have drawn, coupled with our description of the 
primary constituent elements for that location, are the best 
representation of the area that is essential to the conservation of the 
species, and for which we have the authority to designate critical 
habitat. Should additional survey data generated over a spectrum of 
winters of varying severity indicate that the borders of the critical 
habitat warrant amending, we will consider such information and take 
appropriate action.
    Comment 7: A few respondents stated that there was insufficient 
data to describe primary constituent elements.
    Our response: We disagree. In accordance with the regulations, 
primary constituent elements may include, but are not limited to, the 
following: Roost sites, nesting grounds, spawning sites, feeding sites, 
seasonal wetland or dryland, water quality or quantity, host species or 
plant pollinator, geologic formation, vegetation type, tide, and 
specific soil types (50 CFR 424.12). In addition, the regulations state 
that we are to make our determinations based upon the best scientific 
data available (50 CFR 424.12). We believe that we have described the 
primary constituent elements of the different habitats used by this 
species using the best scientific data available. Additional data may 
have allowed us to describe primary constituent elements in more 
detail, but the lack of this additional data does not preclude us from 
describing the primary constituent elements using the information that 
we have.
    Comment 8: A few respondents asked whether it is possible that the 
eiders have simply relocated.
    Our response: Sea ducks in general, and spectacled eiders in 
particular, exhibit breeding site fidelity. That is, female waterfowl 
tend to return to the area where they hatched for their first nesting 
effort, and subsequently return to this same area year after year 
(Anderson et al. 1992). Genetics studies indicate that there are 
differences in mitochondrial DNA between females that breed on the Y-K 
Delta, North Slope, and Arctic Russia. This is an indication that there 
is limited exchange of females between breeding areas. Although males 
that lose a mate may subsequently pair with a female from a different 
breeding area, and consequently may breed in different areas, we do not 
believe that female eiders regularly change breeding areas, or that 
there was a mass movement of birds from one breeding area to another. 
There is no evidence to support this type of movement in sea ducks, nor 
reason to believe that it may have happened with spectacled eiders.
    Comment 9: A few respondents stated that our proposed North Slope 
Unit is too big for Spectacled eiders, noting that this species only 
occur 1-2 miles inland.
    Our response: Although we are not designating critical habitat on 
the North Slope at this time, we strongly disagree with the observation 
that this species only occurs within 2 miles of the coast. There are 
hundreds of confirmed sightings of spectacled eiders as far as 60 mi 
from the coast made by professional biologists with years of aerial 
survey experience. Perhaps the commenters may be confusing spectacled 
eiders with the more coastal eider species, the common eider (Somateria 
mollissima).
    Comment 10: Several commenters noted that critical habitat 
designation could hamper recovery by suggesting that threats to the 
bird are located in one place when they are actually located elsewhere.
    Our response: As we have previously stated, we recognize that 
designation of critical habitat may not include all of the habitat 
areas that may eventually be determined to be necessary for the 
recovery of the species. Therefore, all should understand that critical 
habitat designations do not signal that habitat outside the designation 
is unimportant or may not be required for recovery. However, even given 
that limitation, we do not believe that our final critical habitat 
designation will hamper the recovery of the spectacled eider.
    Comment 11: Two respondents stated that 5 percent annual harvest of 
spectacled eiders on the Yukon Kuskokwim Delta during spring has 
minimal impact on the population.
    Our response: Subsistence harvest survey information estimates a 
slightly lower harvest rate from 1993-1999 (3.75 percent), but that 
survey cannot account for the under-reporting of the number of animals 
harvested for which harvest is prohibited. For many species, a 5 
percent annual harvest rate would be inconsequential, but for a long 
lived species with relatively low annual reproductive output, and an 
already depressed population level such as the spectacled eider, such 
harvest can have notable effects on the population. We simulated the Y-
K Delta spectacled eider population using both a deterministic model 
(one that does not account for uncertainty) and a stochastic model (one 
that incorporates effects of chance events) developed for this species, 
with starting conditions that approximate observed reproductive 
parameters and that result in the stable to slightly increasing 
population of eiders, such as that which has been occurring over recent 
years (Paul Flint, BRD, pers. comm. 2000). When we released the modeled 
population from hunting pressure, the deterministic model predicted 
that the population would grow about 20 percent in 10 years. We ran 100 
iterations of the stochastic model and observed that the population 
change for this population, upon release from hunting pressure for 10 
years, ranged from a 13 percent decline to a 50 percent increase 
(average population change was about a 20 percent increase). This 
information suggests that while hunting may not currently be driving 
the population further towards extinction, it is hindering, and may be 
preventing, recovery of the species.
    Comment 12: Two respondents thought we should have included the 
area south and east of Teshekpuk Lake in our proposal.
    Our response: We considered including this area in our proposal, 
but aerial survey data indicated that this area is not used by 
spectacled eiders. In eight years of aerial surveys, we have only 
encountered spectacled eiders in this area twice.
    Comment 13: A few respondents note that eiders are tolerant of 
development, implying that designation of critical habitat in these 
areas is therefore unnecessary.
    Our response: We agree that spectacled eiders occur in developed 
areas. Spectacled eiders regularly occur in ponds within developed oil 
fields at Prudhoe Bay. However, we also note that spectacled eiders do 
not occur at high densities near any of the Native villages on the 
North Slope or Y-K Delta. We do not know whether this reflects 
intolerance for development, local extirpation due to hunting, or 
simply that villages are located on lands unsuitable as eider habitat.

[[Page 9165]]

Development may affect species in a number of ways, such as altering 
distribution or decreasing productivity or survival rates. At this 
time, the effects of development on spectacled eiders are unknown.
    Comment 14: One respondent stated that our data were not very 
compelling for including the marine waters off the North Slope and the 
North Y-K Delta unit as critical habitat.
    Our response: Our initial interpretation of satellite transmitter 
data from the Beaufort and Chukchi seas and aerial survey data from the 
Y-K Delta compelled us to include these areas in our proposal. 
Subsequent transmitter data from the summer of 2000 caused us to 
reconsider our inclusion of the coastal waters of the Beaufort and 
Chukchi seas within 40 km of shore. The data did not clearly indicate 
that these waters are essential to the conservation of the species. 
Many individuals use this area for less than a few days, and some of 
them appear to fly across it nearly nonstop on their way to Ledyard 
Bay.
    Upon closer scrutiny of habitat within the northern portion of our 
Y-K Delta unit, we believe that most of the habitat there is unsuitable 
for spectacled eiders. However, we note that there may be one or two 
small pockets of habitat in this unit that are suitable, and that 
appear on maps to be distinctly different from the surrounding area. We 
have not yet conducted ground-based surveys in these areas. If future 
data indicates that these areas are suitable habitat for spectacled 
eiders, and are essential for the conservation of the species and may 
require special management considerations or protection, we will 
consider designating them as critical habitat at a future date.
    Comment 15: One respondent suggested that our aerial surveys may be 
ill-timed to detect spectacled eiders.
    Our response: Ground data from the Prudhoe Bay area indicate that, 
while our eider aerial surveys are not always perfectly timed to detect 
the maximum number of spectacled eiders, in general, they do a good job 
of surveying a very large area during the short window of time in which 
a high proportion of highly-visible males are present on the breeding 
grounds. In some years, our survey timing is nearly perfect; in other 
years, weather delays have impinged on our ability to optimally time 
our survey efforts.
    Comment 16: One respondent pointed out that we should explicitly 
state that Ledyard Bay is essential to the conservation of the species.
    Our response: We have modified our final rule to explicitly state 
that Ledyard Bay is essential to the conservation of the species.
    Comment 17: One respondent stated that our proposals did not 
encompass enough of the species range to ensure recovery, and that 
areas proposed may actually be population sinks.
    Our response: Our proposal encompassed nearly all of the species 
currently occupied range (excluding migratory corridors). We do not 
believe that areas outside of the proposed borders would have 
contributed markedly to the species survival and recovery. Our final 
rule excludes large portions of the proposal. However, this is not 
meant to imply that habitat outside the designation is unimportant or 
may not be required for recovery.
    We have preliminary data on local population sinks (areas where 
mortality exceeds production, but where populations are maintained 
through immigration from other areas) and sources on the Y-K Delta 
only. These areas have been included in the final designation. 
Furthermore, we believe that areas that are currently population sinks 
need not remain population sinks indefinitely. We hope that with 
additional management measures, we can turn many local population sinks 
into population sources.
    Comment 18: One respondent stated that commercial fishing 
operations were not responsible for the decline in eider populations, 
and therefore critical habitat should not restrict commercial fishing. 
The respondent also disagreed with a statement in the proposal that 
suggested trawl fishing may be a potential threat to spectacled eiders 
on the wintering grounds.
    Our response: We made no mention of trawl fisheries in our critical 
habitat proposal nor are we aware of data indicating that commercial 
fisheries are or are not responsible for declines in eider populations. 
We did state that ``* * * activities that may have the potential to 
destroy or adversely modify critical habitat for spectacled eiders 
include, but are not limited to: (1) Commercial fisheries, (2) oil 
exploration and development, and (3) petroleum product transport.'' We 
did not intend to imply that commercial fisheries had caused the 
observed population decline of spectacled eiders, but rather that 
commercial fisheries, as well as the other factors mentioned, may have 
the potential to be a threat to the species or its habitat. We note 
that, with respect to commercial fisheries, possible ways in which 
eiders or their habitat may be affected now or in the future include--
(1) large numbers of small fuel and oil spills, including the practice 
of discharging oily bilge water; (2) fundamental changes in the marine 
ecosystem brought about by harvest or overharvest of fish and 
shellfish; (3) vessel strikes in which eiders collide with fishing 
vessels that are using bright lights during inclement weather; and (4) 
the alteration of the benthic environment by trawling gear. Again, we 
do not mean to imply that the commercial fishing industry is currently 
affecting the species in these ways. We currently lack the information 
we need to determine whether, and to what degree, fisheries are 
affecting spectacled eiders. Further analysis of potential affects of 
the fishing industry on spectacled eiders will be considered in future 
section 7 consultations with the National Marine Fisheries Service 
(NMFS) on the fisheries.
    We note that the commenter stated that, due to ice, it was 
theoretically impossible to conduct trawl fishing operations in the 
spectacled eider wintering area during the time of year that the birds 
are present. We agree with this assessment, but note that eiders are 
present at high densities on their wintering grounds prior to the 
formation of sea ice and also note that bottom trawl fisheries 
conducted in this area at any time of year could potentially adversely 
modify spectacled eider critical habitat; the birds need not be present 
during fishing operations for harm to occur. We acknowledge, however, 
that according to the data provided by the commenter, trawl fisheries 
did not occur within the borders of the spectacled eider wintering area 
critical habitat between 1995-1999. We appreciate receiving this data.

