[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Rules and Regulations]
[Pages 76740-76768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-31068]



[[Page 76739]]

Vol. 77

Friday,

No. 249

December 28, 2012

Part IV





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 223





Endangered and Threatened Species; Threatened Status for the Beringia 
and Okhotsk Distinct Population Segments of the Erignathus barbatus 
nauticus Subspecies of the Bearded Seal; Final Rule

  Federal Register / Vol. 77 , No. 249 / Friday, December 28, 2012 / 
Rules and Regulations  

[[Page 76740]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 101126591-2477-03]
RIN 0648-XZ58


Endangered and Threatened Species; Threatened Status for the 
Beringia and Okhotsk Distinct Population Segments of the Erignathus 
barbatus nauticus Subspecies of the Bearded Seal

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final determination to list the Beringia and 
Okhotsk distinct populations segments (DPSs) of the Erignathus barbatus 
nauticus subspecies of the bearded seal (Erignathus barbatus) as 
threatened under the Endangered Species Act (ESA). We will propose to 
designate critical habitat for the Beringia DPS in a future rulemaking. 
To assist us with this effort, we solicit information that may be 
relevant to the designation of critical habitat for the Beringia DPS. 
In light of public comments and upon further review, we are withdrawing 
the proposed ESA section 4(d) protective regulations for the Beringia 
and Okhotsk DPSs because we have determined that such regulations are 
not necessary or advisable for the conservation of the Beringia and 
Okhotsk DPSs at this time. Given their current population sizes, the 
long-term nature of the primary threat to these DPSs (habitat 
alteration stemming from climate change), and the existing protections 
under the Marine Mammal Protection Act, it is unlikely that the 
proposed protective regulations would provide appreciable conservation 
benefits.

DATES: This final rule is effective on February 26, 2013. Replies to 
the request for information regarding designation of critical habitat 
for the Beringia DPS must be received by February 26, 2013.

ADDRESSES: You may submit comments and information related to the 
identification of critical habitat for the Beringia DPS of bearded 
seals to Jon Kurland, Assistant Regional Administrator for Protected 
Resources, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit 
this information, identified by FDMS Docket Number NOAA-NMFS-2010-0259, 
by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov. 
To submit comments via the e-Rulemaking Portal, first click the 
``submit a comment'' icon, then enter NOAA-NMFS-2010-0259 in the 
keyword search. Locate the document you wish to comment on from the 
resulting list and click on the ``Submit a Comment'' icon on the right 
of that line.
     Mail: Submit written comments to P.O. Box 21668, Juneau, 
AK 99802.
     Fax: (907) 586-7557.
     Hand delivery to the Federal Building: 709 West 9th 
Street, Room 420A, Juneau, AK.
    Comments must be submitted by one of the above methods to ensure 
that the comments are received, documented, and considered by NMFS. 
Comments sent by any other method, to any other address or individual, 
or received after the end of the comment period, may not be considered.
    All comments received are a part of the public record and will 
generally be posted for public viewing on www.regulations.gov without 
change. All personal identifying information (e.g., name, address, 
etc.) submitted voluntarily by the sender may be publicly accessible. 
Do not submit confidential business information, or otherwise sensitive 
or protected information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word or Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Tamara Olson, NMFS Alaska Region, 
(907) 271-5006; Jon Kurland, NMFS Alaska Region, (907) 586-7638; or 
Marta Nammack, NMFS Office of Protected Resources, (301) 427-8469.

SUPPLEMENTARY INFORMATION: On March 28, 2008, we initiated status 
reviews of bearded, ringed (Phoca hispida), and spotted seals (Phoca 
largha) under the ESA (73 FR 16617). On May 28, 2008, we received a 
petition from the Center for Biological Diversity to list these three 
species of seals as threatened or endangered under the ESA, primarily 
due to concerns about threats to their habitat from climate warming and 
loss of sea ice. The petitioner also requested that critical habitat be 
designated for these species concurrently with listing under the ESA. 
In response to the petition, we published a 90-day finding that the 
petition presented substantial scientific or commercial information 
indicating that the petitioned action may be warranted (73 FR 51615; 
September 4, 2008). Accordingly, we prepared status reviews of ringed, 
bearded, and spotted seals and solicited information pertaining to 
them.
    On September 8, 2009, the Center for Biological Diversity filed a 
lawsuit in the U.S. District Court for the District of Columbia 
alleging that we failed to make the requisite 12-month finding on its 
petition to list the three seal species. Subsequently, the Court 
entered a consent decree under which we agreed to finalize the status 
review of the bearded seal (and the ringed seal) and submit a 12-month 
finding to the Office of the Federal Register by December 3, 2010. 
Following completion of a status review report and 12-month finding for 
spotted seals in October 2009 (74 FR 53683; October 20, 2009; see also 
75 FR 65239; October 22, 2010), we established Biological Review Teams 
(BRTs) to prepare status review reports for bearded and ringed seals.
    The status review report for the bearded seal (Cameron et al., 
2010) is a compilation of the best scientific and commercial data 
available concerning the status of the species, including 
identification and assessment of the past, present, and future threats 
to the species. The BRT that prepared this report was composed of eight 
marine mammal biologists, a fishery biologist, a marine chemist, and a 
climate scientist from NMFS' Alaska and Northeast Fisheries Science 
Centers, NOAA's Pacific Marine Environmental Lab, and the U.S. Fish and 
Wildlife Service (FWS). The status review report underwent independent 
peer review by five scientists with expertise in bearded seal biology, 
Arctic sea ice, climate change, and ocean acidification.
    Based on the best scientific and commercial data available on the 
bearded seals' taxonomy, the BRT concluded that there are two currently 
recognized subspecies of the bearded seal that qualify as ``species'' 
under the ESA: Erignathus barbatus nauticus, inhabiting the Pacific 
sector, and Erignathus barbatus barbatus, inhabiting the Atlantic 
sector. Based on evidence for discreteness and ecological uniqueness of 
bearded seals in the Sea of Okhotsk, we determined that the E. b. 
nauticus subspecies consists of two distinct populations segments--the 
Okhotsk DPS and the Beringia DPS.
    On December 10, 2010, we published in the Federal Register a 12-
month finding and proposed to list the Beringia and Okhotsk DPSs of the 
E. b. nauticus subspecies of the bearded seal as threatened (75 FR 
77496). We published a 12-month finding for ringed seals as a

[[Page 76741]]

separate notification concurrently with this finding (75 FR 77476; 
December 10, 2010), and proposed to list four subspecies of ringed 
seals as threatened.
    On December 13, 2011, we published in the Federal Register a 
document announcing a 6-month extension of the deadline for a final 
listing determination to address a substantial disagreement relating to 
the sufficiency or accuracy of the model projections and analysis of 
future sea ice for the Beringia DPS (76 FR 77465). At that time we also 
announced that to address the disagreement and better inform our final 
determination, we would conduct a special independent peer review of 
the sections of the status review report over which there was 
substantial disagreement. We subsequently conducted this special peer 
review and made available for public comment the resulting peer review 
report that consolidated the comments received (77 FR 20774; April 6, 
2012).

ESA Statutory, Regulatory, and Policy Provisions

    Two key tasks are associated with conducting an ESA status review. 
The first is to identify the taxonomic group under consideration; and 
the second is to conduct an extinction risk assessment to determine 
whether the petitioned species is threatened or endangered. To be 
considered for listing under the ESA, a group of organisms must 
constitute a ``species,'' which section 3(16) of the ESA defines to 
include ``any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' The term ``distinct 
population segment'' (DPS) is not commonly used in scientific 
discourse, so the FWS and NMFS developed the ``Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments Under the 
Endangered Species Act'' to provide a consistent interpretation of this 
term for the purposes of listing, delisting, and reclassifying 
vertebrates under the ESA (61 FR 4722; February 7, 1996). Under our DPS 
Policy two elements are considered when evaluating whether a population 
segment qualifies as a DPS under the ESA: (1) The discreteness of the 
population segment in relation to the remainder of the species or 
subspecies to which it belongs; and (2) the significance of the 
population segment to the species or subspecies to which it belongs. As 
stated in the joint DPS policy, Congress expressed its expectation that 
the Services would exercise authority with regard to DPSs sparingly and 
only when the biological evidence indicates such action is warranted.
    In the preamble to the proposed rule and in the status review 
report we evaluated whether E. b. nauticus population segments met the 
DPS policy criteria. We determined that this subspecies consists of two 
DPSs--the Okhotsk DPS and the Beringia DPS. Comments regarding the DPS 
evaluation are addressed below in the Summary of Comments and 
Responses.
    The ESA defines the term ``endangered species'' as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range.'' The term ``threatened species'' is defined as 
``any species which is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range.'' The foreseeability of a species' future status is case 
specific and depends upon both the foreseeability of threats to the 
species and foreseeability of the species' response to those threats. 
When a species is exposed to a variety of threats, each threat may be 
foreseeable over a different time frame. For example, threats stemming 
from well-established, observed trends in a global physical process may 
be foreseeable on a much longer time horizon than a threat stemming 
from a potential, though unpredictable, episodic process such as an 
outbreak of disease that may never have been observed to occur in the 
species.
    The principal threat to bearded seals is habitat alteration 
stemming from climate change. In the 2008 status review for the ribbon 
seal (Boveng et al., 2008; see also 73 FR 79822, December 30, 2008), 
NMFS scientists used the same climate projections used in our risk 
assessment for bearded seals, and analyzed threats associated with 
climate change through 2050. One reason for that approach was the 
difficulty of incorporating the increased divergence and uncertainty in 
climate scenarios beyond that time. Other reasons included the lack of 
data for threats other than those related to climate change beyond 
2050, and the fact that uncertainty embedded in the assessment of the 
ribbon seal's response to threats increased as the analysis extended 
farther into the future.
    Since completing the analysis for ribbon seals, NMFS scientists 
have revised their analytical approach to the foreseeability of threats 
and responses to those threats, adopting a more threat-specific 
approach based on the best scientific and commercial data available for 
each respective threat. For example, because the climate projections in 
the Intergovernmental Panel on Climate Change's (IPCC's) Fourth 
Assessment Report (AR4; IPCC, 2007) extend through the end of the 
century (and we note the IPCC's Fifth Assessment Report (AR5), due in 
2014, will extend even farther into the future), for our analysis for 
bearded seals we used the same models to assess impacts from climate 
change through 2100. We continue to recognize that the farther into the 
future the analysis extends, the greater the inherent uncertainty, and 
we incorporated that limitation into our assessment of the threats and 
the species' response. For other threats, where the best scientific and 
commercial data do not extend as far into the future, such as for 
occurrences and projections of disease or parasitic outbreaks, we 
limited our analysis to the extent of such data. This threat-specific 
approach creates a more robust analysis of the best scientific and 
commercial data available. It is also consistent with the memorandum 
issued by the Department of Interior, Office of the Solicitor, 
regarding the meaning of the term ``foreseeable future'' (Opinion M-
37021; January 16, 2009).
    NMFS and FWS recently published a draft policy to clarify the 
interpretation of the phrase ``significant portion of the range'' in 
the ESA definitions of ``threatened'' and ``endangered'' (76 FR 76987; 
December 9, 2011). The draft policy consists of the following four 
components:
    1. If a species is found to be endangered or threatened in only a 
significant portion of its range, the entire species is listed as 
endangered or threatened, respectively, and the ESA's protections apply 
across the species' entire range.
    2. A portion of the range of a species is ``significant'' if its 
contribution to the viability of the species is so important that, 
without that portion, the species would be in danger of extinction.
    3. The range of a species is considered to be the general 
geographical area within which that species can be found at the time 
FWS or NMFS makes any particular status determination. This range 
includes those areas throughout all or part of the species' life cycle, 
even if they are not used regularly (e.g., seasonal habitats). Lost 
historical range is relevant to the analysis of the status of the 
species, but cannot constitute a significant portion of a species' 
range.
    4. If the species is not endangered or threatened throughout all of 
its range, but it is endangered or threatened within a significant 
portion of its range, and the population in that significant portion is 
a valid DPS, we will list the DPS rather than the entire taxonomic 
species or subspecies.

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    The Services are currently reviewing public comment received on the 
draft policy. While the Services' intent ultimately is to establish a 
legally binding interpretation of the term ``significant portion of the 
range,'' the draft policy does not have legal effect until such time as 
it may be adopted as final policy. However, the discussion and 
conclusions set forth in the draft policy are consistent with NMFS's 
past practice as well as our understanding of the statutory framework 
and language. We have therefore considered the draft policy as non-
binding guidance in evaluating whether to list the Beringia and Okhotsk 
DPSs of the bearded seal under the ESA.

Species Information

    A thorough review of the taxonomy, life history, and ecology of the 
bearded seal is presented in the status review report (Cameron et al., 
2010; available at http://alaskafisheries.noaa.gov/). This information, 
along with an analysis of species delineation and DPSs, was summarized 
in the preamble to the proposed rule (75 FR 77496; December 10, 2010) 
and will not be repeated here.