Issue 2. Policy and Regulations

    Comment 19: Many respondents stated that they thought critical 
habitat would create a need for section 7 consultations on projects 
with a federal nexus, and that consultation would be costly, cause 
permitting delays, potentially preclude some development, or cause 
widespread unemployment.
    Our response: The designation of critical habitat for the 
spectacled eider does not impose any additional requirements or 
conditions on property owners or the public beyond those imposed by the 
listing of the eider in 1993 as a threatened species. All landowners, 
public and private, are responsible for making sure their actions do 
not result in the unauthorized taking of a listed species, regardless 
of whether or not the activity occurs within designated critical 
habitat. Take is defined as ``harass, harm, pursue, hunt, shoot, wound, 
capture, collect, or attempt to engage in

[[Page 9166]]

any such conduct.'' Take is further defined by regulation to include 
``significant habitat modification or degradation that actually kills 
or injures wildlife,'' which was upheld by the U.S. Supreme Court in 
Sweet Home Chapter of Communities for a Great Oregon et al. v. Babbitt, 
515 U.S. 687 (1995).
    Furthermore, all Federal agencies are responsible to ensure that 
the actions they fund, permit, or carry out do not result in 
jeopardizing the continued existence of a listed species, regardless of 
critical habitat designation. ``Jeopardize the continued existence of'' 
means to engage in an action that reasonably would be expected, 
directly or indirectly, to reduce appreciably the likelihood of both 
the survival and recovery of a listed species in the wild by reducing 
the reproduction, numbers, or distribution of that species (50 CFR 
402.02). Because we designated only areas within the geographic range 
occupied by the spectacled eider, any activity that would result in an 
adverse modification of the eider's critical habitat would virtually 
always also jeopardize the continued existence of the species. Federal 
agencies must consult pursuant to section 7 of the Act on all 
activities that will adversely affect the eider taking place both 
within and outside designated critical habitat.
    The consultation process will change only to the extent that 
Environmental Impact Statements, Environmental Assessments, Biological 
Assessments, and other National Environmental Policy Act documents must 
consider the effect of the project on critical habitat. However, these 
documents already need to consider the effects of the project on 
habitat (in the absence of critical habitat designation). Therefore, we 
anticipate that the additional workload burden created by critical 
habitat will amount to changes in terminology and organization of these 
documents. Any marginal increase in consultation costs will ultimately 
be borne by the lead Federal agency in the consultation process or its 
designated representative.
    We disagree with those commenters who believe that the consultation 
workload that is due to critical habitat is 30 percent, 50 percent, or 
90 percent of the total consultation workload. Since our consultation 
process, regardless of the designation of critical habitat, would 
include an evaluation of the proposed action in terms of the habitat 
effects on the species, we do not anticipate that our portion of the 
section 7 consultation process will take any longer to complete due to 
the presence of critical habitat. Therefore, we do not believe that any 
permitting delays will result from this designation. Similarly, we do 
not believe that critical habitat designation will, by itself, preclude 
development. The Act authorizes us to require only minor changes to 
projects that are likely to adversely affect listed species. Only when 
a project will jeopardize the continued existence of a listed species, 
or will destroy or adversely modify critical habitat can we require 
more than minor changes (called ``reasonable and prudent 
alternatives''). We believe that the threshold for reaching ``adverse 
modification'' is equal to that of ``jeopardy''. Consequently, we 
cannot envision how an action could cause adverse modification of 
occupied eider critical habitat without also jeopardizing the species. 
As a result, any reasonable and prudent alternatives that we may 
require would have come about due to the listing of the species, with 
or without critical habitat. Therefore, we believe that the existence 
of critical habitat alone will not preclude any development.
    Finally, we stand by the determination in our economic analysis 
that critical habitat will not have a notable economic impact. 
Consequently, we do not believe that it will create jobs or cause jobs 
to be lost.
    Comment 20: Many respondents stated that they thought critical 
habitat afforded no additional benefits beyond those already provided 
by listing, and that critical habitat offers no net benefits.
    Our response: It has long been our position that the benefits 
afforded by critical habitat were small relative to the benefits 
provided by listing. As such, we chose to focus scarce resources 
towards the listing of additional species. Our position should not be 
misinterpreted to mean that we believe critical habitat affords no 
additional benefits. To the contrary, we believe critical habitat may 
enhance management on Federal lands, and may help prevent adverse 
impacts on private lands resulting from Federal actions. The courts 
have repeatedly asserted that we have an obligation to designate 
critical habitat under the Act, and any decision not to do so should be 
the exception rather than the rule. We believe that the designation of 
critical habitat serves to educate and inform agencies, organizations, 
and the public that the survival of the species is dependent upon the 
availability of healthy habitats. However, in some circumstances the 
benefits of excluding an area from the critical habitat designation 
will be greater than including the area in the designation. If such an 
exclusion will not result in the extinction of the species, subsection 
4(b)(2) the Act allows us to exclude the area from the critical habitat 
designation. The circumstances on the North Slope currently warrant 
such an exclusion (see Rationale for the Final Designation section).
    Comment 21: Many respondents pointed out that the Act indicates 
that we are not to designate critical habitat throughout a species 
range.
    Our response: Section 3(5)(C) of the Act states that, except in 
those circumstances determined by the Secretary, critical habitat shall 
not include the entire geographical area which can be occupied by an 
endangered or threatened species. We have designated critical habitat 
in less than 50 percent of the spectacled eider's historical range 
within the United States. The Secretary of the Interior has determined 
that the areas designated are essential to conserve this species and 
may require special management considerations or protection.
    Comment 22: Several respondents stated that we need to balance 
protection and development.
    Our response: There are provisions for balancing protection and 
development in sections 6, 7, and 10 of the Act. In addition, we 
provide the opportunity for balancing protection and development in our 
critical habitat designation process by undertaking an economic 
analysis. Our analysis concluded that the economic effects on 
development would be minimal or nonexistent. Therefore, we believe that 
we have balanced and continue to balance protection and development.
    Comment 23: Several commenters expressed concern that designation 
of critical habitat will result in restrictions on development, 
subsistence hunting and fishing, commercial fishing, and 
transportation.
    Our response: We are unaware of any information indicating any new 
State or local laws, restrictions, or procedures will result from 
critical habitat designation. Should any State or local regulation be 
promulgated as a result of this rule, this would be outside our 
authority under the Act. The comment is correct in that projects 
funded, authorized, or carried out by Federal agencies, and that may 
affect critical habitat, must undergo consultation under section 7 of 
the Act on the effects of the action on critical habitat. However, as 
stated elsewhere in this final rule, we do not expect the result of 
those consultations to result in any restrictions that would not be 
required as a result of listing the spectacled eider as a threatened 
species.
    Comment 24: One commenter stated that village residents do not 
believe us

[[Page 9167]]

when we say that designating critical habitat will not noticeably 
affect them.
    Our response: We understand the commenter's reservations; however, 
we continue to maintain that the designation of critical habitat does 
not impose any additional requirements or conditions on the public 
beyond those that are imposed by the listing of the spectacled eider in 
1993 as a threatened species.
    Comment 25: Several respondents pointed out that critical habitat 
is not called for in the recovery plan.
    Our response: The recovery plan for the spectacled eider was 
finalized in 1996. This plan neither endorses the need for, nor states 
that there is no need for, designation of critical habitat for this 
species. There is not a requirement that a recovery plan call for 
critical habitat before we designate critical habitat. The Act mandates 
that critical habitat be designated at the time a species is listed, to 
the maximum extent prudent, which is well before the development and 
finalization of recovery plans.
    Comment 26: Two respondents stated that we should have consulted 
the recovery team in our decision-making process.
    Our response: We did not ask the Recovery Team to make 
recommendations or provide formal comments on the critical habitat 
proposal. That is not the role of the Recovery Team provided for in the 
Act. However, we did consider comments from individual members of the 
Recovery Team as part of the public review and comment process. On 
September 21-22, 2000, in Anchorage, Alaska, we convened a meeting of 
experts in the field of spectacled eider biology. We invited all 
members of the recovery team in addition to other eider experts who are 
not on the team. At this meeting, we sought input from the experts on 
what habitats they believed to be essential to the recovery of the 
species. A transcript of this meeting is part of our administrative 
record, and it was considered in our decision making process, as were 
comments received by mail, fax, phone, e-mail, and in public meetings 
and at our public hearing in Barrow, Alaska.
    Comment 27: One respondent said that designating such a huge area 
as critical habitat may trivialize the concept of critical habitat.
    Our response: The Act requires that we designate critical habitat 
to the maximum extent prudent. For wide-ranging species, this may 
result in large expanses of land and water falling within critical 
habitat borders.
    Comment 28: One respondent compares the listing of the short-tailed 
albatross with that of the spectacled eider, and asked why it is 
prudent to designate critical habitat for the eider, but not for the 
albatross when the criteria for determination are nearly identical.
    Our response: The decline in abundance of short-tailed albatrosses 
was notable in that it was directly attributable to one cause; direct 
persecution of the birds by humans such that the species was driven to 
the brink of extinction (and in fact, for many years, the short-tailed 
albatross was thought to be extinct). When commercial harvest of this 
species discontinued, the species population began to grow at near its 
maximum biological potential. There is nothing about the short-tailed 
albatross' habitat that is preventing it from growing at or near its 
biological maximum capacity for growth. The current population is but a 
very small fraction of the number of birds that the habitat once 
supported. In short, we know what caused this species to decline, and 
its decline was completely unrelated to anything in its habitat. We 
also know that there is no aspect of short-tailed albatross habitat in 
the U.S. that is preventing it from recovering nearly as fast as it is 
capable of doing (65 FR 46643). This is not the case for the spectacled 
eider.
    We do not know why the spectacled eider has declined, but lacking 
evidence of excessive direct take by humans, we believe that we can 
conclude that the decline can be attributed to some factor associated 
with the species habitat. Furthermore, certain aspects of its habitat 
(e.g., lead shot on the breeding grounds, and shifting prey 
distributions), may be slowing or preventing recovery. As such, special 
management protections and considerations may be needed, and the 
designation of critical habitat is appropriate.
    Comment 29: Several commenters stated that we did not consult with 
Alaska Native communities or local/tribal governments regarding our 
critical habitat proposals.
    Our response: Due to the short deadline we were working under, 
which resulted from a settlement agreement, we did not consult with the 
Alaska Native community prior to proposing to designate critical 
habitat. However, we attempted to notify all potentially affected 
communities, local and regional governments regarding the proposed 
designation after it was published in the Federal Register on February 
8, 2000 (65 FR 6114). As noted earlier, we published notices in the 
Federal Register announcing the proposed designation of critical 
habitat, and the availability of the draft economic analysis. We 
extended our public comment period three times at the request of Alaska 
Natives. We sent letters and informational materials pertaining to the 
proposal, draft economic analysis and notices of the extensions of the 
comment period to over 300 individuals, communities, and local and 
regional Native governments potentially affected by the proposed 
critical habitat. We provided a briefing opportunity on the proposal 
for Alaska Native representatives at the beginning of the comment 
period. We contacted specific individuals with traditional ecological 
knowledge of spectacled eiders and solicited their comments on the 
proposal. We discussed our critical habitat proposal at 19 meetings (13 
of which were public meetings and 16 of which had Natives in 
attendance). We held meetings in the Native/rural villages and towns of 
Chevak, Toksook Bay, Bethel, Barrow, Point Lay, Wainwright, Nuiqsut, 
Atqasuk, Sand Point, and Nome. At those meetings that were held during 
the public comment period, meeting attendees were given the opportunity 
to comment on the proposal. We gave equal weight to oral and written 
comments on the proposal, and we incorporated traditional environmental 
knowledge obtained at these meetings into our final decision.
    Comment 30: Two respondents stated that we are not in compliance 
with the National Environmental Policy Act and that an Environmental 
Impact Statement should be completed.
    Our response: We have determined that we do not need to prepare 
Environmental Impact Statements or Environmental Assessments, as 
defined under the authority of the National Environmental Policy Act of 
1979 (NEPA), in connection with regulations adopted pursuant to section 
4(a) of the Act. The Ninth Circuit Court determined that NEPA does not 
apply to our decision to designate critical habitat for an endangered 
or threatened species under the Act because (1) Congress intended that 
the critical habitat procedures of the Act displace the NEPA 
requirements, (2) NEPA does not apply to actions that do not change the 
physical environment, and (3) to apply NEPA to the Act would further 
the purposes of neither statute, Douglas County v. Babbitt, 48 F.3d 
1495, 1507-0 (9th Cir. 1995). Alaska is within the jurisdiction of the 
ninth Circuit Court of Appeals.
    Comment 31: Several commenters said that we should explain in 
detail why the proposed critical habitat is

[[Page 9168]]

essential to the species' survival and recovery. Commenters also stated 
that we should identify more explicitly the criteria used to determine 
what areas are considered essential and what special management or 
protections are needed.
    Our response: We believe that we have addressed these concerns 
throughout the final rule. Please see the ``Critical Habitat'' and 
``rationale for final designation'' sections of this Final Rule. As 
described in the section titled ``Primary Constituent Elements'' we 
identified the habitat features (primary constituent elements) that 
provide for the physiological, behavioral, and ecological requirements 
essential for the conservation of spectacled eiders. Within the 
historical range of the spectacled eider we identified areas which 
provide the primary constituent elements and which met the criteria 
discussed under ``Critical Habitat Designation'' in this rule. Then, 
based in part on information from eider experts, we selected qualifying 
portions of these areas necessary for the conservation of the 
spectacled eider and then determined whether those areas might require 
special management considerations or protection.
    Comment 32: Some commenters stated that ``adverse modification'' 
and ``jeopardy'' are two different standards and thus disagreed with 
our position that critical habitat will impose no addition regulatory 
burden.
    Our response: Section 7 prohibits actions funded, authorized, or 
carried out by Federal agencies from jeopardizing the continued 
existence of a listed species or destroying or adversely modifying the 
listed species' critical habitat. Actions likely to ``jeopardize the 
continued existence'' of a species are those that would appreciably 
reduce the likelihood of both the survival and recovery of a listed 
species. Actions likely to result in the destruction or adverse 
modification of critical habitat are those that would appreciably 
reduce the value of critical habitat for both the survival and recovery 
of the listed species. Common to both definitions is an appreciable 
detrimental effect on both survival and recovery of a listed species. 
Given the similarity of these definitions, actions likely to result in 
the destruction or adverse modification of critical habitat would 
almost always result in jeopardy to the species concerned, particularly 
where, as here, only habitat within the geographic range occupied by 
the spectacled eider is designated as critical habitat. The designation 
of critical habitat for the spectacled eider does not add any new 
requirements to the current regulatory process. Since the adverse 
modification standard for critical habitat and the jeopardy standard 
are, for this species, indistinguishable, the listing of the spectacled 
eider initiated the requirement for consultation. This critical habitat 
designation adds no additional requirements not already in place due to 
the species' listing.
    Comment 33: Some commenters stated that the proposed critical 
habitat designation was inconsistent with the guidelines set forth in 
the Act because it encompassed more habitat than is necessary for the 
conservation of the species.
    Our response: The critical habitat areas identified in the proposed 
rule constituted our best assessment of the areas needed for the 
species' conservation using the best available scientific and 
commercial data that was available to us at the time. During the public 
comment period for the proposed rule we received additional information 
and recommendations from eider experts, individuals with traditional 
environmental knowledge of the species' habitat needs and patterns of 
use, and other individuals and organizations that enabled us to refine 
our assessment of the areas needed to ensure survival and recovery of 
the species. The critical habitat designated in this rule reflects our 
assessment of the areas needed for the conservation of spectacled 
eiders in accordance with the parameters set forth in the Act's 
sections 3(5)(A) and 4(b)(2) and as described in the section of this 
rule titled ``Critical Habitat.'' We will continue to monitor and 
collect new information and may revise the critical habitat designation 
in the future if new information supports a change.
    Comment 34: Several commenters stated that our previous 
determination that designation of critical habitat was ``not prudent'' 
was the appropriate decision for this species. These commenters 
criticized us for agreeing to reevaluate critical habitat for the 
spectacled eider in response to litigation, and stated that additional 
biological information is necessary before critical habitat for 
spectacled eiders can be reevaluated.
    Our response: At the time the initial ``not prudent'' determination 
was made for this species, we believed that designation afforded few, 
if any, benefits to the species beyond those conferred by listing. In 
general, Federal Courts have not agreed with our analysis of the 
benefits of critical habitat and during the last several years have 
overwhelmingly ruled that the Service must in almost all cases 
designate critical habitat for listed species. In March 1999, a lawsuit 
challenging our decision to not designate critical habitat for the 
spectacled eider was filed. In light of recent court rulings, we opted 
to reconsider our earlier prudency decision, as stipulated in the terms 
of a settlement agreement, rather than expend our limited resources on 
protracted litigation.
    We recognize that there may be informational or educational 
benefits associated with critical habitat designation. Furthermore, we 
have gathered a tremendous amount of additional biological information 
on this species since the time of its listing, making our reevaluation 
of critical habitat both necessary and timely. This additional 
information concerning the biology and ecology of this species has 
helped us identify more specifically the types and locations of habitat 
that are essential to its conservation. While there is still much to be 
learned about this species, the information currently available to us 
supports our determination that designation of critical habitat is 
prudent, and that the areas we are designating as critical habitat are 
essential to the conservation of the species and may require special 
management considerations or protections.
    Comment 35: One commenter stated the designation of critical 
habitat should not occur until discussions had been held to ensure that 
the designation is consistent with international management regimes, 
such as those under the auspices of the Migratory Bird Treaty Act and 
the Arctic Council's working group for the Conservation of Arctic Flora 
and Fauna.
    Our response: We agree that collaboration and consistency with 
international efforts to conserve the eider are very important. We have 
a working relationship with eider experts in Russia, and our research 
and management efforts are complimentary to those conducted under other 
conservation programs. We will continue to coordinate with other 
research and conservation entities. The parameters set forth in the Act 
and the settlement agreement preclude deferral of designation of 
critical habitat for this species pending discussions of the type 
suggested by the commenter.
    Comment 36: One respondent pointed out that critical habitat 
designation will result in the need to reinitiate section 7 
consultation on projects on which consultation has previously been 
completed.
    Our response: We agree. Regulations at 50 CFR 402.16 require 
Federal agencies to reinitiate consultation on previously reviewed 
actions when