Summary of Factors Affecting the Bearded Seal

    Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 
424) set forth procedures for listing species. We must determine, 
through the regulatory process, if a species is endangered or 
threatened because of any one or a combination of the following 
factors: (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) overutilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
or (5) other natural or human-made factors affecting its continued 
existence. The preamble to the proposed rule discussed each of these 
factors for the Beringia and Okhotsk DPSs (75 FR 77496; December 10, 
2010). That discussion will not be repeated in its entirety here, but 
we provide a summary for each of the factors below. Section 4.2 of the 
status review report provides a more detailed discussion of the factors 
affecting bearded seals (see ADDRESSES). The data on bearded seal 
abundance and trends of most populations are unavailable or imprecise, 
and there is little basis for quantitatively linking projected 
environmental conditions or other factors to bearded seal survival or 
reproduction. Our risk assessment therefore primarily evaluated 
important habitat features and was based upon the best available 
scientific and commercial data and the expert opinion of the BRT 
members.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    The main concern about the conservation status of bearded seals 
stems from the likelihood that their sea ice habitat has been modified 
by the warming climate and, more so, that the scientific consensus 
projections are for continued and perhaps accelerated warming in the 
foreseeable future. A second concern, related by the common driver of 
carbon dioxide (CO2) emissions, is the modification of 
habitat by ocean acidification, which may alter prey populations and 
other important aspects of the marine ecosystem. A reliable assessment 
of the future conservation status of bearded seals therefore requires a 
focus on observed and projected changes in sea ice, ocean temperature, 
ocean pH (acidity), and associated changes in bearded seal prey 
species.
    The threats associated with impacts of the warming climate on the 
habitat of bearded seals (analyzed in the preamble to the proposed rule 
and in the status review report), to the extent that they may pose 
risks to these seals, are expected to manifest throughout the current 
breeding and molting range (for sea ice related threats) or throughout 
the entire range (for ocean warming and acidification) of the Beringia 
and Okhotsk DPSs.
    While our inferences about future regional ice conditions are based 
upon the best available scientific and commercial data, we recognize 
that there are uncertainties associated with predictions based on 
hemispheric projections or indirect means. We also note that judging 
the timing of onset of potential impacts to bearded seals is 
complicated by the coarse resolution of the IPCC models. Nevertheless, 
NMFS determined that the models reflect reasonable assumptions 
regarding habitat alterations to be faced by bearded seals in the 
foreseeable future.

Potential Impacts of Changes in Sea Ice on Bearded Seals

    In order to feed on the seafloor, bearded seals nearly always 
occupy shallow waters (Fedoseev, 2000; Kovacs, 2002). The preferred 
depth range is often described as less than 200 m (Kosygin, 1971; 
Heptner et al., 1976; Burns and Frost, 1979; Burns, 1981; Fedoseev, 
1984; Nelson et al., 1984; Kingsley et al., 1985; Fedoseev, 2000; 
Kovacs, 2002), though adults have been known to dive to around 300 m 
(Kovacs, 2002; Cameron and Boveng, 2009), and six of seven pups 
instrumented near Svalbard have been recorded at depths greater than 
488 m (Kovacs, 2002). The BRT defined the core distribution of bearded 
seals as those areas of known extent that are in water less than 500 m 
deep.
    An assessment of the risks to bearded seals posed by climate change 
must consider the species' life-history functions, how they are linked 
with sea ice, and how altering that link will affect the vital rates of 
reproduction and survival. The main functions of sea ice relating to 
the species' life-history are: (1) A dry and stable platform for 
whelping and nursing of pups in April and May (Kovacs et al., 1996; 
Atkinson, 1997); (2) a rearing habitat that allows mothers to feed and 
replenish energy reserves lost while nursing; (3) a habitat that allows 
a pup to gain experience diving, swimming, and hunting with its mother, 
and that provides a platform for resting, relatively isolated from most 
terrestrial and marine predators; (4) a habitat for rutting males to 
hold territories and attract post-lactating females; and (5) a platform 
suitable for extended periods of hauling out during molting.
    Whelping and nursing: Pregnant female bearded seals require sea ice 
as a dry birthing platform (Kovacs et al., 1996; Atkinson, 1997). 
Similarly, pups are thought to nurse only while on ice. If suitable ice 
cover is absent from shallow feeding areas during whelping and nursing, 
bearded seals would be forced to seek either sea ice habitat over 
deeper water or coastal regions in the vicinity of haul-out sites on 
shore. A shift to whelping and nursing on land would represent a major 
behavioral change that could compromise the ability of bearded seals, 
particularly pups, to escape predators, as this is a highly developed 
response on ice versus land. Further, predators abound on continental 
shorelines, in contrast with sea ice habitat where predators are 
sparse; and small islands where predators are relatively absent offer 
limited areas for whelping and nursing as compared to the more 
extensive substrate currently provided by suitable sea ice.
    Bearded seal mothers feed throughout the lactation period, 
continuously replenishing fat reserves lost while nursing pups 
(Holsvik, 1998, cited in Krafft et al., 2000). Therefore, the presence 
of a sufficient food resource near the nursing location is also 
important. Rearing young in poorer foraging grounds would require 
mothers to forage for longer periods and/or compromise their own body 
condition, likely impacting the transfer of energy to

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offspring and affecting survival of pups, mothers, or both.
    Pup maturation: When not on the ice, there is a close association 
between mothers and pups, which travel together at the surface and 
during diving (Lydersen et al., 1994; Gjertz et al., 2000; Krafft et 
al., 2000). Pups develop diving, swimming, and foraging skills over the 
nursing period, and perhaps beyond (Watanabe et al., 2009). Learning to 
forage in a sub-optimal habitat could impair a pup's ability to learn 
effective foraging skills, potentially impacting its long-term 
survival. Further, hauling out reduces thermoregulatory demands which, 
in Arctic climates, may be critical for maintaining energy balance. 
Hauling out is especially important for growing pups, which have a 
disproportionately large skin surface and rate of heat loss in the 
water (Harding et al., 2005; Jansen et al., 2010).
    Mating: Male bearded seals are believed to establish territories 
under the sea ice and exhibit complex acoustic and diving displays to 
attract females. Breeding behaviors are exhibited by males up to 
several weeks in advance of females' arrival at locations to give 
birth. Mating takes place soon after females wean their pups. The 
stability of ice cover is believed to have influenced the evolution of 
this mating system.
    Molting: There is a peak in the molt during May-June, when most 
bearded seals (except young of the year) tend to haul out on ice to 
warm their skin. Molting in the water during this period could incur 
energetic costs which might reduce survival rates.
    For any of these life history events, a greater tendency of bearded 
seals to haul out on land or in reduced ice could increase intra- and 
inter-specific competition for resources, the potential for disease 
transmission, and predation, all of which could affect annual survival 
rates. In particular, a reduction in suitable sea ice habitat would 
likely increase the overlap in the local distributions of bearded seals 
and walrus (Odobenus rosmarus), another ice-associated benthic (ocean 
bottom) feeder with similar habitat preferences and diet. The walrus is 
also a predator of bearded seal, though seemingly infrequent. Hauling 
out closer to shore or on land could also increase the risks of 
predation from polar bears, terrestrial carnivores, and humans.
    For a long-lived and abundant animal with a large range, the 
factors identified above (i.e., low ice extent or absence of sea ice 
over shallow feeding areas) are not likely to be significant to an 
entire population in any one year. Rather, the overall strength of the 
impacts is likely a function of the frequency of years in which they 
occur, and the proportion of the population's range over which they 
occur. The low ice years, which are projected to occur more frequently 
than in the past, may reduce recruitment and pup survival if, for 
example, pregnant females are ineffective or slow at adjusting their 
breeding locales for variability of the position of the sea ice front.
    Potential mechanisms for resilience on relatively short time scales 
include adjustments to the timing of breeding in response to shorter 
periods of ice cover, and adjustments of the breeding range in response 
to reduced ice extent. The extent to which bearded seals might adapt to 
more frequent years with early ice melt by shifting the timing of 
reproduction is uncertain. There are many examples of shifts in timing 
of reproduction by pinnipeds and terrestrial mammals in response to 
body condition and food availability. In most of these cases, sub-
optimal conditions led to reproduction later in the season, a response 
that would not likely be beneficial to bearded seals. A shift to an 
earlier melt date may, however, over the longer term provide selection 
pressure for an evolutionary response over many generations toward 
earlier reproduction.
    It is impossible to predict whether bearded seals would be more 
likely to occupy ice habitats over the deep waters of the Arctic Ocean 
basin or terrestrial habitats if sea ice failed to extend over the 
shelf. Outside the critical life history periods related to 
reproduction and molting there is evidence that bearded seals might not 
require the presence of sea ice for hauling out, and instead remain in 
the water for weeks or months at a time. Even during the spring and 
summer bearded seals also appear to possess some plasticity in their 
ability to occupy different habitats at the extremes of their range. 
For example, throughout most of their range, adult bearded seals are 
seldom found on land; however, in the Sea of Okhotsk, bearded seals are 
known to use haul-out sites ashore regularly and predictably during the 
ice free periods in late summer and early autumn. Also, western and 
central Baffin Bay are unique among whelping areas as mothers with 
dependent pups have been observed on pack ice over deep water (greater 
than 500 m). These behaviors are extremely rare in the core 
distributions of bearded seals; therefore, the habitats that 
necessitate them should be considered sub-optimal. Consequently, 
predicted reductions in sea ice extent, particularly when such 
reductions separate ice from shallow water feeding habitats, can be 
reasonably used as a proxy for predicting years of reduced survival and 
recruitment, though not the magnitude of the impact. In addition, the 
frequency of predicted low ice years can serve as a useful tool for 
assessing the cumulative risks posed by climate change.
    Assessing the potential impacts of the predicted changes in sea ice 
cover and the frequency of low ice years on the Beringia and Okhotsk 
DPSs of bearded seals requires knowledge or assumptions about the 
relationships between sea ice and bearded seal vital rates. Because no 
quantitative studies of these relationships have been conducted, we 
relied upon two studies in the Bering Sea that estimated bearded seal 
preference for ice concentrations based on aerial survey observations 
of seal densities. Simpkins et al. (2003) found that bearded seals near 
St. Lawrence Island in March preferred 70-90 percent ice coverage, as 
compared with 0-70 percent and 90-100 percent. Preliminary results from 
another study in the Bering Sea (Ver Hoef et al., In review) found 
substantially lower probability of bearded seal occurrence in areas of 
0-25 percent ice coverage during April-May. Lacking a more direct 
measure of the relationship between bearded seal vital rates and ice 
coverage, we considered areas within the current core distribution of 
bearded seals where the decadal averages and minimums of ice 
projections (centered on the years 2050 and 2090) were below 25 percent 
concentrations as inadequate for whelping and nursing. We also assumed 
that the sea ice requirements for molting in May-June are less 
stringent than those for whelping and rearing pups, and that 15 percent 
ice concentration in June would be minimally sufficient for molting. 
The amount of ice cover required by bearded seals for critical life 
functions has not been documented in the scientific literature, but for 
purposes of this final listing determination, we concluded that the 
above percentages are reasonable assumptions based upon the life 
history characteristics and field observations of bearded seals by NMFS 
marine mammal biologists.
    Beringia DPS: In the Bering Sea, early springtime sea ice habitat 
for bearded seal whelping should be sufficient in most years through 
2050 and out to the second half of the 21st century, when the average 
ice extent in April is forecasted to be approximately 50 percent of the 
present-day extent. The general trend in projections of sea ice for May 
(nursing, rearing, and some molting) through June (molting) in the 
Bering Sea is toward a longer ice-free