[[Page 9169]]

critical habitat is designated subsequent to consultation. However, 
this reinitiation need be undertaken only if the action is ongoing. We 
are in the process of contacting Federal agencies to inform them that 
they should review their ongoing actions that have been previously 
consulted upon to determine if the reinitiation of consultation is 
warranted.
    Comment 37: There are no benefits of designating critical habitat.
    Our response: We disagree. We believe that critical habitat 
designation contributes to species conservation by identifying 
important habitat for the species and by describing habitat features 
that are thought to be essential for the species. This can alert public 
and private entities to the area's importance and result in cooperative 
strategies for habitat conservation. In particular, critical habitat 
designation makes it clear to Federal agencies that consultation under 
section 7 of the Act is required for all actions that may affect the 
species or its habitat.
    Comment 38: One commenter asked whether critical habitat 
designation would shorten the permitting process for the oil industry 
or reduce the obligation of the oil industry to seek Native 
concurrence.
    Our response: We believe that designating critical habitat will 
neither simplify nor complicate the Federal permitting process for any 
actions, including oil exploration or development. Because the only 
regulatory affect of critical habitat designation is through section 7 
of the Act, which only affects Federal actions and permitting, it 
should not affect interactions between Alaska Natives and the oil 
industry.

Issue 3: Economic Issues

    Comment 39: Many commenters disagreed with our assessment that the 
designation of critical habitat for the spectacled eider would not lead 
to any new section 7 consultations and our conclusion, as a result, 
that economic impacts of the proposed designation would be minimal.
    Our response: Because the spectacled eider is a federally protected 
species under the Act, Federal agencies are already required to consult 
with us on any actions they authorize, fund, or carry out that may 
affect this species. For Federal actions that may adversely affect 
spectacled eiders, Federal agencies need to enter into a formal section 
7 consultation process with us to avoid violating section 9 of the Act, 
which makes it unlawful for any person to ``take'' a listed species. 
The term ``take'' is defined by the Act (section 3(18)) to mean ``to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct.'' The U.S. 
Supreme Court clarified the definition of harm to include adverse 
modification of habitat (Sweet Home Chapter of Communities for a Great 
Oregon, et al. v. Babbitt, 515 U.S. 687 (1995).
    We are only designating critical habitat that is occupied by the 
eiders, essential to the conservation of the species, and may require 
special management considerations or protections. While this 
designation will require Federal agencies to further consider whether 
the actions they authorize, fund, or carry out within designated 
critical habitat boundaries may affect the habitat, it is unlikely that 
an agency could conclude that an action may affect designated critical 
habitat without simultaneously concluding that the action may also 
affect the eiders given the presence of eiders within designated 
critical habitat.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of both the survival and 
recovery of a listed species. Actions likely to result in the 
destruction or adverse modification of critical habitat are those that 
would appreciably reduce the value of critical habitat for both the 
survival and recovery of the listed species. Common to both definitions 
is an appreciable detrimental effect on both survival and recovery of a 
listed species. Given the similarity of these definitions, actions 
likely to result in the destruction or adverse modification of critical 
habitat would almost always result in jeopardy when the area of the 
proposed action is occupied by spectacled eiders.
    While Federal agencies will be required to consider the effect of 
their actions on critical habitat in determining whether or not to 
consult with us under section 7 of the Act, the designation of critical 
habitat for spectacled eiders will not affect activities undertaken 
within critical habitat boundaries that do not involve a Federal nexus. 
While any person, public or private, is required to ensure that their 
actions do not result in the taking of a federally listed species, only 
Federal agencies are required to consult with us about their action's 
effect on designated critical habitat under section 7 of the Act. 
Persons undertaking activities within critical habitat boundaries that 
do not have a Federal nexus (i.e., Federal funds or permits) and that 
do not result in either the direct or indirect taking of a federally 
protected species are not required to consult with us concerning the 
effect their activities may have on designated critical habitat.
    Comment 40: Many commenters stated that by designating critical 
habitat for spectacled eiders, section 7 consultation costs would 
likely increase due to the extra resources needed to determine whether 
a proposed government action could result in the destruction or adverse 
modification of designated critical habitat.
    Our response: We disagree that the designation of critical habitat 
for spectacled eiders would significantly increase the costs associated 
with conducting a section 7 consultation. First, as previously 
described, we have only proposed to designate occupied habitat as 
critical habitat and as a result the designation would not result in an 
increase in section 7 consultations because any Federal action that may 
affect a species' designated critical habitat, which would trigger a 
section 7 consultation, would also affect the listed species itself due 
to its presence in the area. For those Federal actions that we find may 
likely adversely affect a species or its critical habitat, we already 
consider habitat impacts of the proposed action along with whether or 
not an action is likely to jeopardize a listed species or constitute 
``take'' pursuant to section 9 of the Act during the formal section 7 
consultation process. As a result, the designation of critical habitat 
in the areas already occupied by spectacled eiders will not add any 
appreciable time or effort required by an action agency, third party 
applicant, or by our personnel to conduct a section 7 consultation.
    Comment 41: Some comments stated that the economic analyses failed 
to consider the effect of reinitiating previously conducted 
consultations to consider an action's effect on designated critical 
habitat.
    Our response: Regulations at 50 CFR 402.16 require Federal agencies 
to reinitiate consultation on previously reviewed actions in instances 
where critical habitat is subsequently designated. Because we have 
already considered the habitat impacts of the action during the 
consultation process,

[[Page 9170]]

we do not believe that any significant resources would be expended by 
either the action agency or by our personnel to comply with the 
reinitiation requirement. We anticipate fulfilling the requirements of 
50 CFR 402.16 by sending a letter to an action agency undertaking 
activities on which we have already consulted, and requesting that they 
make a determination as to whether the ongoing action may affect 
designated critical habitat. Because habitat impacts were already 
considered as part of the initial consultation, we believe that most, 
if not all non-jeopardy activities already consulted upon will likely 
not adversely modify or destroy critical habitat. We are committed to 
working with all Federal agencies that may be affected by the 
designation of critical habitat to expedite any consultations that 
require reinitiation.
    Comment 42: The draft economic analysis failed to consider that 
Nationwide permits under section 404 of the Clean Water Act will no 
longer be allowed without a section 7 consultation.
    Our response: The conditions, limitations, and restrictions of the 
Army Corps Nationwide permit program state in 33 CFR 330.4 that no 
activity is authorized by any nationwide permit if that activity is 
likely to jeopardize the continued existence of a threatened or 
endangered species as listed or proposed for listing under the Act or 
to destroy or adversely modify the critical habitat of such species. 
Federal agencies are required to follow their own procedures for 
complying with the Act while non-federal permittees are required to 
notify the District Engineer (DE) if any federally listed (or proposed 
for listing) endangered or threatened species or critical habitat might 
be affected or is in the vicinity of the project. In such cases, the 
prospective permittee may not begin work under authority of the 
nationwide wetland permit until notified by the DE that the 
requirements of the Act have been satisfied and that the activity is 
authorized. If the DE determines that the activity may affect any 
federally listed species or critical habitat, the DE must initiate 
section 7 consultation in accordance with the Act. Because we are only 
designating occupied habitat as critical habitat for spectacled eiders, 
prospective permittees already are required to notify the Army Corps of 
their activities within these areas. As a result, we do not anticipate 
that critical habitat designation for spectacled eiders would result in 
any additional section 7 consultations with the Army Corps concerning 
activities needing a general permit to proceed.
    Comment 43: Some commenters stated that minor permitting delays, 
resulting from an increase in section 7 consultations, can result in a 
year-long delay given the limited operation windows due to climate 
conditions in Alaska. As a result, these commenters believed that 
marginal projects may face funding losses as financing capital is 
withdrawn due to increased uncertainty associated with such a project.
    Our response: We disagree that there will be an increase in section 
7 consultations that will be attributable to critical habitat 
designation for spectacled eiders. Federal agencies are already 
required to consult with us in situations where actions they undertake, 
fund, or permit may adversely affect the eiders. We do not believe that 
the designation of critical habitat will lengthen the section 7 process 
because we already consider habitat impacts as part of the consultation 
process. Because we are only designating critical habitat in areas that 
are occupied by the eiders, we do not believe that there will be an 
increase in section 7 consultations due to the designation.
    Comment 44: Several commenters stated that the draft economic 
analyses failed to adequately address critical habitat effects on the 
North Slope petroleum economy, including the costs associated with 
section 7 consultations and project modifications, which may result in 
project delays and reduced development, associated effects on the 
regional and State economy, and land value impacts in areas where 
production may be curtailed.
    Our response: Our draft economic analyses for the proposed critical 
habitat rule discussed the potential economic impacts to the oil and 
gas industry operating on the North Slope. Specifically, we discussed 
the responsibilities of the Bureau of Land Management and the Minerals 
Management Service in managing oil and gas exploration and production 
drilling in this area and their current responsibility to consult with 
us on activities they authorize, fund, or carry out that may affect 
spectacled eiders. The analyses discussed previous consultations with 
these Federal agencies concerning oil and gas activities and concluded 
that for section 7 consultations for which a ``not likely to adversely 
affect'' determination was made by the agency, and for which we 
concurred, we fully expect to concur with a corresponding determination 
that such an action is not likely to result in the destruction or 
adverse modification of critical habitat. Only for those actions 
resulting in jeopardy to spectacled eiders would we expect to meet the 
threshold for destruction or adverse modification of critical habitat 
during the section 7 process. Similarly, we believed that property 
value decreases, to the extent that they can be attributed to 
spectacled eiders and result in actual restrictions in land use, would 
be a result of the listing of the species as a federally protected 
species and not because of critical habitat designation. Consequently, 
we do not believe that critical habitat designation, as proposed, would 
have an adverse effect on oil and gas industry operations on the North 
Slope nor have any indirect effects on the regional or State economy. 
In this final rule, however, we have withdrawn the North Slope unit 
from critical habitat designation. As a result, the concerns expressed 
in this comment are no longer an issue relevant to the final 
designation.
    We recognize that designation of critical habitat may not include 
all of the habitat areas that may eventually be determined to be 
necessary for the recovery of the species. For these reasons, all 
should understand that critical habitat designations do not signal that 
habitat outside the designation is unimportant or may not be required 
for recovery. Areas outside the critical habitat designation will 
continue to be subject to conservation actions that may be implemented 
under section 7(a)(1) and to the regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the section 9 take prohibition, 
as determined on the basis of the best available information at the 
time of the action. We specifically anticipate that federally funded or 
assisted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available to these planning efforts calls for a 
different outcome.
    Comment 45: One commenter believed that the economic analyses 
failed to adequately address potential benefits associated with 
critical habitat designation.
    Our response: We believe that many of the benefits to the species 
that result from critical habitat will be non-economic in nature. 
Critical habitat designation for spectacled eiders may have some 
educational benefit to Alaskans. Other benefits may result from Federal 
agencies becoming more

[[Page 9171]]

aware of their obligation to consult on their activities as per section 
7 of the Act. However, because we are designating only occupied habitat 
as critical habitat for spectacled eiders, we believe that the economic 
consequences (both positive and negative) associated with the 
designation are limited. We arrive at this conclusion because the 
designation of critical habitat is unlikely to have any significant 
effect on both current and planned economic activities within the 
designated areas. For reasons previously stated, Federal agencies are 
already required to consult with us on activities that may affect 
spectacled eiders.
    Comment 46: The analysis ignores the effect that critical habitat 
designation may have on commercial fisheries, such as those occurring 
in the Bering Sea, along the Alaska Peninsula, and in Cook inlet based 
on judicial rulings on the fisheries impact on critical habitat for the 
Steller sea lions.
    Our response: On July 20, 2000, U.S. District Court Judge Thomas S. 
Zilly issued an injunction on all groundfish trawl fishing within 
federally regulated waters of the Bering Sea/Aleutian Islands and the 
Gulf of Alaska within Steller sea lion critical habitat. The judge 
issued this injunction because he found that the NMFS failed to issue a 
legally adequate biological opinion addressing the combined, overall 
effects of the North Pacific groundfish trawl fisheries on Steller sea 
lions and their critical habitat pursuant to the Act. It is important 
to note that while the judge limited fishing within Steller sea lion 
critical habitat, he issued the injunction primarily out of concern 
that NMFS failed to comply with section 7 of the Act. Consequently, we 
do not believe that critical habitat designation for the Steller sea 
lion played a significant role in the judge's decision to issue the 
injunction but rather was simply used by the judge to determine the 
boundaries of the injunction.
    Our analyses did not address the potential effects of third-party 
lawsuits directly due to the limited information and experience that 
critical habitat designation could have on such a lawsuit. However, we 
recognize that it is possible that some third parties may elect to sue 
us over future decisions we may make about whether an activity 
adversely modifies critical habitat. As of yet, we have not faced any 
such lawsuits and because we are only designating occupied eider 
habitat as critical habitat, we find it highly unlikely that we would 
ever determine that a Federal action could adversely modify critical 
habitat without simultaneously jeopardizing the continued existence of 
spectacled eiders due to the similarity between the two definitions.
    Our economic analyses did address the potential for impacts to 
commercial fisheries resulting from proposed critical habitat 
designation. In these analyses we described how we have conducted semi-
annual formal consultations on fisheries management with NMFS on the 
Bearing Sea fisheries. To date, we are unaware of any spectacled eiders 
having been taken by these fisheries. As a result, we discontinued 
formal consultations on this fishery and began conducting only informal 
consultations. We do not anticipate that the designation of critical 
habitat will change our approach to consultations. As a result, we do 
not expect any adverse economic impacts to occur in the Ledyard Bay, 
Norton Sound, and St. Lawrence/St. Matthew Islands spectacled eider 
critical habitat areas as a result of this final rule. As a result, we 
believe the potential for a third-party lawsuit that could affect the 
commercial fishing industry as a result of critical habitat designation 
is minimal.
    Comment 47: Several commenters stated that the economic analysis is 
flawed because it does not quantify any of the expected impacts that 
may result from critical habitat designation.
    Our response: The draft economic analyses did not identify any 
potential impacts associated with critical habitat designation for 
spectacled eiders. As a result, the analysis was unable to quantify any 
effects. Although the analyses acknowledged the possibility of impacts 
associated with project delays and other activities due to section 7 
consultations (the Act only requires Federal agencies to consult with 
us concerning the effect their actions may have in critical habitat 
areas), we are only designating occupied habitat as critical habitat 
for spectacled eiders. Because Federal agencies are already required to 
consult with us concerning the effect their activities may have on 
spectacled eiders in these areas, we do not believe that the 
designation will result in any additional impacts. While the Act 
requires Federal agencies to consult with us on activities that 
adversely modify critical habitat, we do not believe that within areas 
being designated as critical habitat for spectacled eiders there will 
be any Federal government actions that will adversely modify critical 
habitat without also jeopardizing spectacled eiders due to their 
presence in designated critical habitat areas.
    We have also recognized that in some instances, the designation of 
critical habitat could result in a distorted real estate market because 
participants may incorrectly perceive that land within critical habitat 
designation is subject to additional constraints. However, we do not 
believe that this effect will result from the designation of critical 
habitat for spectacled eiders. We arrived at this determination based 
on the fact that we believe that critical habitat designation for 
spectacled eiders will not add any additional protection, beyond that 
associated with the addition of the species to the list of federally 
protected species. As a result, we believe that any resulting real 
estate market distortion would be temporary and have a relatively 
insignificant effect as it should become readily apparent to market 
participants that critical habitat for spectacled eiders is not 
imposing any additional constraints on landowner activities beyond any 
currently associated with the listing of spectacled eiders.
    Comment 48: Some commenters stated that the analysis does not 
consider the cumulative impact of added uncertainty for projects.
    Our response: While our economic analyses identified some of the 
concerns stakeholders may have regarding our concern over current or 
anticipated activities on eider critical habitat, we do not believe 
that the designation of critical habitat for spectacled eiders will 
impose any additional restrictions or considerations on projects having 
a Federal nexus. While section 7 consultations could lead to project 
delays if they are not properly anticipated for by project planners, we 
do not believe that the designation of critical habitat will result in 
any new or additional section 7 consultations above and beyond those 
that would be required due to an activity's potential to affect 
spectacled eiders. We already consider the impact that an action has on 
the eider's habitat as part of our current section 7 process so we do 
not believe that the section 7 process will take any longer than it 
currently does once critical habitat is designated.
    Comment 49: Some commenters felt that the economic analysis is 
flawed because it is based on the premise that we have proposed 
designating only occupied habitat as critical habitat and that the 
economic analysis was wrong to assume that all future section 7 
consultations within designated critical habitat would occur regardless 
of critical habitat designation due to the presence of spectacled 
eiders.
    Our response: The determination of whether or not designated 
critical habitat is occupied by spectacled eiders is part of a 
biological decision-making

[[Page 9172]]

process and lies beyond the scope of an economic analysis. The Act 
requires all Federal agencies to consult with us on government actions 
that may either directly or indirectly affect a listed species. Even 
without critical habitat designation, Federal agencies would be 
required to consult with us on actions that could adversely modify 
eider habitat because such actions could also affect spectacled eiders 
for reasons previously explained. Consequently, we do not believe that 
the designation of critical habitat for spectacled eiders in occupied 
habitat areas will lead to any economic impacts beyond those currently 
imposed as a result of the listing.
    Comment 50: Some commenters believed that we failed to adequately 
address the requirements of the Small Business Regulatory Enforcement 
Fairness Act in our draft economic analysis.
    Our response: The Regulatory Flexibility Act, as amended by the 
Small Business Regulatory Enforcement Fairness Act, generally requires 
an agency to prepare a regulatory flexibility analysis of any rule 
subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. We are certifying that this 
rule will not have a significant economic impact on a substantial 
number of small entities and as a result we do not need to prepare 
either an initial or final regulatory flexibility analysis.
    We have based our finding on the fact that this rule will not 
result in any significant additional burden to the regulated community, 
regardless of the size of the entity. Our economic analysis identified 
several potential impacts associated with critical habitat designation, 
including increased consultation costs, project modification costs, and 
potential temporary decreases in property values. However, because we 
have only designated property that is within the geographic range 
occupied by spectacled eiders and because spectacled eiders are already 
federally protected species, other Federal agencies are already 
required to consult with us on activities that they authorize, fund, or 
carry out that have the potential to jeopardize spectacled eiders. Any 
associated costs related to these section 7 consultations, including 
project modifications, will therefore be attributable to the listing of 
the species and not to designation of critical habitat due to the 
similarity in the definition of jeopardy and adverse modification. In 
other words, Federal actions that could appreciably reduce the value of 
critical habitat for both the survival and recovery of spectacled 
eiders would also, by default, ``jeopardize the continued existence'' 
of spectacled eiders due to the action's ability to appreciably reduce 
the likelihood of both the survival and recovery of the species due to 
its presence in critical habitat areas.