[[Page 76744]]

period resulting from more rapid spring melt. Until at least the middle 
of the 21st century, projections show some years with near-maximum ice 
extent; however, less ice is forecasted on average, manifested as more 
frequent years in which the spring retreat occurs earlier and the peak 
ice extent is lower. By the end of the 21st century, projections for 
the Bering Sea indicate that there will commonly be years with little 
or no ice in May, and that sea ice in June is expected to be non-
existent in most years.
    Projections of sea ice concentration indicate that there will 
typically be 25 percent or greater ice concentration in April-May over 
a substantial portion of the shelf zone in the Bering Sea through 2055. 
By 2095 ice concentrations of 25 percent or greater are projected for 
May only in small zones of the Gulf of Anadyr and in the area between 
St. Lawrence Island and Bering Strait. In the minimal ice years the 
projections indicate there will be little or no ice of 25 percent or 
greater concentration over the shelf zone in the Bering Sea during 
April and May, perhaps commencing as early as the next decade. 
Conditions will be particularly poor for the molt in June when typical 
ice predictions suggest less than 15 percent ice by mid-century. 
Projections suggest that the spring and summer ice edge could retreat 
to deep waters of the Arctic Ocean basin, potentially separating sea 
ice suitable for pup maturation and molting from benthic feeding areas.
    In the East Siberian, Chukchi, and Beaufort seas, the average ice 
extents during April and May (i.e., the period of whelping, nursing, 
mating, and some molting) are all predicted to be very close to 
historical averages out to the end of the 21st century. However, the 
annual variability of this extent is forecasted to continue to 
increase, and single model runs indicate the possibility of a few years 
in which April and May sea ice would cover only half (or in the case of 
the Chukchi Sea, none) of the Arctic shelf in these regions by the end 
of the century. The projections indicate that there will typically be 
25 percent or greater ice concentration in April-June over the entire 
shelf zones in the Beaufort, Chukchi, and East Siberian Seas through 
the end of the century. In the minimal ice years 25 percent or greater 
ice concentration is projected over the shelf zones in April and May in 
these regions through the end of the century, except in the eastern 
Chukchi and central Beaufort Seas. In the 2090s, ice suitable for 
molting in June (i.e., 15 percent or more concentration) is projected 
to be mostly absent in these regions in minimal years, except in the 
western Chukchi Sea and northern East Siberian Sea.
    A reduction in spring and summer sea ice concentrations could 
conceivably result in the development of new areas containing suitable 
habitat or enhancement of existing suboptimal habitat. For example, the 
East Siberian Sea has been said to be relatively low in bearded seal 
numbers and has historically had very high ice concentrations and long 
seasonal ice coverage. Ice concentrations projected for May-June near 
the end of the century in this region include substantial areas with 
20-80 percent ice, potentially suitable for bearded seal reproduction, 
molting, and foraging. However, the net difference between sea ice 
related habitat creation and loss is likely to be negative, especially 
because other factors like ocean warming and acidification (discussed 
below) are likely to affect habitat.
    A substantial portion (about 70 percent) of the Beringia DPS 
currently whelps in the Bering Sea, where a longer ice-free period is 
forecasted in May and June. To adapt to this modified sea ice regime, 
bearded seals would likely have to shift their nursing, rearing, and 
molting areas to the ice covered seas north of the Bering Strait, 
potentially with poor access to food, or to coastal haul-out sites on 
shore, potentially with increased risks of disturbance, predation, and 
competition. Both of these scenarios would require bearded seals to 
adapt to novel (i.e., suboptimal) conditions, and to exploit habitats 
to which they may not be well suited, likely compromising their 
reproduction and survival rates. Further, the spring and summer ice 
edge may retreat to deep waters of the Arctic Ocean basin, which could 
separate sea ice suitable for pup maturation and molting from benthic 
feeding areas. Accordingly, we conclude that the projected changes in 
sea ice habitat pose significant threats to the persistence of the 
Beringia DPS throughout all of its range.
    Okhotsk DPS: None of the IPCC models performed satisfactorily at 
projecting sea ice for the Sea of Okhotsk, so projected surface air 
temperatures were examined relative to current climate conditions as a 
proxy to predict sea ice extent and duration. Sea ice extent is 
strongly controlled by temperature; this is especially true for smaller 
bodies of water relative to the grid size of available models. Also, 
the physical processes by which increased greenhouse gases (GHGs) lead 
to warming are better understood and more easily modeled than the other 
processes that influence sea ice formation and persistence. Therefore, 
whether the whole geographic region around the Sea of Okhotsk is above 
or below the freezing point of sea water should be a reasonable 
indicator of the presence or absence of sea ice.
    The Sea of Okhotsk is located southwest of the Bering Sea, and thus 
can be expected to have earlier radiative heating in the spring. The 
region is dominated in winter and spring, however, by cold continental 
air masses and offshore flow. Sea ice is formed rapidly and is 
generally advected southward. As this region is dominated by cold air 
masses for much of the winter and spring, we would expect that the 
present seasonal cycle of first year sea ice will continue to dominate 
the future habitat of the Sea of Okhotsk.
    Based on the temperature proxies, a continuation of sea ice 
formation or presence is expected for March (some whelping and nursing) 
in the Sea of Okhotsk through the end of this century, though the ice 
may be limited to the northern region in most years after mid-century. 
However, little to no sea ice is expected in May by 2050, and in April 
by the end of the century. These months are critical for whelping, 
nursing, pup maturation, breeding, and molting. Hence, the most 
significant threats posed to the Okhotsk DPS were judged to be 
decreases in sea ice habitat suitable for these important life history 
events.
    Over the long term, bearded seals in the Sea of Okhotsk do not have 
the prospect of following a shift in the average position of the ice 
front northward. Therefore, the question of whether a future lack of 
sea ice will cause the Okhotsk DPS of bearded seals to become in danger 
of going extinct depends in part on how successful the populations are 
at moving their reproductive activities from ice to haul-out sites on 
shore. Although some bearded seals in this area use land for hauling 
out, this only occurs in late summer and early autumn. We are not aware 
of any occurrence of bearded seals whelping or nursing young on land, 
so this predicted loss of sea ice is expected to be significantly 
detrimental to the long term viability of the population. We conclude 
that the expected changes in sea ice habitat pose a significant threat 
to the Okhotsk DPS throughout all of its range.

Impacts on Bearded Seals Related to Changes in Ocean Conditions

    Ocean acidification is an ongoing process whereby chemical 
reactions occur that reduce both seawater pH and the concentration of 
carbonate ions when CO2 is absorbed by seawater.

[[Page 76745]]

Results from global ocean CO2 surveys over the past two 
decades have shown that ocean acidification is a predictable 
consequence of rising atmospheric CO2 levels. The process of 
ocean acidification has long been recognized, but the ecological 
implications of such chemical changes have only recently begun to be 
appreciated. The waters of the Arctic and adjacent seas are among the 
most vulnerable to ocean acidification. The most likely impact of ocean 
acidification on bearded seals will be through the loss of benthic 
calcifiers and lower trophic levels on which the species' prey depends. 
Cascading effects are likely both in the marine and freshwater 
environments. Our limited understanding of planktonic and benthic 
calcifiers in the Arctic (e.g., even their baseline geographical 
distributions) means that future changes will be difficult to detect 
and evaluate.
    Warming of the oceans is predicted to drive species ranges toward 
higher latitudes. Additionally, climate change can strongly influence 
fish distribution and abundance. Further shifts in spatial distribution 
and northward range extensions appear to be inevitable, and the species 
composition of the plankton and fish communities will continue to 
change under a warming climate.
    Bearded seals of different age classes are thought to feed at 
different trophic levels, so any ecosystem change could be expected to 
affect bearded seals in a variety of ways. Changes in bearded seal 
prey, anticipated in response to ocean warming and loss of sea ice and, 
potentially, ocean acidification, have the potential for negative 
impacts, but the possibilities are complex. These ecosystem responses 
may have very long lags as they propagate through trophic webs. Because 
of bearded seals' apparent dietary flexibility, these threats are of 
less concern than the direct effects of potential sea ice degradation.

B. Overutilization for Commercial, Subsistence, Recreational, 
Scientific, or Educational Purposes

    Recreational, scientific, and educational utilization of bearded 
seals is currently at low levels and is not expected to increase to 
significant threat levels in the foreseeable future. The solitary 
nature of bearded seals has made them less suitable for commercial 
exploitation than many other seal species. Still, they may have been 
depleted by commercial harvests in some areas of the Sea of Okhotsk and 
the Bering Sea during the mid-20th century. There is currently no 
significant commercial harvest of bearded seals and significant 
harvests seem unlikely in the foreseeable future.
    Bearded seals have been a very important species for subsistence of 
indigenous people in the Arctic for thousands of years. The current 
subsistence harvest is substantial in some areas, but there is little 
or no evidence that subsistence harvests have or are likely to pose 
serious risks to the species at present. Climate change is likely to 
alter patterns of subsistence harvest of marine mammals by changing 
their densities or distributions in relation to hunting communities. 
Predictions of the impacts of climate change on subsistence hunting 
pressure are constrained by the complexity of the interacting variables 
and imprecision of climate and sea models at small scales. Accurate 
information on both harvest levels and species' abundance and trends 
will be needed in order to assess the future impacts of hunting as well 
as to respond appropriately to potential climate-induced changes in 
populations. We conclude that there is no evidence overutilization of 
the Beringia or Okhotsk DPS is occurring at present.

C. Diseases, Parasites, and Predation

    A variety of diseases and parasites have been documented to occur 
in bearded seals. The seals have likely co-evolved with many of these 
and the observed prevalence is typical and similar to other species of 
seals. The transmission of many known diseases of pinnipeds is often 
facilitated by animals crowding together and by the continuous or 
repeated occupation of a site. The pack ice habitat and the more 
solitary behavior of bearded seals may therefore limit disease 
transmission. Other than at shore-based haul-out sites in the Sea of 
Okhotsk in summer and fall, bearded seals do not crowd together and 
rarely share small ice floes with more than a few other seals, so 
conditions that would favor disease transmission do not exist for most 
of the year. After the proposed listing rule was published, the 
occurrence of an elevated number of sick or dead ringed seals in the 
Arctic and Bering Strait regions of Alaska beginning in July 2011 led 
to the declaration of an unusual mortality event (UME) by NMFS under 
the Marine Mammal Protection Act (MMPA) on December 20, 2011. A small 
number of sick or dead bearded seals were also reported. The underlying 
cause of this UME is unknown and remains under focused expert 
investigation. Abiotic and biotic changes to bearded seal habitat 
potentially could lead to exposure to new pathogens or new levels of 
virulence, but we continue to consider the potential threats to bearded 
seals from disease as low.
    Polar bears are the primary predators of bearded seals. Other 
predators include brown bears (Ursus arctos), killer whales (Orcinus 
orca), sharks, and walruses. Predation under the future scenario of 
reduced sea ice is difficult to assess. Polar bear predation may 
decrease, but predation by killer whales, sharks, and walrus may 
increase. The range of plausible scenarios is large, making it 
impossible to predict the direction or magnitude of the net impact on 
bearded seal mortality. The data that are currently available do not 
suggest that predation is posing a significant threat to the 
persistence of bearded seals at present.

D. Inadequacy of Existing Regulatory Mechanisms

    As noted above in the discussion of Factor A, a primary concern 
about the conservation status of the bearded seal stems from the 
likelihood that its sea ice habitat has been modified by the warming 
climate and, more so, that the scientific consensus projections are for 
continued and perhaps accelerated warming in the foreseeable future 
combined with modification of habitat by ocean acidification. Current 
mechanisms do not effectively regulate GHG emissions, which are 
contributing to global climate change and associated modifications to 
bearded seal habitat. The projections we used to assess risks from GHG 
emissions were based on the assumption that no new regulation will take 
place (the underlying IPCC emissions scenarios were all ``non-
mitigated'' scenarios). Therefore, the inadequacy of mechanisms to 
regulate GHG emissions is already included in our risk assessment, and 
contributes to the risks posed to bearded seals by these emissions.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

Pollution and Contaminants
    Research on contaminants and bearded seals is limited compared to 
the extensive information available for ringed seals. Pollutants such 
as organochlorine compounds (OC) and heavy metals have been found in 
most bearded seal populations. The variety, sources, and transport 
mechanisms of the contaminants vary across the bearded seal's range, 
but these compounds appear to be ubiquitous in the Arctic marine food 
chain. Statistical analysis of OCs in marine mammals has shown that, 
for most OCs, the European Arctic is more contaminated than the

[[Page 76746]]

Canadian and U.S. Arctic. Present and future impacts of contaminants on 
bearded seal populations warrant further study. Climate change has the 
potential to increase the transport of pollutants from lower latitudes 
to the Arctic, highlighting the importance of continued monitoring of 
bearded seal contaminant levels. The BRT considered the potential 
threat posed from contaminants as of low to moderate significance to 
the Beringia DPS and of moderate significance to the Okhotsk DPS.