Issue 4: Other Relevant Issues

    Comment 51: Many respondents were concerned that designating 
critical habitat will invite lawsuits by those aiming to obstruct oil 
development on the North Slope.
    Our response: We cannot predict what future litigation may be 
brought under the Act, nor can we use the threat of litigation as an 
excuse for not designating critical habitat. The Act and regulations at 
50 CFR 424.12 require us to designate critical habitat to the maximum 
extent prudent, and require that we base critical habitat 
determinations on the best scientific and commercial data available and 
that we consider those physical and biological features that are 
essential to the conservation of the species and that may require 
special management considerations and protection.
    Comment 52: A few respondents asked whether it is possible that 
there will be additional time in which to submit comments and whether 
another draft will be presented for public comment before the final 
rule.
    Our response: Our public comment period of 231 days (February 8, 
2000--September 25, 2000) was nearly four times the length of public 
comment period required by regulation. We extended the open comment 
period on three separate occasions to accommodate interested parties. 
We believe that we allowed ample time for comments. Our proposed rule 
published on February 8, 2000, and the draft economic analysis 
represent the only documents for which public comment will be sought 
relative to this rulemaking. However, we welcome at any time new 
information on the life history, distribution, and status of the 
spectacled eider, as well as information on the quality, quantity, and 
viability of the habitats it uses.
    Comment 53: A few respondents asked whether critical habitat could 
be the first step towards making the area a refuge.
    Our response: Critical habitat designation is completely unrelated 
to the formation of wildlife refuges, and in no way affects or is a 
precursor to establishment of a wildlife refuge. Critical habitat can 
be designated on existing parks and refuges, state, and private lands. 
Such designation carries with it no implication of future land 
ownership change, nor does it allow for public access to private land.
    Comment 54: One respondent stated that our proposal resulted from a 
politically motivated decision.
    Our response: Our proposal resulted from an out-of-court settlement 
in which we agreed to reexamine our initial decision that designation 
of critical habitat for this species was not prudent. We objectively 
reexamined the best scientific and commercial data available to us at 
the time, determined that designation of critical habitat was prudent, 
and developed the proposal upon which this final rule is based.
    Comment 55: One respondent stated that designating critical habitat 
ensures collaboration between Federal, State, and Private agencies and 
industries, and that it would foster comprehensive planning and wise 
management.
    Our response: We pursue comprehensive planning and management 
opportunities regardless of the presence of critical habitat. However, 
we note that the heightened awareness surrounding conservation issues 
and the delineation of critical habitat areas on maps has resulted in 
agencies becoming more fully aware of the need to consult with us under 
section 7 of the Act. In addition, we believe that the critical habitat 
maps and description make it easier for all involved to know whether 
any particular activity is located in an area important to threatened 
and endangered species.
    Comment 56: One respondent stated that designating as critical 
habitat the large area proposed on the North Slope would harm listed 
eiders by irreparably damaging cooperative and collaborative working 
relationships between the Service and local and Native governments.
    Our response: We regard working relationships with local and Native 
governments to be essential for effecting the recovery of spectacled 
eiders on the North Slope. We note numerous cooperative conservation 
actions that are in progress, including jointly conducted or funded 
research and monitoring projects, efforts to eliminate the use of lead 
shot by waterfowl hunters, and public education projects. We agree that 
any action that damages these cooperative efforts will harm listed 
eiders. It should be noted that in this final rule, we have withdrawn 
the North Slope unit from critical habitat designation primarily for 
the reason cited by this respondent. Section 4(b)(2)

[[Page 9173]]

of the Act says that we may choose to not designate critical habitat on 
an area if the relevant impacts of such designation outweigh the 
benefits of such a designation. We determined that, on the North Slope, 
this would be the case (see Rationale for the Final Designation 
section).
    Comment 57: One respondent challenged our metric/English 
conversions (40 km = 25 nm) used to describe critical habitat units, 
contending the imprecision in this conversion could cause ambiguity in 
unit boundaries.
    Our response: We believe that our use of significant digits in our 
metric to English conversion factors was commensurate with the accuracy 
of our information regarding the locations of birds on the ground or 
water. There is a discrepancy of approximately 820 feet (250 m) between 
the two distances from shore that we cited (40 km and 25 nm). This 
difference amounts to approximately one half of 1 percent of the width 
of the proposed area. Nevertheless, we recognize that this discrepancy 
has the potential to cause future confusion. The critical habitat units 
to which this comment applies are the coastal waters of the Y-K Delta 
and North Slope. We note that future confusion over the precise 
location of these boundaries has been mooted because these marine areas 
have been eliminated from our final critical habitat designation.
    Comment 58: The risks of not designating or designating too small 
an area appear greater than the risks of designating too large an area.
    Our response: We believe that any risks associated with the 
designation of critical habitat derive from misperceptions surrounding 
critical habitat, and the way in which these misperceptions may affect 
working relationships between parties with conflicting interests or 
goals. Conversely, we do not believe that there are notable risks to 
the listed species that would result from a failure to designate 
critical habitat.
    Comment 59: One respondent asked whether critical habitat remains 
forever or is eliminated if the species is delisted.
    Our response: The critical habitat designation is removed at the 
time the species is delisted.
    Comment 60: The oil industry commented that the original listing of 
eiders and subsequent critical habitat designation may have indirect 
negative effects on eiders by stimulating more intrusive research on 
the North Slope and elsewhere, resulting in increased disturbance 
during nesting.
    Our response: The only effect of critical habitat designation is 
through section 7 of the Act, which requires Federal agencies to 
consult with the Service on actions they permit, fund, or conduct that 
may adversely affect listed species or adversely modify or destroy 
critical habitat. We believe that neither the need to consult or 
outcome of consultations will be affected by critical habitat 
designation because we currently consider the potential habitat impacts 
of proposed projects during consultation. Any research on the North 
Slope or anywhere else in the occupied range of the spectacled eider 
that might result in ``take'' occurring would require a section 
10(a)(1)(A) permit from the Service. If the authorization of such a 
permit may affect a listed species, an intra-agency section 7 
consultation must be initiated. Any such consultation will consider any 
direct, indirect, interrelated, or interdependent effects of the 
action. No permits would be issued if significant adverse impacts were 
anticipated.
    Comment 61: Preventative measures like critical habitat designation 
are cheaper and more productive and efficient than piecemeal 
restoration after environmental damage is done.
    Our response: We view critical habitat as more of an educational 
tool than as a preventive measure. Critical habitat designation adds 
few, if any, regulatory requirements, and it is difficult to envision a 
scenario in which critical habitat may prevent any action from 
occurring that would not already be prevented by virtue of the presence 
of the listed species itself. An exception to this would be if a 
project were to adversely modify or destroy critical habitat that had 
been designated in unoccupied habitat. However, we have not designated 
any unoccupied habitat as critical habitat for the spectacled eider.
Summary of Changes From the Proposed Rule
    Based on a review of public comments received on the proposed 
determination of critical habitat for the spectacled eider, we 
reevaluate our proposed designation of critical habitat for the 
species. This resulted in eight significant changes that are reflected 
in this final rule. These are--(1) the reduction in size of the minimum 
mapping unit from township to section for terrestrial critical habitat; 
(2) the elimination of Proposed Unit 1 (North Y-K Delta Unit); (3) 
exclusion of lands within Proposed Units 3 and 4 (Central and South Y-K 
Delta Units, respectively) that are not within the vegetated intertidal 
zone; (4) the elimination of marine waters associated with Units 1, 3, 
and 4; (5) the elimination of Proposed Unit 5 (North Slope Unit); (6) 
the reduction in size of Proposed Unit 6 (Norton Sound Unit); (7) the 
reduction in size of Proposed Unit 7 (Ledyard Bay Unit); and (8) 
refinement in the definition of primary constituent elements for all 
units. A detailed discussion of the basis for changes from the proposed 
rule can be found under the Rationale for the Final Designation 
section.
    We changed our level of resolution from townships to sections in an 
effort to minimize inclusion of nonessential and unsuitable habitats 
within our critical habitat border. Although doing so resulted in a 
reduction of total area included as critical habitat, we do not believe 
that it resulted in any exclusion of habitat that contained the primary 
constituent elements found in the vegetated intertidal zone.
Economic Analysis
    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    Economic effects caused by listing the spectacled eider as a 
threatened species and by other statutes are the baseline against which 
the effects of critical habitat designation are evaluated. The economic 
analysis must then examine the incremental economic and conservation 
effects and benefits of the critical habitat designation. Economic 
effects are measured as changes in national income, regional jobs, and 
household income. A draft analysis of the economic effects of 
spectacled eider critical habitat designation was prepared (Industrial 
Economics, Incorporated, 2000) and made available for public review 
(August 24, 2000; 65 FR 51577).
    The final analysis, which reviewed and incorporated public 
comments, concluded that no significant economic impacts are expected 
from critical habitat designation above and beyond that already imposed 
by listing the spectacled eider. The most likely economic effects of 
critical habitat designation are on activities funded, authorized, or 
carried out by a Federal agency. The analysis examined the