Oil and Gas Activities

    Extensive oil and gas reserves coupled with rising global demand 
make it very likely that oil and gas development activity will increase 
throughout the U.S. Arctic and internationally in the future. Climate 
change is expected to enhance marine access to offshore oil and gas 
reserves by reducing sea ice extent, thickness, and seasonal duration, 
thereby improving ship access to these resources around the margins of 
the Arctic Basin. Oil and gas exploration, development, and production 
activities include, but are not limited to: seismic surveys; 
exploratory, delineation, and production drilling operations; 
construction of artificial islands, causeways, ice roads, shore-based 
facilities, and pipelines; and vessel and aircraft operations. These 
activities have the potential to affect bearded seals, primarily 
through noise, physical disturbance, and pollution, particularly in the 
event of a large oil spill or blowout.
    Within the range of the Beringia and the Okhotsk DPSs, offshore oil 
and gas exploration and production activities are currently underway in 
the United States, Canada, and Russia. In the United States, oil and 
gas activities have been conducted off the coast of Alaska since the 
1970s, with most of the activity occurring in the Beaufort Sea. 
Although five exploratory wells have been previously drilled in the 
Chukchi Sea, no oil fields have been developed or brought into 
production. Shell plans to drill up to three wells during 2012 at 
several locations in the northeast Chukchi Sea. Shell also plans to 
drill offshore in the Beaufort Sea in 2012 near Camden Bay. No offshore 
oil or gas fields are currently in development or production in the 
Bering Sea.
    About 80 percent of the oil and 99 percent of the gas produced in 
the Arctic comes from Russia (AMAP, 2007). With over 75 percent of 
known Arctic oil, over 90 percent of known Arctic gas, and vast 
estimates of undiscovered oil and gas reserves, Russia will likely 
continue to be the dominant producer of Arctic oil and gas in the 
future (AMAP, 2007). Recently there has also been renewed interest in 
the Russian Chukchi Sea, as new evidence emerges to support the notion 
that the region may contain world-class oil and gas reserves. In the 
Sea of Okhotsk, oil and natural gas operations are active off the 
northeastern coast of Sakhalin Island, and future developments are 
planned in the western Kamchatka and Magadan regions.
    Large oil spills or blowouts are considered to be the greatest 
threat of oil and gas exploration activities in the marine environment. 
In contrast to spills on land, large spills at sea are difficult to 
contain and may spread over hundreds or thousands of kilometers. 
Responding to a spill in the Arctic environment would be particularly 
challenging. The U.S. Arctic has very little infrastructure to support 
oil spill response, with few roads and no major port facilities. 
Reaching a spill site and responding effectively would be especially 
difficult, if not impossible, in winter when weather can be severe and 
daylight extremely limited. Oil spills under ice would be the most 
challenging because industry and government have little experience 
containing or recovering spilled oil effectively in such conditions. 
The difficulties experienced in stopping and containing the blowout at 
the Deepwater Horizon well in the Gulf of Mexico, where environmental 
conditions and response preparedness are comparatively good (but waters 
are much deeper than the Arctic continental shelf), point toward even 
greater challenges of attempting a similar feat in a much more 
environmentally severe and geographically remote location.
    Although planning, management, and use of best practices can help 
reduce risks and impacts, the history of oil and gas activities 
indicates that accidents cannot be eliminated. Tanker spills, pipeline 
leaks, and oil blowouts are likely to occur in the future, even under 
the most stringent regulatory and safety systems. In the Sea of 
Okhotsk, an accident at an oil production complex resulted in a large 
(3.5 ton) spill in 1999, and in winter 2009, an unknown quantity of oil 
associated with a tanker fouled 3 km of coastline and hundreds of birds 
in Aniva Bay (Sakhalin Island). In the Arctic, a blowout at an offshore 
platform in the Ekofisk oil field in the North Sea in 1977 released 
more than 200,000 barrels of oil.
    Researchers have suggested that pups of ice-associated seals may be 
particularly vulnerable to fouling of their dense lanugo coat. Though 
bearded seal pups exhibit some prenatal molting, they are generally not 
fully molted at birth, and thus would be particularly prone to physical 
impacts of contacting oil. Adults, juveniles, and weaned young of the 
year rely on blubber for insulation, so effects of oiling on their 
thermoregulation are expected to be minimal. Other acute effects of oil 
exposure which have been shown to reduce seal's health and possibly 
survival include skin irritation, disorientation, lethargy, 
conjunctivitis, corneal ulcers, and liver lesions. Direct ingestion of 
oil, ingestion of contaminated prey, or inhalation of hydrocarbon 
vapors can cause serious health effects including death.
    In summary, the threats to bearded seals from oil and gas 
activities are greatest where these activities converge with breeding 
aggregations or in migration corridors such as in the Bering Strait. In 
particular, bearded seals in ice-covered remote regions are most 
vulnerable to oil and gas activities, primarily due to potential oil 
spill impacts. The BRT considered the threat posed to the Beringia and 
Okhotsk DPSs by disturbance, injury, or mortality from oil spills, and/
or other discharges, as moderately significant.

Commercial Fisheries Interactions and Bycatch

    Commercial fisheries may impact bearded seals through direct 
interactions (i.e., incidental take or bycatch) and indirectly through 
competition for prey resources and other impacts on prey populations. 
NMFS has access to estimates of bearded seal bycatch only for 
commercial fisheries that operate in Alaska waters. Based on data from 
2002-2006, there has been an annual average of 1.0 bearded seal 
mortality incidental to commercial fishing operations. We could find no 
information regarding bearded seal bycatch in the Sea of Okhotsk; 
however, given the intensive levels of commercial fishing that occur in 
this sea, bycatch of bearded seals likely occurs there. The BRT 
considered the threat posed to the Okhotsk DPS from physical 
disturbance associated with the combined factors of oil and gas 
development, shipping, and commercial fisheries moderately significant.
    For indirect impacts, we note that commercial fisheries target a 
number of known bearded seal prey species, such as walleye pollock 
(Theragra chalcogramma) and cod. These fisheries may affect bearded 
seals indirectly through reduction in prey biomass and through other 
fishing mediated changes in their prey species. Bottom trawl

[[Page 76747]]

fisheries also have the potential to indirectly affect bearded seals 
through destruction or modification of benthic prey and/or their 
habitat.

Shipping

    The reduction in Arctic sea ice that has occurred in recent years 
has renewed interest in using the Arctic Ocean as a potential waterway 
for coastal, regional, and trans-Arctic marine operations. Climate 
models predict that the warming trend in the Arctic will accelerate, 
causing the ice to begin melting earlier in the spring and resume 
freezing later in the fall, resulting in an expansion of potential 
shipping routes and lengthening the potential navigation season.
    The most significant risk posed by shipping activities to bearded 
seals in the Arctic is the accidental or illegal discharge of oil or 
other toxic substances carried by ships, due to their immediate and 
potentially long-term effects on individual animals, populations, food 
webs, and the environment. Shipping activities can also affect bearded 
seals directly through noise and physical disturbance (e.g., 
icebreaking vessels), as well as indirectly through ship emissions and 
the possibility of introducing exotic species that may affect bearded 
seal food webs.
    Current and future shipping activities in the Arctic pose varying 
levels of threats to bearded seals depending on the type and intensity 
of the shipping activity and its degree of spatial and temporal overlap 
with bearded seal habitats. These factors are inherently difficult to 
predict, making threat assessment highly uncertain. Most ships in the 
Arctic purposefully avoid areas of ice and thus prefer periods and 
areas which minimize the chance of encountering ice. This necessarily 
mitigates many of the risks of shipping to populations of bearded 
seals, since they are closely associated with ice throughout the year. 
Icebreakers pose special risks to bearded seals because they are 
capable of operating year-round in all but the heaviest ice conditions 
and are often used to escort other types of vessels (e.g., tankers and 
bulk carriers) through ice-covered areas. If icebreaking activities 
increase in the Arctic in the future as expected, the likelihood of 
negative impacts (e.g., oil spills, pollution, noise, disturbance, and 
habitat alteration) occurring in ice-covered areas where bearded seals 
occur will likely also increase.
    The potential threats and general threat assessment in the Sea of 
Okhotsk are largely the same as they are in the Arctic, though with 
less detail available regarding the spatial and temporal correspondence 
of ships and bearded seals, save one notable exception. Though noise 
and oil pollution from vessels are expected to have the same general 
relevance in the Sea of Okhotsk, oil and gas activities near Sakhalin 
Island are currently at high levels and poised for another major 
expansion of the offshore oil fields that would require an increasing 
number of tankers. About 25 percent of the Okhotsk bearded seal 
population uses this area during whelping and molting, and as a 
migration corridor (Fedoseev, 2000).
    The main aggregations of bearded seals in the northern Sea of 
Okhotsk are likely within the commercial shipping routes, but vessel 
frequency and timing relative to periods when seals are hauled out on 
ice are presently unknown. Some ports are kept open year-round by 
icebreakers, largely to support year-round fishing, so there is greater 
probability here of spatial and temporal overlaps with bearded seals 
hauled out on ice. In a year with reduced ice, bearded seals were more 
concentrated close to shore (Fedoseev, 2000), suggesting that seals 
could become increasingly prone to shipping impacts as ice diminishes.
    As is the case with the Arctic, a quantitative assessment of actual 
threats and impacts in the Sea of Okhotsk is unrealistic due to a 
general lack of published information on shipping patterns. 
Modifications to shipping routes and possible choke points (where 
increases in vessel traffic are focused at sensitive places and times 
for bearded seals) due to diminishing ice are likely, but there are few 
data on which to base even qualitative predictions. However, the 
predictions regarding shipping impacts in the Arctic are generally 
applicable, and because of significant increases in predicted shipping, 
it appears that bearded seals inhabiting the Sea of Okhotsk, in 
particular the shelf area off central and northern Sakhalin Island, are 
at increased risk of impacts. Winter shipping activities in the 
southern Sea of Okhotsk are expected to increase considerably as oil 
and gas production pushes the development and use of new classes of 
icebreaking ships, thereby increasing the potential for shipping 
accidents and oil spills in the ice-covered regions of this sea.
    The BRT considered the threat posed from physical disturbance 
associated with the combined factors of oil and gas development, 
shipping, and/or commercial fisheries as of low to moderate 
significance to the Beringia DPS and of moderate significance to the 
Okhotsk DPS.

Summary for Factor E

    We find that the threats posed by pollutants, oil and gas industry 
activities, fisheries, and shipping do not individually or collectively 
place the Beringia DPS or the Okhotsk DPS at risk of becoming 
endangered in the foreseeable future. We recognize, however, that the 
significance of these threats would likely increase for populations 
diminished by the effects of climate change or other threats. This is 
of particular note for bearded seals in the Sea of Okhotsk, where oil 
and gas related activities are expected to increase, and are judged to 
pose a moderate threat.

Analysis of Demographic Risks

    Threats to a species' long-term persistence are manifested 
demographically as risks to its abundance, productivity, spatial 
structure and connectivity, and genetic and ecological diversity. These 
demographic risks provide the most direct indices or proxies of 
extinction risk. A species at very low levels of abundance and with few 
populations will be less tolerant to environmental variation, 
catastrophic events, genetic processes, demographic stochasticity, 
ecological interactions, and other processes. A rate of productivity 
that is unstable or declining over a long period of time can indicate 
poor resiliency to future environmental change. A species that is not 
widely distributed across a variety of well-connected habitats is at 
increased risk of extinction due to environmental perturbations, 
including catastrophic events. A species that has lost locally-adapted 
genetic and ecological diversity may lack the raw resources necessary 
to exploit a wide array of environments and endure short- and long-term 
environmental changes.
    The degree of risk posed by the threats associated with the impacts 
of global climate change on bearded seal habitat is uncertain due to a 
lack of quantitative information linking environmental conditions to 
bearded seal vital rates, and a lack of information about how resilient 
bearded seals will be to these changes. The BRT considered the current 
risks (in terms of abundance, productivity, spatial structure, and 
diversity) to the persistence of the Beringia DPS and the Okhotsk DPS 
as low or very low. The BRT judged the risks to the persistence of the 
Beringia DPS within the foreseeable future to be moderate (abundance 
and diversity) to high (productivity and spatial structure), and to the 
Okhotsk DPS to be high for

[[Page 76748]]

abundance, productivity, and spatial structure, and moderate for 
diversity.

Conservation Efforts

    When considering the listing of a species, section 4(b)(1)(A) of 
the ESA requires NMFS to consider efforts by any State, foreign nation, 
or political subdivision of a State or foreign nation to protect the 
species. Such efforts would include measures by Native American tribes 
and organizations, local governments, and private organizations. Also, 
Federal, tribal, state, and foreign recovery actions (16 U.S.C. 
1533(f)), and Federal consultation requirements (16 U.S.C. 1536) 
constitute conservation measures. In addition to identifying these 
efforts, under the ESA and our Policy on the Evaluation of Conservation 
Efforts (68 FR 15100; March 28, 2003), we must evaluate the certainty 
of implementing the conservation efforts and the certainty that the 
conservation efforts will be effective on the basis of whether the 
effort or plan establishes specific conservation objectives, identifies 
the necessary steps to reduce threats or factors for decline, includes 
quantifiable performance measures for monitoring compliance and 
effectiveness, incorporates the principles of adaptive management, and 
is likely to improve the species' viability at the time of the listing 
determination.

International Agreements

    The International Union for the Conservation of Nature and Natural 
Resources (IUCN) Red List identifies and documents those species 
believed by its reviewers to be most in need of conservation attention 
if global extinction rates are to be reduced, and is widely recognized 
as the most comprehensive, apolitical global approach for evaluating 
the conservation status of plant and animal species. In order to 
produce Red Lists of threatened species worldwide, the IUCN Species 
Survival Commission draws on a network of scientists and partner 
organizations, which uses a standardized assessment process to 
determine species' risks of extinction. However, it should be noted 
that the IUCN Red List assessment criteria differ from the listing 
criteria provided by the ESA. The bearded seal is currently classified 
as a species of ``Least Concern'' on the IUCN Red List. These listings 
highlight the conservation status of listed species and can inform 
conservation planning and prioritization.

Domestic Conservation Efforts

    NMFS is not aware of any formalized conservation efforts for 
bearded seals that have yet to be implemented, or which have recently 
been implemented, but have yet to show their effectiveness in removing 
threats to the species. Therefore, we do not need to evaluate any 
domestic conservation efforts under our Policy on Evaluating 
Conservation Efforts (68 FR 15100; March 28, 2003).
    NMFS has established a co-management agreement with the Ice Seal 
Committee (ISC) to conserve and provide co-management of subsistence 
use of ice seals by Alaska Natives. The ISC is an Alaska Native 
Organization dedicated to conserving seal populations, habitat, and 
hunting in order to help preserve native cultures and traditions. The 
ISC co-manages ice seals with NMFS by monitoring subsistence harvest 
and cooperating on needed research and education programs pertaining to 
ice seals. NMFS' National Marine Mammal Laboratory is engaged in an 
active research program for bearded seals. The new information from 
research will be used to enhance our understanding of the risk factors 
affecting bearded seals, thereby improving our ability to develop 
effective management measures for the species.

Listing Determinations

    We have reviewed the status of the bearded seal, fully considering 
the best scientific and commercial data available, including the status 
review report. We have reviewed threats to the Beringia DPS and the 
Okhotsk DPS, as well as other relevant factors, and considered 
conservation efforts and special designations for bearded seals by 
states and foreign nations. In consideration of all of the threats and 
potential threats to bearded seals identified above, the assessment of 
the risks posed by those threats, the possible cumulative impacts, and 
the uncertainty associated with all of these, we draw the following 
conclusions:
    Beringia DPS: (1) The present population size of the Beringia DPS 
is uncertain, but is estimated to be about 155,000 individuals. (2) It 
is highly likely that reductions will occur in both the extent and 
timing of sea ice in the range of the Beringia DPS within the 
foreseeable future, particularly in the Bering Sea. To adapt to this 
modified ice regime, bearded seals would likely have to shift their 
nursing, rearing, and molting areas to ice-covered seas north of the 
Bering Strait, where projections suggest there is potential for the ice 
edge to retreat to deep waters of the Arctic basin, forcing the seals 
to adapt to suboptimal conditions and exploit potentially unsuitable 
habitats, and likely compromising their reproduction and survival 
rates. (3) Available information indicates a moderate to high threat 
that reductions in spring and summer sea ice will result in spatial 
separation of sea ice resting areas from benthic feeding habitat. (4) 
Available information indicates a moderate to high threat of reductions 
in sea ice suitable for molting (i.e., areas with at least 15 percent 
ice concentration in May-June) and a moderate threat of reductions in 
sea ice suitable for pup maturation (i.e., areas with at least 25 
percent ice concentration in April-May). (5) Within the foreseeable 
future, the risks to the persistence of the Beringia DPS appear to be 
moderate (abundance and diversity) to high (productivity and spatial 
structure). We have determined that the Beringia DPS is not in danger 
of extinction throughout all of its range, but it is likely to become 
so within the foreseeable future. Therefore, we are listing it as 
threatened.
    Okhotsk DPS: (1) The present population size of the Okhotsk DPS is 
very uncertain, but is estimated to be about 95,000 individuals. (2) 
Decreases in sea ice habitat suitable for whelping, nursing, pup 
maturation, and molting pose the greatest threats to the persistence of 
the Okhotsk DPS. As ice conditions deteriorate, Okhotsk bearded seals 
will be limited in their ability to shift their range northward because 
the Sea of Okhotsk is bounded to the north by land. (3) Although some 
bearded seals in the Sea of Okhotsk are known to use land for hauling 
out, this presently only occurs in late-summer and early autumn. We are 
not aware of any occurrence of bearded seals whelping or nursing young 
on land, so the predicted loss of sea ice for these critical life 
history functions is expected to be significantly detrimental to the 
long term viability of the population. (4) Within the foreseeable 
future the risks to the persistence of the Okhotsk DPS due to 
demographic problems associated with abundance, productivity, and 
spatial structure are expected to be high. We have determined that the 
Okhotsk DPS is not in danger of extinction throughout all its range, 
but it is likely to become so in the foreseeable future. Therefore, we 
are listing it as threatened.

Significant Portion of the Range Evaluation

    Under the ESA and our implementing regulations, a species warrants 
listing if it is endangered or threatened throughout all or a 
significant portion of

[[Page 76749]]

its range. In our analysis for this final rule, we initially evaluated 
the status of and threats to the Beringia and Okhotsk DPSs of the 
bearded seal throughout their entire ranges. We found that the 
consequences of habitat change associated with a warming climate can be 
expected to manifest throughout the current breeding and molting ranges 
of bearded seals, and that the ongoing and projected changes in sea ice 
habitat pose significant threats to the persistence of these DPSs. The 
magnitude of the threats posed to the persistence of bearded seals, 
including from changes in sea ice habitat, are likely to vary to some 
degree across the range of the species depending on a number of 
factors, including where affected populations occur. In light of the 
potential differences in the magnitude of the threats to specific areas 
or populations, we evaluated whether the Beringia or Okhotsk DPSs might 
be in danger of extinction in any significant portions of their ranges. 
In accordance with our draft policy on ``significant portion of its 
range,'' our first step in this evaluation was to review the entire 
supporting record for this final determination to ``identify any 
portions of the range[s] of the [DPSs] that warrant further 
consideration'' (76 FR 77002; December 9, 2011). We evaluated whether 
substantial information indicated ``that (i) the portions may be 
significant [within the meaning of the draft policy] and (ii) the 
species [occupying those portions] may be in danger of extinction or 
likely to become so within the foreseeable future'' (76 FR 77002; 
December 9, 2011). Under the draft policy, both considerations must 
apply to warrant listing a species as endangered throughout its range 
based upon threats within a portion of the range. In other words, if 
either consideration does not apply, we would not list a species as 
endangered based solely upon its status within a significant portion of 
its range. For both the Beringia and Okhotsk DPSs, we found it more 
efficient to address the status consideration first.
    The consequences of the potential threats to the Beringia and 
Okhotsk DPSs, including from changes in sea ice habitat, have been 
addressed in other sections of the preamble to this final rule. Based 
on our review of the record, we did not find substantial information 
indicating that any of the threats to the Beringia and Okhotsk DPSs, 
including those associated with the changes in sea ice habitat, are so 
severe or so concentrated as to indicate that either DPS currently 
qualifies as endangered within some portion of its range. As described 
in the section entitled Listing Determinations of this final rule, the 
threats are such that we concluded that Beringia and Okhotsk DPSs are 
likely to become endangered within the foreseeable future. As a result, 
we find that the best available data show that there are no portions of 
their ranges in which the threats are so concentrated or acute as to 
place those portions of the ranges of either DPS in danger of 
extinction. Because we find that the Arctic and Okhotsk DPSs are not 
endangered in any portions of their ranges, we need not address the 
question of whether any portions may be significant.

Prohibitions and Protective Measures

    Section 9 of the ESA prohibits the take of endangered species. The 
term ``take'' means to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or engage in any such conduct (16 U.S.C. 
1532(19)). In the case of threatened species, ESA section 4(d) 
authorizes NMFS to issue regulations it considers necessary and 
advisable for the conservation of the species. Such regulations may 
include any or all of the section 9 prohibitions. These regulations 
apply to all individuals, organizations, and agencies subject to U.S. 
jurisdiction. On December 10, 2010, we proposed protective regulations 
pursuant to section 4(d) to include all of the prohibitions in section 
9(a)(1) (75 FR 77496) based on a preliminary finding that such measures 
were necessary and advisable for the conservation of the Beringia DPS 
and the Okhotsk DPS.
    In light of public comments and following further review, we are 
withdrawing the proposed ESA section 4(d) protective regulations for 
the Beringia and Okhotsk DPSs. We received comments arguing against 
adoption of the 4(d) rule and we have not received any information, and 
are not aware of any, indicating that the addition of the ESA section 9 
prohibitions would apply to any activities that are currently 
unregulated and are having, or have the potential to have, significant 
effects on the Beringia or Okhotsk DPS. Further, the Beringia and 
Okhotsk DPSs appear sufficiently abundant to withstand typical year-to-
year variation and natural episodic perturbations in the near term. The 
principal threat to these DPSs of bearded seals is habitat alteration 
stemming from climate change within the foreseeable future. This is a 
long-term threat and the consequences for bearded seals will manifest 
themselves over the next several decades. Finally, bearded seals 
currently benefit from existing protections under the MMPA, and 
activities that may take listed species and involve a Federal action 
will still be subject to consultation under section 7(a)(2) of the ESA 
to ensure such actions will not jeopardize the continued existence of 
the species. We therefore conclude that it is unlikely that the 
proposed section 4(d) regulations would provide appreciable 
conservation benefits. As a result, we have concluded that the 4(d) 
regulations are not necessary at this time. Such regulations could be 
promulgated at some future time if warranted by new information.
    Section 7(a)(2) of the ESA requires Federal agencies to consult 
with us to ensure that activities they authorize, fund, or conduct are 
not likely to jeopardize the continued existence of a listed species or 
a species proposed for listing, or to adversely modify critical habitat 
or proposed critical habitat. If a Federal action may affect a listed 
species or its critical habitat, the responsible Federal agency must 
enter into consultation with us. Examples of Federal actions that may 
affect the Beringia DPS of bearded seals include permits and 
authorizations relating to coastal development and habitat alteration, 
oil and gas development (including seismic exploration), toxic waste 
and other pollutant discharges, and cooperative agreements for 
subsistence harvest.

Critical Habitat

    Section 3 of the ESA (16 U.S.C. 1532(5)(A)) defines critical 
habitat as: (i) The specific areas within the geographical area 
occupied by the species, at the time it is listed in accordance with 
the ESA, 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 geographical area occupied by the species at the time 
it is listed upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 3 of the ESA 
also defines the terms ``conserve,'' ``conserving,'' and 
``conservation'' to mean ``to use and the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to this chapter are no longer necessary.''
    Section 4(a)(3) of the ESA requires that, to the extent practicable 
and determinable, critical habitat be designated concurrently with the 
listing of a species. Designation of critical

[[Page 76750]]

habitat must be based on the best scientific data available, and must 
take into consideration the economic, national security, and other 
relevant impacts of specifying any particular area as critical habitat. 
Once critical habitat is designated, section 7 of the ESA requires 
Federal agencies to ensure that they do not fund, authorize, or carry 
out any actions that are likely to destroy or adversely modify that 
habitat. This requirement is in addition to the section 7 requirement 
that Federal agencies ensure their actions do not jeopardize the 
continued existence of the species.
    In determining what areas qualify as critical habitat, 50 CFR 
424.12(b) requires that NMFS ``consider those physical or biological 
features that are essential to the conservation of a given species 
including 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, and rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historical geographical 
and ecological distribution of a species.'' The regulations further 
direct NMFS to ``focus on the principal biological or physical 
constituent elements * * * that are essential to the conservation of 
the species,'' and specify that the ``known primary constituent 
elements shall be listed with the critical habitat description.'' The 
regulations identify primary constituent elements (PCEs) as including, 
but not limited to: ``roost sites, nesting grounds, spawning sites, 
feeding sites, seasonal wetland or dryland, water quality or quantity, 
host species or plant pollinator, geological formation, vegetation 
type, tide, and specific soil types.''
    The ESA directs the Secretary of Commerce to consider the economic 
impact, the national security impacts, and any other relevant impacts 
from designating critical habitat, and under section 4(b)(2), the 
Secretary may exclude any area from such designation if the benefits of 
exclusion outweigh those of inclusion, provided that the exclusion will 
not result in the extinction of the species. At this time, we lack the 
data and information necessary to identify and describe PCEs of the 
habitat of the Beringia DPS, as well as the economic consequences of 
designating critical habitat. In the proposed rule, we solicited 
information on the economic attributes within the range of the Beringia 
DPS that could be impacted by critical habitat designation, as well as 
the identification of the PCEs or ``essential features'' of this 
habitat and to what extent those features may require special 
management considerations or protection. However, few substantive 
comments were received in response to this request. We find designation 
of critical habitat for the Beringia DPS to be not determinable at this 
time. We will propose critical habitat for the Beringia DPS of the 
bearded seal in a separate rulemaking. Because the known distribution 
of the Okhotsk DPS of the bearded seal occurs in areas outside the 
jurisdiction of the United States, we will not propose critical habitat 
for the Okhotsk DPS.

Public Comments Solicited

    To ensure that subsequent rulemaking resulting from this final rule 
will be as accurate and effective as possible, we are soliciting 
information from the public, other governmental agencies, Alaska 
Natives, the scientific community, industry, and any other interested 
parties. Specifically, we request comments and information to help us 
identify: (1) The PCEs or ``essential features'' of critical habitat 
for the Beringia DPS of bearded seals, and to what extent those 
features may require special management considerations or protection, 
as well as (2) the economic, national security, and other relevant 
attributes within the range of the Beringia DPS that could be impacted 
by critical habitat designation. Regulations at 50 CFR 424.12(h) 
specify that critical habitat shall not be designated within foreign 
countries or in other areas outside U.S. jurisdiction. Therefore, we 
request information only on potential areas of critical habitat within 
the United States or waters within U.S. jurisdiction. You may submit 
this information by any one of several methods (see ADDRESSES and 
DATES). Comments and information submitted during the initial comment 
period on the December 10, 2010 proposed rule (75 FR 77496) or during 
the comment period on the peer review report (77 FR 20774; April 6, 
2012) should not be resubmitted since they are already part of the 
record.