[[Page 9174]]

effects of the proposed designation on: (1) Re-initiation of section 7 
consultations, (2) length of time in which section 7 consultations are 
completed, and (3) new consultations required due to critical habitat 
designation. Because areas proposed for critical habitat are within the 
geographic range occupied by the spectacled eider, activities that may 
affect critical habitat may also affect the species, and would thus be 
subject to consultation whether or not critical habitat is designated. 
We believe that any project that would adversely modify or destroy 
critical habitat would also jeopardize the continued existence of the 
species, and that reasonable and prudent alternatives to avoid 
jeopardizing the species would also avoid adverse modification of 
critical habitat. Thus, no regulatory burden or associated significant 
additional costs would accrue because of critical habitat above and 
beyond that resulting from listing. Our economic analysis does 
recognize that there may be costs from delays associated with 
reinitiating completed consultations after the critical habitat 
designation is made final. There may also be economic effects due to 
the reaction of the real estate market to critical habitat designation, 
as real estate values may be lowered due to perceived increase in the 
regulatory burden. We believe this impact will be short-term.
    A copy of the final economic analysis and description of the 
exclusion process with supporting documents are included in our 
administrative record and may be obtained by contacting our office (see 
ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    This document has been reviewed by the Office of Management and 
Budget (OMB), in accordance with Executive Order 12866. OMB makes the 
final determination under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required.
    The spectacled eider was listed as a threatened species in 1993. 
Since it was listed, we have conducted 5 formal section 7 consultations 
on projects or actions that were likely to adversely affect spectacled 
eiders. In addition, since 1998, we issued 17 section 10(a)(1)(A) 
permits for research projects that may have affected or were likely to 
adversely affect spectacled eiders. We have not issued any section 
10(a)(1)(B) incidental take permits for this species or within the 
range of this species.
    The areas designated as critical habitat are currently within the 
geographic range occupied by the spectacled eider. Under the Act, 
critical habitat may not be adversely modified by a Federal agency 
action; it does not impose any restrictions on non-Federal persons 
unless they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency (Table 4). Section 7 requires Federal 
agencies to ensure that they do not jeopardize the continued existence 
of the species. Based upon our experience with the species and its 
needs, we conclude that any Federal action or authorized action that 
could potentially cause adverse modification of designated critical 
habitat would currently be considered as ``jeopardy'' under the Act. 
Accordingly, the designation of areas within the geographic range 
occupied by the spectacled eider does not have any incremental impacts 
on what actions may or may not be conducted by Federal agencies or non-
Federal persons that receive Federal authorization or funding. Non-
Federal persons that do not have a Federal ``sponsorship'' of their 
actions are not restricted by the designation of critical habitat 
although they continue to be bound by the provisions of the Act 
concerning ``take'' of the species.
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the spectacled eider since the species was listed in 1993. The 
prohibition against adverse modification of critical habitat is not 
expected to impose any restrictions in addition to those that currently 
exist because all designated critical habitat is within the geographic 
range occupied by the spectacled eider. Because of the potential for 
impacts on other Federal agency activities, we will continue to review 
this action for any inconsistencies with other Federal agency actions.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species, and as 
discussed above we do not anticipate that the adverse modification 
prohibition (resulting from critical habitat designation) will have any 
significant incremental effects.
    (d) This rule will not raise novel legal or policy issues. This 
final determination follows the requirements for determining critical 
habitat contained in the Endangered Species Act.

                 Table 4.--Impacts of Spectacled Eider Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                                         Additional activities
                                        Activities potentially affected by species      potentially affected by
      Categories of activities                       listing only \1\                      critical habitat
                                                                                            designation \2\
----------------------------------------------------------------------------------------------------------------
Federal activities potentially        Removing, disturbing, or destroying spectacled  None.
 affected \3\.                         eider habitat (as defined in the primary
                                       constituent elements discussion) or
                                       appreciably decreasing habitat value or
                                       quality through indirect effects, whether by
                                       paving, covering, draining, impounding,
                                       hydrologically altering, contaminating, or
                                       otherwise altering through mechanical means
                                       or through ecological disruption (e.g.,
                                       gravel pad construction, travel by motorized
                                       vehicle across unfrozen tundra, fuel
                                       transport and related fueling operations,
                                       introduction of contaminants, use of lead
                                       shot while hunting, commercial fishing,
                                       operation of open landfills and other
                                       activities that may enhance predator
                                       populations or concentrate them near eiders,
                                       disturbance of benthic communities through
                                       trawling, offal discharge, and harvest of
                                       benthic organisms).

[[Page 9175]]

 
Private activities potentially        Removing, disturbing, or destroying spectacled  None.
 affected \4\.                         eider habitat (as defined in the primary
                                       constituent elements discussion) or
                                       appreciably decreasing habitat value or
                                       quality through indirect effects, whether by
                                       paving, covering, draining, impounding,
                                       hydrologically altering, contaminating, or
                                       otherwise altering through mechanical means
                                       or through ecological disruption (e.g.,
                                       gravel pad construction, travel by motorized
                                       vehicle across unfrozen tundra, fuel
                                       transport and related fueling operations,
                                       introduction of contaminants, use of lead
                                       shot while hunting, commercial fishing, and
                                       activities that may enhance predator
                                       populations or concentrate them near eider
                                       habitat.
----------------------------------------------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by listing the spectacled eider as a threatened
  species (May 10, 1993, 58 FR 27474) under the Endangered Species Act.
\2\ This column represents the activities potentially affected by the critical habitat designation in addition
  to those activities potentially affected by listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above and in this final determination, this designation of 
critical habitat for the spectacled eider is not expected to result in 
any restrictions in addition to those currently in existence. As 
indicated on Table 1 (see Critical Habitat Designation section) we have 
designated property owned by Federal, State and local governments, and 
private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Regulation of activities affecting waters of the Army Corps 
under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Regulation of commercial fisheries by the National Marine 
Fisheries Service;
    (4) Law enforcement in United States Coastal Waters by the U.S. 
Coast Guard;
    (5) Road construction and maintenance by the Federal Highway 
Administration;
    (6) Regulation of airport improvement activities by the Federal 
Aviation Administration jurisdiction;
    (7) Regulation of subsistence harvest activities on Federal lands 
by the U.S. Fish and Wildlife Service;
    (8) Regulation of mining and oil development activities by the 
Minerals Management Service;
    (9) Regulation of home construction and alteration by the Federal 
Housing Authority;
    (10) Hazard mitigation and post-disaster repairs funded by the 
Federal Emergency Management Agency;
    (11) Construction of communication sites licensed by the Federal 
Communications Commission; and
    (12) Wastewater discharge from communities and oil development 
facilities permitted by the Environmental Protection Agency;
    (13) Other activities funded by the U.S. Environmental Protection 
Agency, Department of Energy, or any other Federal agency.
    Many of these activities sponsored by Federal agencies within 
critical habitat areas are carried out by small entities (as defined by 
the Regulatory Flexibility Act) through contract, grant, permit, or 
other Federal authorization. These actions are currently required to 
comply with the listing protections of the Act, and the designation of 
critical habitat is not anticipated to have any additional effects on 
these activities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this final 
determination will have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 
804(2))

    In the economic analysis, we determined whether designation of 
critical habitat would cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions in the economic analysis, or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will only be affected to the extent that any Federal funds, 
permits or other authorized activities must ensure that their actions 
will not adversely affect the critical habitat. However, as discussed 
in section 1, these actions are currently subject to equivalent 
restrictions through the listing protections of the species, and no 
further restrictions are anticipated.
    (b) This rule will not produce a Federal mandate of $100 million or 
greater in any year, that is, it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of

[[Page 9176]]

critical habitat affects only Federal agency actions. The rule will not 
increase or decrease the current restrictions on private property 
concerning take of the spectacled eider. Due to current public 
knowledge of the species protection, the prohibition against take of 
the species both within and outside of the designated areas, and the 
fact that critical habitat provides no incremental restrictions, we do 
not anticipate that property values will be affected by the critical 
habitat designation. While real estate market values may temporarily 
decline following designation, due to the perception that critical 
habitat designation may impose additional regulatory burdens on land 
use, we expect any such impacts to be short term. Additionally, 
critical habitat designation does not preclude development of HCPs and 
issuance of incidental take permits. Landowners in areas that are 
included in the designated critical habitat will continue to have the 
opportunity to utilize their property in ways consistent with the 
survival of the spectacled eider.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. The designation of critical habitat within the geographic 
range occupied by the spectacled eider imposes no additional 
restrictions to those currently in place, and therefore has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist these local governments 
in long range planning (rather than waiting for case by case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We designate critical habitat in accordance with the 
provisions of the Endangered Species Act. The determination uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of the spectacled eider.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501)

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required.