Summary of Comments and Responses

    With the publication of the proposed listing determination for the 
Beringia and Okhotsk DPSs on December 10, 2010 (75 FR 77496), we 
announced a 60-day public comment period that extended through February 
8, 2011. We extended the comment period an additional 45 days in 
response to public requests (76 FR 6755; February 8, 2011). Also in 
response to public requests, including from the State of Alaska, we 
held three public hearings in Alaska in Anchorage, Barrow, and Nome (76 
FR 9734, February 22, 2011; 76 FR 14883, March 18, 2011).
    During the public comment periods on the proposed rule we received 
a total of 5,298 comment submissions in the form of letters via mail, 
fax, and electronically through the Federal eRulemaking portal. These 
included 5,238 form letter submissions and 60 other unique submissions. 
In addition, at the three public hearings we received testimony from 41 
people and received written submissions from 12 people. Comments were 
received from U.S. State and Federal Agencies including the Marine 
Mammal Commission and the Alaska Department of Fish and Game (ADFG); 
Canada's Department of Fisheries and Oceans (DFO); Native Organizations 
such as the Ice Seal Committee (ISC; Alaska Native co-management 
organization); environmental groups; industry groups; and interested 
individuals.
    In accordance with our July 1, 1994, Interagency Cooperative Policy 
on Peer Review (59 FR 34270), we requested the expert opinion of four 
independent scientists with expertise in seal biology and/or Arctic sea 
ice and climate change regarding the pertinent scientific data and 
assumptions concerning the biological and ecological information use in 
the proposed rule. The purpose of the review was to ensure that the 
best biological and commercial information was used in the decision-
making process, including input of appropriate experts and specialists. 
We received comments from three of these reviewers. There was 
significant disagreement among the peer reviewers regarding magnitude 
and immediacy of the threats posed to the Beringia DPS by the projected 
changes in sea ice habitat.
    The differences of opinion amongst the peer reviewers, as well as 
uncertainty in the best available information regarding the effects of 
climate change, led NMFS to take additional steps to ensure a sound 
basis for our final determination on whether to list the Beringia and 
Okhotsk DPSs under the ESA. To better inform our final listing 
determination and address the disagreement regarding the sufficiency or 
accuracy of the available data relevant to the determination, on 
December 13, 2011, we extended the deadline for the final listing 
decision by 6 months to June 10, 2012 (76 FR 77465). Subsequently, we 
conducted special independent peer review of the sections of the 
bearded seal status review report (Cameron et al., 2010) related to the 
disagreement. For this special peer review, we recruited three 
scientists with marine mammal expertise and specific knowledge of

[[Page 76751]]

bearded seals to review these sections of the status review report and 
provide responses to specific review questions. We received comments 
from two of the marine mammal specialists. We consolidated the comments 
received in a peer review report that was made available for comment 
during a 30-day comment period that opened April 6, 2012 (77 FR 20774). 
During this public comment period on the special peer review we 
received an additional 14 comment submissions via fax and 
electronically through the Federal eRulemaking portal.
    We fully considered all comments received from the public and peer 
reviewers on the proposed rule in developing this final listing of the 
Beringia and Okhotsk DPSs of the bearded seal. Summaries of the 
substantive public and peer review comments that we received concerning 
our proposed listing determination for these DPSs, and our responses to 
all of the significant issues they raise, are provided below. Comments 
of a similar nature were grouped together where appropriate.
    Some peer reviewers provided feedback of an editorial nature that 
noted inadvertent minor errors in the proposed rule and offered non-
substantive but clarifying changes to wording. We have addressed these 
editorial comments in this final rule as appropriate. Because these 
comments did not result in substantive changes to the final rule, we 
have not detailed them here. In addition to the specific comments 
detailed below relating to the proposed listing rule, we also received 
comments expressing general support for or opposition to the proposed 
rule and comments conveying peer-reviewed journal articles, technical 
reports, and references to scientific literature regarding threats to 
the species and its habitat. Unless otherwise noted in our responses 
below, after thorough review, we concluded that the additional 
information received was considered previously or did not alter our 
determinations regarding the status of the Beringia and Okhotsk DPSs. 
We also received comments addressing our final decision regarding E. b. 
barbatus (the Atlantic subspecies of bearded seals). Because we 
previously determined that a status review was not warranted for E. b. 
barbatus (75 FR 77496; December 10, 2010) and this rulemaking concerns 
listing of the Beringia and Okhotsk DPSs, we have not provided specific 
responses to those comments here.

Peer Review Comments

    Comment 1: A peer reviewer expressed the opinion that there is 
compelling evidence of additional discrete populations within the 
Beringia DPS. This reviewer noted that Davis et al. (2008) reported 
significant genetic differentiation between bearded seals in the Bering 
and Beaufort seas, and that Risch et al. (2007) found differences in 
bearded seal vocalizations between the Barrow and the Canadian Beaufort 
regions.
    Response: The reviewer's assertion that there are additional 
discrete populations within the Beringia DPS stemmed in part from a 
misunderstanding about the sampling locations for the Davis et al. 
(2008) study. That study used samples referred to as ``Beaufort Sea'' 
bearded seals, though they were obtained from the Amundsen Gulf, which 
is east of the Beaufort Sea in the Canadian Arctic. Even if one 
considers the Amundsen Gulf to be part of the Beaufort Sea, there were 
no other Beaufort Sea samples, so the vast majority of the Beaufort Sea 
was not represented. In fact, the samples came from the region that is 
thought to be transitional between the two subspecies of bearded seals 
and where the boundary was identified in the proposed rule between the 
Beringia DPS and the E. b. barbatus subspecies.
    The vocalizations studied by Risch et al. (2007) in the Canadian 
Beaufort region also came from the zone of transition between the two 
subspecies. The differences in vocalizations cited by the reviewer, 
between the Barrow region and the Canadian Beaufort region, are 
insufficient evidence on their own for population discreteness. It is 
unknown whether vocal differences in bearded seals reflect breeding 
population structure, or simply local variations in calls that are 
learned and used by breeding individuals. In the latter case, if 
bearded seals commonly disperse from natal sites to different sites for 
breeding, the vocal differences would not reflect breeding population 
structure (Risch et al., 2007).
    In the status review report, the BRT considered a zone in the 
western Canadian Arctic where skull morphology was intermediate between 
the two recognized subspecies, vocalizations were more similar to those 
of E. b. nauticus than to those of E. b. barbatus, and the genetics 
were more similar to E. b. barbatus than to E. b. nauticus. Recognizing 
the likelihood that no truly distinct boundary occurs in the 
distribution of the two bearded seal subspecies, and also the great 
uncertainty about where the best location for a boundary should be, the 
BRT selected the midpoint between the Beaufort Sea and Pelly Bay 
(112[deg] W. longitude), which was the region encompassed by the 
intermediate samples in the skull morphology study, as the North 
American delineation between the two subspecies, and thus also between 
the Beringia DPS and E. b. barbatus. We concurred with this delineation 
in the proposed rule.
    Based on the reviewer's comment above, and further consideration of 
the genetic results of Davis et al. (2008), we now conclude a stronger 
argument can be made for placing the boundary between the two 
subspecies at 130[deg] W. long., rather than at 112[deg] W. long. The 
study by Davis et al. (2008) used two different approaches to detect 
genetic variation. A pairwise comparison of bearded seal samples from 
around the Arctic found differentiation between all sample locations, 
including the Bering Sea and the Amundsen Gulf (the eastern extent of 
the Beaufort Sea, which was included in our proposed Beringia DPS); the 
second approach, with a commonly used population-genetic analysis 
called STRUCTURE, found only two groups, with the Bering Sea (St. 
Lawrence Island and Gulf of Anadyr) samples clustering separately from 
the remainder (Amundsen Gulf, Labrador Sea, Greenland, and Svalbard). 
One of the 16 Amundsen Gulf samples was strongly assigned to the Bering 
Sea cluster, and the inferred ancestry of the Amundsen Gulf samples was 
21 percent from the Bering Sea cluster indicating substantial current 
or historical gene flow between the Bering Sea and the Amundsen Gulf 
(and presumably the Beaufort Sea, which lies between), and again 
confirming that the Amundsen Gulf is a transitional region.
    A line at 130[deg] W. long. divides the two clusters found by Davis 
et al. (2008) in the STRUCTURE analysis and is consistent with that 
study's pairwise differences between the Bering Sea and Amundsen Gulf 
samples. This line also falls within the zone found to be transitional 
in skull morphology, and it recognizes the vocalization differences 
found between Barrow and the western Canadian Arctic (7 of 8 recording 
locations east of 130[deg] W. long.). Finally, this line corresponds 
closely to the margin of the continental shelf that runs north along 
the Arctic Basin at the western edge of the Canadian Arctic.
    Moving the eastern boundary of the Beringia DPS from 112[deg] W. 
long. to 130[deg] W. long. would have little or no impact on risk and 
threat scores and no impact on ESA listing status. The estimates of 
bearded seal abundance in the vicinity of these alternative boundaries 
are too low to significantly alter the overall abundance estimate of 
either the Beringia DPS or the E. b. barbatus subspecies by including 
them in one or

[[Page 76752]]

the other group. The average bearded seal numbers estimated by Stirling 
et al. (1982) in the Amundsen Gulf, which was originally included in 
the Beringia DPS but is now considered part of the E. b. barbatus 
subspecies after moving the eastern boundary, was 1,015 individuals. 
Compared with the overall population estimates of 155,000 for the 
Beringia DPS and 188,000 for E. b. barbatus, this number is small and 
well within the imprecision associated with the estimates. Therefore, 
we have concluded that the best information currently available 
supports an eastern boundary line for the Beringia DPS at 130[deg] W. 
long. and we have revised this final rule accordingly.
    Comment 2: A peer reviewer expressed the view that there are 
conservation concerns associated with the failure to recognize a DPS in 
the Bering Sea and noted that the Bering Sea is at the southern edge of 
the distribution of bearded seals where there is greater risk of losing 
ice during the spring pupping season than in the Beaufort and Chukchi 
seas. This reviewer also suggested that certain other threats are also 
likely to affect this region more; for example, increased shipping and 
fishing are expected in the Bering Sea.
    Response: Under our DPS Policy, we determine whether any species 
division is discrete and significant before evaluating whether any such 
potential DPSs qualify as threatened or endangered. In the case of the 
Bering Sea, there is no compelling evidence that the bearded seals 
there are distinct from the bearded seals of the Chukchi and Beaufort 
seas, and indeed large numbers of the bearded seals found seasonally in 
the Chukchi and Beaufort seas are associated with breeding areas in the 
Bering Sea. Species often are more vulnerable to threats at the 
extremes of the range, but the ESA status must be based on the species, 
subspecies, or DPS as a whole, with due regard for whether any 
vulnerable extremities of the range constitute a significant portion of 
the overall range.
    Although increases in shipping and commercial fishing pose 
potential threats to bearded seals, it is not clear that those threats 
will be greater in the Bering Sea than in the Beaufort and Chukchi 
seas. Future conditions in which a reduced ice regime allows for more 
shipping and fishing will likely also result in very different 
distributions of bearded seal prey communities and seasonal 
congregations that might be vulnerable to oil spills from shipping 
accidents. The BRT considered the likelihood that these risks would 
increase in the future, but projecting the specific geographic 
distributions of these risks within the Beringia DPS is presently not 
feasible.
    Comment 3: A peer reviewer commented that the identified components 
of uncertainty with the model projections of changes in sea ice cover 
were not particularly well explained. This reviewer expressed the 
opinion that additional detail could be provided regarding the relative 
size of the uncertainty components and how maximum and minimum 
concentrations were defined when considering projections from several 
models, averaged over 11-year periods, with presumably a range of 
starting conditions, and under at least two different emissions 
scenarios. In contrast, another peer reviewer expressed the opinion 
that the uncertainties associated with the model projections were well 
identified and characterized.
    Response: As we discussed in the status review report and in the 
preamble to the proposed rule, there are three main sources of 
uncertainty in climate predictions: large natural variability, the 
range in emissions scenarios, and across-model differences (i.e., 
differences between models in physical parameterizations and 
resolution). For the 21st century projections considered in our 
analysis, beyond about 2050, the dominant source of uncertainty is the 
choice of emissions scenario. Because the current consensus is to treat 
all six ``marker'' scenarios from the Special Report on Emissions 
Scenarios (SRES; IPCC, 2000) as equally likely, one option for 
representing the full range of variability in potential outcomes would 
be to project from any model under all six scenarios. This approach is 
impractical in many situations, so the typical procedure is to use an 
intermediate scenario to predict trends, or one intermediate and one 
extreme scenario to represent a significant range of variability. In 
our analysis, model outputs under both the A1B (``medium'') and A2 
(``high'') emissions scenarios were included in projecting the seasonal 
cycle of sea ice extent at a regional level. By including output under 
both scenarios, the number of ensemble members was doubled and 
represented much of the range of variability contained in the SRES 
scenarios. The projected distributions of sea ice were mapped using 
model output under the A1B emissions scenario from the six CMIP3 models 
that met the performance criteria for projecting sea ice, and the ice 
concentrations were averaged over 11-year periods to minimize the 
influence of year-to-year variability.
    Hawkins and Sutton (2009) discussed that for time horizons of many 
decades or longer and at regional or larger scales, the other dominant 
source of uncertainty is across-model differences. As was noted in the 
status review report, for the bearded seal analysis, these across-model 
differences were addressed, and mitigated in part, by using ensemble 
means from multiple models. To reduce the impacts of models that 
performed poorly, criteria were applied to cull models with large 
errors in reproducing the magnitude of the observed seasonal cycle of 
sea ice extent. The uncertainty due to differences among the models was 
also explored by mapping for each 11-year period the projected ice 
distribution for the model with the least and greatest ice extent, 
along with the distribution of average ice concentrations as noted 
above.
    Comment 4: A peer reviewer expressed the opinion that use of 
temperatures as a proxy for projecting sea ice conditions in the Sea of 
Okhotsk appears problematic given that: (1) The climate models did not 
perform satisfactorily at projecting sea ice, and sea ice extent is 
strongly controlled by temperature; and (2) temperature itself is 
strongly controlled by sea ice conditions.
    Response: The decision to use temperature as an indicator for the 
presence of ice is a geographic size issue. While the climate models' 
grid size is too coarse to develop full sea ice physics for the Sea of 
Okhotsk, these models are able to resolve temperature, which is mostly 
controlled by large-scale weather patterns on the order of 500 km or 
more. As the reviewer notes, sea ice extent is strongly controlled by 
temperature; this is especially true for smaller bodies of water 
relative to the grid size of available models. Thus, whether the whole 
geographic region around the Sea of Okhotsk is above or below the 
freezing point of sea water should be a reasonable indicator of the 
presence or absence of sea ice.
    Comment 5: A peer reviewer and several public comments pointed out 
that assessing impacts to bearded seals from climate change through the 
end of this century is inconsistent with: (1) Other recent ESA 
determinations for Arctic species, such as ribbon seal and polar bear, 
that considered species responses through mid-century; and (2) IUCN red 
list process, which uses a timeframe of three generation lengths. 
Related public comments, including from the State of Alaska, noted that 
NMFS's recent ESA listing determination for the ribbon seal and a 
subsequent court decision concluded

[[Page 76753]]

that projections of climate scenarios beyond 2050 are too heavily 
dependent on socioeconomic assumptions and are therefore too divergent 
for reliable use in assessing threats to the species. A reviewer and 
some commenters expressed the opinion that trying to predict the 
responses of bearded seals to environmental changes beyond mid-century 
increases the uncertainty unreasonably. A few commenters suggested that 
the altered approach is significant because the listing determination 
is wholly dependent upon NMFS's use of a 100-year foreseeable future. 
Several commenters expressed the opinion that inadequate justification 
was provided for NMFS's use of a 100-year foreseeable future. Many of 
these commenters suggested that the best scientific data support a 
``foreseeable future'' time frame of no more than 50 years, and some 
commenters such as the State of Alaska suggested a shorter time horizon 
of no more than 20 years. In contrast, another peer reviewer and some 
commenters expressed support for use of climate model projections 
through the end of the 21st century.
    Response: The ESA requires us to make a decision as to whether the 
species under consideration is in danger of extinction throughout all 
or a significant portion of its range (endangered), or is likely to 
become endangered within the foreseeable future throughout all or a 
significant portion of its range (threatened) based on the best 
scientific and commercial data available. While we may consider the 
assessment processes of other scientists (i.e., IUCN), we must make a 
determination as to whether a species meets the definition of 
threatened or endangered based upon an assessment of the threats 
according to section 4 of the ESA. We have done so in this rule, using 
a threat-specific approach to the ``foreseeable future'' as discussed 
below and in the proposed listing rule.
    In the December 30, 2008, ribbon seal listing decision (73 FR 
79822) the horizon of the foreseeable future was determined to be the 
year 2050. The reasons for limiting the review to 2050 included the 
difficulty in incorporating the increased divergence and uncertainty in 
future emissions scenarios beyond this time, as well as the lack of 
data for threats other than those related to climate change beyond 
2050, and that the uncertainty inherent in assessing ribbon seal 
responses to threats increased as the analysis extended farther into 
the future. By contrast, in our more recent analyses for spotted, 
ringed, and bearded seals, we did not identify a single specific time 
as the foreseeable future. Rather, we addressed the foreseeable future 
based on the available data for each respective threat. This approach 
better reflects real conditions in that some threats (e.g., disease 
outbreaks) appear more randomly through time and are therefore 
difficult to predict, whereas other threats (climate change) evince 
documented trends supported by paleoclimatic data from which reasonably 
accurate predictions can be made farther into the future. Thus, the 
time period covered for what is reasonably foreseeable for one threat 
may not be the same for another. The approach is also consistent with 
the memorandum issued by the Department of the Interior, Office of the 
Solicitor, regarding the meaning of foreseeable future (Opinion M-
37021; January 16, 2009). In consideration of this modified threat-
specific approach, NMFS initiated a new status review of the ribbon 
seal on December 13, 2011 (76 FR 77467).
    As discussed in the proposed listing rule, the analysis and 
synthesis of information presented in the IPCC's AR4 represents the 
scientific consensus view on the causes and future of climate change. 
The IPCC's AR4 used state-of-the-art atmosphere-ocean general 
circulation models (AOGCMs) under six ``marker'' scenarios from the 
SRES (IPCC, 2000) to develop climate projections under clearly stated 
assumptions about socioeconomic factors that could influence the 
emissions. Conditional on each scenario, the best estimate and likely 
range of emissions were projected through the end of the 21st century. 
In our review of the status of the bearded seal, we considered model 
projections of sea ice developed using the A1B scenario, a medium 
``business-as-usual'' emissions scenario, as well the A2 scenario, a 
high emissions scenario, to represent a significant range of 
variability in future emissions.
    We also note that the SRES scenarios do not assume implementation 
of additional climate initiatives beyond current mitigation policies. 
This is consistent with consideration of ``existing'' regulatory 
mechanisms in our analysis under ESA listing Factor D. It is also 
consistent with our Policy on Evaluating Conservation Efforts (68 FR 
15100; March 28, 2003), which requires that in making listing decisions 
we consider only formalized conservation efforts that are sufficiently 
certain to be implemented and effective.
    The model projections of global warming (defined as the expected 
global change in surface air temperature) out to about 2040-2050 are 
primarily due to emissions that have already occurred and those that 
will occur over the next decade. Thus conditions projected to mid-
century are less sensitive to assumed future emissions scenarios. For 
the second half of the 21st century, however, the choice of an 
emissions scenario becomes the major source of variation among climate 
projections. As noted above, in our 2008 listing decision for ribbon 
seal, the foreseeable future was determined to be the year 2050. The 
identification of mid-century as the foreseeable future took into 
consideration the approach taken by the FWS in conducting its status 
review of the polar bear under the ESA, and the IPCC assertion that GHG 
levels are expected to increase in a manner that is largely independent 
of assumed emissions scenarios until about the middle of the 21st 
century, after which the emissions scenarios become increasingly 
influential.
    Subsequently, in the listing analyses for spotted, ringed, and 
bearded seals, we noted that although projections of GHGs become 
increasingly uncertain and subject to assumed emissions scenarios in 
the latter half of the 21st century, projections of air temperatures 
consistently indicate that warming will continue throughout the 
century. Although the magnitude of the warming depends somewhat on the 
assumed emissions scenario, the trend is clear and unidirectional. To 
the extent that the IPCC model suite represents a consensus view, there 
is relatively little uncertainty that warming will continue. Because 
sea ice production and persistence is related to air temperature 
through well-known physical processes, the expectation is also that 
loss of sea ice and reduced snow cover will continue throughout the 
21st century. Thus, the more recent inclusion of projections out to the 
year 2100 reflects NMFS's intention to use the best and most current 
data and analytical approaches available. AOGCM projections 
consistently show continued reductions in ice extent and multi-year ice 
(ice that has survived at least one summer melt season) throughout the 
21st century (e.g., Holland et al., 2006; Zhang and Walsh, 2006; 
Overland and Wang, 2007), albeit with a spread among the models in the 
projected reductions. In addition, as discussed by Douglas (2010), the 
observed rate of Arctic sea ice loss has been reported as greater than 
the collective projections of most IPCC-recognized AOGCMs (e.g., 
Stroeve et al., 2007; Wang and Overland, 2009), suggesting that the 
projections of sea ice declines within this century may in fact be 
conservative.

[[Page 76754]]

    We concluded that in this review of the status of the bearded seal, 
the climate projections in the IPCC's AR4, as well as the scientific 
papers used in this report or resulting from this report, represent the 
best scientific and commercial data available to inform our assessment 
of the potential impacts from climate change. In our risk assessment 
for bearded seals, we therefore considered the full 21st century 
projections to analyze the threats stemming from climate change. We 
continue to recognize that the farther into the future the analysis 
extends, the greater the inherent uncertainty, and we incorporated that 
consideration into our assessments of the threats and the species' 
responses to the threats.
    Comment 6: A peer reviewer noted that the cut-off criteria used to 
define areas of projected sea ice concentrations suitable for whelping, 
nursing, and molting were reasonable. Another reviewer commented that 
the criteria probably provide an adequate basis for estimating changes 
in the amount of available bearded seal habitat, but noted that the 
question of whether a more complex definition of suitable habitat could 
be supported by the available data was not fully explored in the status 
review report. Both of these reviewers noted that the relationship 
between sea ice characteristics and bearded seal habitat selection is 
likely more complex than the simple sea ice concentration and 
bathymetry criteria considered in the proposed rule.
    A related public comment suggested that NMFS should re-evaluate the 
sea ice concentration criteria (i.e. the sea ice concentrations 
identified as sufficient for bearded seal whelping, nursing, rearing, 
and molting) to determine whether these thresholds are protective 
enough because they do not take into account the lower probability of 
occurrence of bearded seals at medium-low ice concentrations, and thus 
may have over-estimated the seals' ability to use marginal sea ice 
habitat. Another commenter suggested that NMFS should use an empirical 
static modeling approach (Guisan and Zimmerman, 2000) to defensibly 
derive habitat parameters and use traditional ecological knowledge 
(TEK) to provide presence/absence data for model fitting and 
evaluation.
    Response: We acknowledge that the prediction and projection of 
bearded seal habitat based solely on water depth and a range of 
preferred sea ice concentration is based upon incomplete information 
and incorporates assumptions. We are not aware of additional data that 
would support alternative, more complex, and possibly more realistic 
habitat descriptions, and the reviewers and commenters did not identify 
additional data sets that should be considered in this context. Without 
such additional data, the suggestion to create a more formal empirical 
static model for bearded seal habitat is not presently feasible (though 
we did use a form of this approach in deriving the preferred ice 
concentrations from surveys in a portion of the Bering Sea). We agree 
that TEK can be a good source of information about bearded seal habitat 
requirements. However, incorporating information obtained by 
traditional ways of observing bearded seals into statistical models of 
habitat would require additional, dedicated studies that are beyond the 
scope of ESA listing determinations, which must be made within the time 
limits required by section 4(b) of the ESA and the regulations 
implementing the ESA at 50 CFR 424.17, using the best scientific and 
commercial data that are currently available.
    Comment 7: A peer reviewer questioned whether the 500 m depth limit 
used to define the core distribution (e.g., whelping, breeding, 
molting, and most feeding) of bearded seals is too deep, and suggested 
that an analysis of how sensitive the conclusions might be to the 
choice of depth limit would be appropriate. A commenter agreed, noting 
that the literature review for the petition to list bearded seals and 
the status review report found that bearded seals prefer depths less 
than 200 m.
    Response: Our literature review found that although bearded seals 
seem to prefer depths less than 200 m, the species occurs in waters 
deeper than 500 m, and dives to depths of 300-500 m have been recorded 
for a substantial portion of the bearded seals that have been studied 
with satellite-linked dive recorders. Because the 200 m and 500 m depth 
contours tend to be very close to each other around the continental 
slope margins of the Beringia DPS, the area defined by a boundary of 
200 m is only 2 percent smaller than that defined by a 500 m boundary. 
Therefore, the conclusions about risk from habitat loss for that DPS 
would not be sensitive to the choice of depth limit. In the Sea of 
Okhotsk and the range of E. b. barbatus, the differences in area 
encompassed by the 200 m and 500 m depth boundaries are greater (27 
percent and 36 percent, respectively). Even for these populations 
units, however, the conclusions about risk from habitat loss are not 
expected to be particularly sensitive to the choice of depth limit 
because both present and future habitat areas were computed as the 
areas where water depth and ice concentration are suitable. If we have 
overestimated the current areas of available habitat by selecting 500 m 
as the depth limit, the projected future areas of available habitat 
would also be overestimated, but the predicted change, driven by loss 
of sea ice extent, would be similar under either depth limit choice.
    Comment 8: A peer reviewer expressed the opinion that while it is 
reasonable to ask the question of whether there will be habitat gains 
with projected changes in sea ice cover, the more important question is 
what types and quantities of food would be available in those areas 
gained. This reviewer noted that in most cases, what are projected for 
the Beringia DPS are not habitat gains, but rather possible earlier 
seasonal access to areas that are currently used somewhat later; and 
comparing areas of gains and losses is only informative if there is 
some way to scale their relative values. In addition, he pointed out 
that the habitat projected to be lost in the Bering Sea during spring 
is a region that is among the most productive for bearded seal prey 
species; while in contrast, areas of projected gains in the Beaufort 
Sea and along the shelf break of the Arctic basin are not known to be 
highly productive. This reviewer commented that it therefore appears 
that the Beringia DPS will lose highly productive habitat in southern 
regions, and probably gain access earlier in the spring to low 
productivity areas.
    Two related comments expressed the opinion that the reviewer's 
suggestion that bearded seals will ``lose highly productive habitat in 
southern regions, and probably gain access earlier in the spring to low 
productivity areas'' (p. 8; NMFS, 2012) did not consider that the 
projected climate change effects will also affect ocean productivity 
such that some areas of low productivity will be highly productive in 
the foreseeable future (and vice versa). These commenters also 
expressed the view that the proposed rule did not adequately evaluate 
how the productivity of the ocean environment could be expected to 
change in response to the different projected climate scenarios, and 
instead focused primarily on projected changes in sea ice cover. A few 
other related comments more generally suggested that some habitat 
changes caused by projected changes in climatic conditions, such as 
increased open water foraging areas, may be beneficial to bearded 
seals.
    Finally, a commenter expressed the opinion that the supplementary 
habitat analysis provided to the special peer reviewers indicates that 
in assessing the