National Environmental Policy Act

    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Endangered Species Act as 
amended. A notice outlining our reason for this determination was 
published in the Federal Register on October 25, 1983 (48 FR 49244). 
This final determination does not constitute a major Federal action 
significantly affecting the quality of the human environment.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951) and 512 DM 2, we understand that we must 
relate to federally recognized Tribes on a Government-to-Government 
basis. Secretarial Order 3206 American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities and the Endangered Species Act states 
that ``Critical habitat shall not be designated in such areas [an area 
that may impact Tribal trust resources] unless it is determined 
essential to conserve a listed species. In designating critical 
habitat, we shall evaluate and document the extent to which the 
conservation needs of a listed species can be achieved by limiting the 
designation to other lands.'' While this Order does not apply to the 
State of Alaska, we recognize our responsibility to inform affected 
Native Corporations, and regional and local Native governments of this 
proposal. During the open comment period, we coordinated extensively 
with Native communities, sought traditional Native knowledge, extended 
the open comment period on two occasions to accommodate the traditional 
Alaska Native lifestyle, and held 16 meetings with Native 
organizations, in rural Alaska Native communities, or that were 
attended by Alaska Natives.

References Cited

    A complete list of all references cited in this rule is available 
upon request from the Ecological Services Anchorage Field Office (see 
ADDRESSES section).

Author

    The primary authors of this document are Greg Balogh and Terry 
Antrobus (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


    2. In Sec. 17.11 (h) revise the entry for ``spectacled eider'' in 
alphabetical order under ``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 9177]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                  Vertebrate population
-----------------------------------------------------------     Historic range      where endangered or     Status       When      Critical     Special
            Common name                 Scientific name                                  threatened                     listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   *                  *                  *                  *                  *                  *                  *
               BIRDS
Eider, spectacled..................  Somateria              USA (AK); Russia.....  Entire...............          T         503   17.95 (b)          NA
                                      (=Arctonetta,
                                      =Lampronetta,)
                                      fischeri.
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95 (b) by adding critical habitat for the 
spectacled eider (Somateria fischeri) in the same alphabetical order as 
this species occurs in Sec. 17.11 (h) to read as follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds.
* * * * *
SPECTACLED EIDER (Somateria fischeri)
    1. Critical habitat units are depicted for Unit 1 (Central 
Yukon-Kuskokwim Delta), Unit 2 (South Y-K Delta Unit), Unit 3 
(Norton Sound), Unit 4 (Ledyard Bay), and Unit 5 (the Wintering Unit 
in the Bering Sea between St. Lawrence and St. Matthew Islands) for 
reference only. The areas in critical habitat are described below.
    2. Within these areas, the primary constituent elements are 
those habitat components that are essential for the primary 
biological needs of feeding, nesting, brood rearing, roosting, 
molting, migrating and wintering. The primary constituent elements 
for Units 1 and 2 (the Y-K Delta units) include the vegetated 
intertidal zone and all open water inclusions within this zone. 
Primary constituent elements for the Norton Sound Unit (Unit 3) and 
the Ledyard Bay Unit (Unit 4) include all marine waters greater than 
5 m (16.4 ft) in depth and less than or equal to 25 m (82.0 ft) in 
depth, along with associated marine aquatic flora and fauna in the 
water column, and the underlying marine benthic community. Primary 
constituent elements for the Wintering Unit (Unit 5) include all 
marine waters less than or equal to 75 m (246.1 ft) in depth, along 
with associated marine aquatic flora and fauna in the water column, 
and the underlying marine benthic community. Critical habitat does 
not include those areas within the boundary of any unit that do not 
fit the description of primary constituent elements for that unit.
    3. Critical habitat does not include existing features and 
structures, such as buildings, roads, pipelines, utility corridors, 
airports, other paved areas, and other developed areas.
    4. This final rule designating critical habitat for the 
spectacled eider uses published coordinates of prominent landmarks, 
when appropriate, obtained from the Dictionary of Alaska Place 
Names.

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Unit 1. Central Y-K Delta Unit

    Seward Meridian: T19N, R91W, Sections 24, 25, 26, 33, 34, 35, 
36; T19N, R90W, Sections 13, 14, 17, 18, 19-36; T18N, R90W, Sections 
1-24, 26-33; T18N, R91W, Sections 1-5, 7-28, 33-36; T18N, R92W, 
Sections 10-30; T18N, R93W, Sections 21-27; T16N, R91W, Sections 1-
36; T16N, R92W, Sections 1-4, 10-15, 21-36; T16N, R93W, Section 
36;T15N, R89W, Sections 1-36; T15N, R90W, Sections 1-36; T15N, R91W, 
Sections 1-36; T15N, R92W, Sections 1-36; T15N, R93W, Sections 1,2, 
11-14, 23-26, 36; T14N, R89W, Sections 1-36; T14N, R90W, Sections 1-
36; T14N, R91W, Sections 1-29, 32-36; T14N, R92W, Sections 1-18, 24; 
T14N, R93W, Sections 1, 12; T13N, R87W, Sections 1-36; T13N, R88W, 
Sections 1-36; T13N, R89W, Sections 1-36; T13N, R90W, Sections 1-36; 
T13N, R91W, Sections 1-5, 8-17, 20-29, 32-36; T12N, R87W, Sections 
1-36; T12N, R88W, Sections 1-29, 31-36; T12N, R89W, Sections 1-35; 
T12N, R90W, Sections 1-4, 9-14, 23-25; T12N, R91W, Sections 1-36; 
T12N, R92W, Sections 1-4, 9-16, 21-28, 34-36; T11N, R87W, Sections 
1-36; T11N, R88W, Sections 1-36, T11N, R89W, Sections 1-6, 9-12, 25-
36; T11N, R91W, Sections 1-6; T10N, R88W, Sections 1-26, 29-33, 35, 
36; T10N, R89W, Sections 1-35; T10N, R90W, Sections 1, 2, 11-14, 24, 
25; T9N, R87W, Sections 1-35; T9N, R88W, Sections 1, 4-10, 13-36; 
T9N, R89W, Sections 13, 14, 23-26, 35, 36; T8N, R89W, Sections 1-5, 
7-24, 26-34; T8N, R90W, Sections 1-2, 11, 13, 14, 23-26, 36;

Unit 2. South Y-K Delta Unit

    Seward Meridian: T4N, R90W, Sections 30-32; T4N, R91W, Sections 
1-3, 8-17, 20-28, 34-36; T3N, R89W, Section 19; T3N, R90W, Sections 
4-11, 13-28, 34-36; T3N, R91W, Sections 1-3, 11-13; T2N, R88W, 
Sections 4-9, 16-22, 26-30, 32-36; T2N, R89W, Sections 1-6, 12, 13, 
24; T1N, R88W, Sections 1-4, 11-14, 24-25.
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Unit 3. Norton Sound Unit

    The area bound by the following description: From Cape Darby 
(64 deg.19'00" N x 162 deg.47'00" W) south along the line of 
longitude 162 deg.47'00" W to the opposite shore of Norton Sound 
(63 deg.12'51" N x 162 deg.47'00" W), thence along the mean low tide 
line of the Alaska coast north and east to Point Dexter 
(64 deg.32'00" N x 161 deg.23'00" W), thence along the great circle 
route to the southern bank of the mouth of Quiktalik Creek 
(64 deg.36'00" N x 162 deg.18'00" W), and from that point along the 
mean low tide line of the Alaska coast south and west to Cape Darby 
(64 deg.19'00" N x 162 deg.47'00" W). The lands of Stuart Island are 
excluded from Unit 3.

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Unit 4. Ledyard Bay Unit

    The area bound by the following description: from the point 1 nm 
true north of Cape Lisburne (68 deg.54'00" N x 166 deg.13'00" W), 
remaining 1.0 nm offshore of the mean low tide line (maintaining a 
1.0 nm buffer from the mean low tide line) of the Alaska coast north 
and east to 70 deg.20'00" N x 161 deg.56'11" W (1 nm offshore of Icy 
Cape); thence west along the line of latitude 70 deg.20'00" N to the 
point 70 deg.20'00" N x 164 deg.00'00" W; thence along a great 
circle route to 69 deg.12'00" N x 166 deg.13'00" W; thence due south 
to the point of origin1 nm true north of Cape Lisburne 
(68 deg.54'00" N x 166 deg.13'00" W).

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Unit 5. Wintering Area Unit

    The area bound by the following description: from 61 deg.00'00" 
N x 174 deg.30'00" W east along that latitude to 61 deg.00'00" N x 
169 deg.00'00" W, north along 169 deg.00'00" W longitude to the 
south shore of St. Lawrence Island (at 63 deg.10'18" N x 
169 deg.00'00" W; thence west and north along the mean low tide line 
of the south shore of St. Lawrence Island to 63 deg.30'00" N x 
171 deg.50'13" W, west to the U.S.-Russia border at 63 deg.30'00" N 
x 173 deg.22'45" N, southwest along the U.S.-Russia Border to 
62 deg.58'10" N x 174 deg.30'00" W, south along 174 deg.30'00" W to 
61 deg.00'00" N x 174 deg.30'00" W.
* * * * *

    Dated: January 10, 2001.
Kenneth L. Smith,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-1342 Filed 2-5-01; 8:45 am]
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