[[Page 76755]]

projections of future sea ice extent and distribution and potential 
impacts to bearded seals, NMFS arbitrarily adopted a precautionary 
approach that assumed the worst possible future habitat conditions 
without taking into account any future potential habitat gains.
    Response: The range of opinions and lack of consensus among these 
reviewers and commenters is understandable given the incomplete 
scientific understanding of bearded seal habitat requirements and the 
difficulty in projecting future habitat conditions. There is a near 
universal consensus in the scientific community that the Arctic climate 
will continue to warm and that sea ice will decline in extent and 
thickness as a result. The magnitude of these changes is subject to 
debate, but the general direction of the trend is widely accepted and 
is based on well-known physical principles of radiative forcing by 
GHGs. There is little or no similar consensus about the biological 
responses that are most likely to follow the physical habitat changes. 
There is broad recognition that changes in sea ice and acidification of 
ocean waters will cause changes in biological communities, but the 
nature, direction, and magnitude of changes in these highly complex 
systems are highly uncertain. An additional element of uncertainty is 
the unknown resilience of bearded seals to whatever changes may occur.
    We are unaware of documented examples of bearded seals or other 
closely related species occupying new habitat in response to major and 
rapid environmental shifts, as there are no known recent-history 
analogs to the climate warming presently underway. While it is clear 
that the predicted reductions in sea ice during the remainder of this 
century will entail major changes in areas that are known to be 
important bearded seal habitat presently, it is much less certain that 
regions previously covered by very dense ice during the bearded seal's 
whelping and nursing periods will become more suitable habitat as ice 
thins and declines. In particular, we are not aware of any reliable 
basis for concluding that presently low productivity benthic habitats 
would become populated with suitable prey for bearded seals that move 
to more northerly areas. We did not receive any new information as part 
of the additional peer review and public comment period to indicate 
that our prior analysis of habitat losses anticipated in the 
foreseeable future was overstated.
    Comment 9: A peer reviewer and several commenters, including 
Canada's DFO, suggested that the potential for bearded seals to modify 
their behavior in response to climate change is underestimated, and a 
few commenters noted that this appears to contradict NMFS's emphasis in 
its recent ESA listing determinations for ribbon and spotted seals on 
the ability of ice seals to adapt to declines in sea ice. The peer 
reviewer noted, for example, that bearded seals are known to: (1) Feed 
on pelagic fish species, indicating flexibility in their diet that 
could allow them to adapt to feeding in deeper water; and (2) use 
terrestrial haul-out sites in some areas when ice is unavailable in the 
vicinity of their shallow water feeding habitat. A few commenters also 
noted that bearded seals have a diverse diet, switch from pack ice to 
open water in response to changing sea ice conditions to maintain 
access to preferred food resources, and display a wide range of habitat 
tolerances given their wide circumpolar distribution. Another peer 
reviewer commented that it is poorly known how a species with a 
generation time of about 11 years would adapt to the large 
redistribution of available habitat predicted for the Beringia DPS, 
noting that it would do so only under a drastically altered 
distribution and migratory scheme.
    Response: The status review report presented evidence for 
resilience of bearded seals in responding to changes in paleoclimatic 
history (p. 190-192; Cameron et al., 2010). Two main factors argue for 
a conservative approach to drawing inferences about whether bearded 
seals will be able to adapt to the changes anticipated through the 
remainder of this century. First, the paleoclimatic history has 
relatively poor resolution for determining how rapid past warming 
events have been and then comparing those rates with the rate of the 
present warming event. Although a few past warming events have 
apparently been rapid, there is insufficient resolution to judge 
whether that has typically been the case. If large warming events of 
the past have typically occurred over centuries rather than decades, 
the fact that bearded seals exist as a species today does not 
necessarily reflect their capacity to adapt to a more rapid change such 
as the present warming. The other reviewer's comment about the 
generation time of the species reflects this concern as well. 
Individual bearded seals are likely to be faithful to their breeding 
sites; shifts in breeding range are therefore more likely to occur by 
successive generations of new breeders establishing their breeding 
sites farther north in response to reduced ice extent, rather than by 
individuals making shifts within their lifetimes. If the warming and 
loss occurs too rapidly relative to the generation time, adaptation is 
unlikely to occur. Second, unlike past (pre-historic) warming events, 
the present warming is accompanied by other significant human-caused 
environmental changes that may pose additive threats, such as ocean 
acidification, increased shipping, and chemical pollutants.
    The present-day traits of bearded seals such as a diverse diet and 
occasional use of terrestrial haul-out sites must be interpreted 
carefully in evaluating their implications for resilience. While the 
diet is taxonomically diverse, the vast majority of bearded seal 
foraging seems to be on or near the bottom. They have adaptations, such 
as their prominent mystacial vibrissae (whiskers) and a mouth structure 
for capturing prey by suction, that indicate a relatively specialized 
mode of feeding. This contrasts with ribbon and spotted seals, which 
forage substantially in the mid-water as well as at the bottom, and 
which are adapted to a more generalized mode of seizing prey in their 
sharp teeth.
    Despite the use of haul-out sites on shore in the Sea of Okhotsk 
and occasionally in other areas, these sites have not been documented 
for whelping and nursing. The general phocid seal (``earless'' or 
``true'' seal) trait of having young that are vulnerable to carnivore 
predators has not proven to be adaptable throughout evolutionary 
history. The group likely evolved in sea ice as a strategy of predator 
avoidance and the only present-day exceptions to the ice-breeding 
strategy occur in places where reproductive sites on shore are devoid 
of or substantially protected from predators. Such sites are uncommon 
within the range of bearded seals and therefore it is unlikely that 
they could successfully make a switch to land-based reproduction. 
Therefore, the regional or occasional use of haul-out sites on land, 
primarily during summer and autumn months, does not imply that bearded 
seals have much potential for switching to a strategy of breeding on 
shore in the absence of suitable sea ice.
    Comment 10: A peer reviewer expressed the opinion that the concern 
about future accessibility of shallow water feeding habitat for bearded 
seal whelping and nursing is not reasonable. This reviewer noted that 
the central and northern Bering Sea and all of the Chukchi Sea are 
shallow water feeding habitat for bearded seal females with pups, and 
suggested that the ice edge

[[Page 76756]]

would have to be north of Barrow by May for this concern to be founded.
    Response: The sea ice projections indicate that both the ice 
concentrations and overlap between sea ice and shallow waters (less 
than 500 m deep) in May will be significantly reduced by 2090, 
especially in the Okhotsk and Bering seas in ``average'' sea ice years, 
and additionally in the eastern Chukchi and central Beaufort in 
``minimal'' sea-ice years. This could lead to increased competition and 
decreased carrying capacity for bearded seal populations in those 
areas.
    Comment 11: A peer reviewer commented that the threat posed by 
polar bear predation should be qualified. This reviewer stated that the 
degree to which predation by polar bears may increase in the future is 
not determinable, and that bearded seals may also become less 
accessible to polar bears as seasonal sea ice decreases. A related 
comment also noted that it is expected that polar bear populations will 
decline, which could reduce predator effects on bearded seals.
    Response: The BRT's speculation about future scenarios of polar 
bear predation (p. 140; Cameron et al., 2010) included qualifications 
and considerations similar to those expressed by this reviewer and 
commenter. The threat scoring by the BRT did not assign high levels of 
threat or certainty about polar bear predation, and thus this risk 
factor was not a significant contributor to the overall assessment of 
risks facing the Beringia DPS.
    Comment 12: A peer reviewer commented that new information 
regarding the health and status of bearded seals in Alaska that became 
available after the proposed rule was published (i.e., Quakenbush et 
al., 2011) should be considered. This reviewer expressed the opinion 
that these data indicate current ice conditions are not affecting vital 
rate parameters of the Beringia DPS in the Bering and Chukchi seas. The 
State of Alaska submitted a summary of this information with its 
comments on the proposed rule, and also subsequently submitted a full 
copy of Quakenbush et al. (2011), commenting that these data indicate 
bearded seals are currently healthy.
    Response: We have taken Quakenbush et al.'s (2011) data (available 
at http://alaskafisheries.noaa.gov/protectedresources/seals/ice.htm) 
into consideration in reaching our final listing determination, and 
these data will be useful in future status reviews. We note, however, 
that healthy individual animals are not inconsistent with a population 
facing threats that would cause it to become in danger of extinction in 
the foreseeable future. For example, animals sampled from the 
endangered Western DPS of Steller sea lions have consistently been 
found to be healthy. In the case of the Beringia DPS, substantial 
losses associated with reductions in the extent and timing of sea ice 
cover could not be detected by assessing the health of survivors. In 
fact, survivors might be expected to fare well for a period of time as 
a consequence of reduced competition.
    Comment 13: A peer reviewer found the assessment of subsistence 
harvest in the proposed rule reasonable, noting that harvest appears to 
be substantial in some areas of the Arctic, but appears to remain 
sustainable. This reviewer commented that the ISC has been developing a 
harvest monitoring program with personnel assistance from the State of 
Alaska. The Marine Mammal Commission also commented that it does not 
believe that the subsistence harvest of bearded seals in U.S. waters 
constitutes a significant risk factor for the Beringia DPS, and several 
other commenters expressed similar views regarding subsistence harvest 
in U.S. waters as well as elsewhere. In contrast, another commenter 
expressed concern that the impact of Native subsistence hunting on 
bearded seals is substantially underestimated. The commenter expressed 
the view that NMFS needs to obtain reliable estimates of subsistence 
harvest of bearded seals such that their conservation status can be 
more closely monitored, in particular considering climate change is 
expected to have impacts on bearded seals and those could be 
exacerbated by other factors such as harvest. This commenter also 
suggested that additional resources should be devoted to obtaining 
these estimates of subsistence harvest, and suggested that NMFS 
institute a harvest monitoring system rather than rely on self-
reporting.
    A number of commenters, including the ISC, emphasized that ice 
seals have been a vital subsistence species for indigenous people in 
the Arctic and remain a fundamental resource for many northern coastal 
communities. Some commenters, including the ISC, requested that NMFS 
identify what additional measures would be required before the 
subsistence hunt could be affected by Federal management of bearded 
seals and under what conditions the agency would consider taking those 
additional measures, and this information should be provided to 
residents of all potentially affected communities.
    Response: We recognize the importance of bearded seals to Alaska 
Native coastal communities. Section 101(b) of the Marine Mammal 
Protection Act (MMPA) provides an exemption that allows Alaska Natives 
to take bearded seals for subsistence purposes as long as the take is 
not accomplished in a wasteful manner. Section (10)(e) of the ESA also 
provides an exemption from its prohibitions on the taking of endangered 
or threatened species by Alaska Natives for subsistence purposes, 
provided that such taking is not accomplished in a wasteful manner. 
Although the number of bearded seals harvested annually by Alaska 
Natives is not precisely known or comprehensively monitored, ongoing 
hunter surveys in several communities give no indication that the 
harvest numbers are excessive or have a significant impact on the 
dynamics of the populations (Quakenbush et al., 2011). The numbers of 
seals harvested have likely declined substantially in recent decades 
because the need for food to supply sled-dog teams has diminished as 
snowmobiles have been adopted as the primary means of winter transport. 
The proportion of Alaska Natives that make substantial use of marine 
mammals for subsistence may also have declined, due to increased 
availability and use of non-traditional foods in coastal communities. 
However, there may also be a counterbalancing increase in awareness of 
health benefits of traditional foods compared with non-traditional 
alternatives. Under the MMPA the Alaska stock of bearded seals will be 
considered ``depleted'' on the effective date of this listing. In the 
future, if NMFS expressly concludes that the harvest of bearded seals 
by Alaska Natives is materially and negatively affecting the species, 
NMFS may regulate such harvests pursuant to sections 101(b) and 103(d) 
of the MMPA. NMFS would have to hold an administrative hearing on the 
record for such proposed regulations. Currently, based on the best 
available data, the subsistence harvest of bearded seals by Alaska 
Natives appears sustainable. If the current situation changes, NMFS 
will work under co-management with the ISC (under section 119 of the 
MMPA) to find the best approach to ensure that sustainable subsistence 
harvest of these seals by Alaska Natives can continue into the future. 
NMFS is also continuing to work with the ISC to develop and expand 
collaborative harvest monitoring methods.
    Comment 14: A peer reviewer commented that it is suggested that 
climate change will likely alter patterns of subsistence harvest of 
marine mammals by hunting communities.

[[Page 76757]]

However, this reviewer noted that hunter questionnaire data from five 
Alaska villages (Quakenbush et al., 2011) did not indicate decreases in 
bearded seal availability at any location.
    Response: The alterations to subsistence harvest patterns by 
climate change suggested in the proposed rule are likely to occur at 
some unspecified time in the future, when changes to ice cover are 
predicted to be more pronounced that they are at present. The hunter 
questionnaire data relate to recent, not future, bearded seal 
availability.
    Comment 15: A peer reviewer commented that no information from the 
subsistence community or the ISC is considered in the status review 
report. This reviewer noted that subsistence hunters know a great deal 
about the biology, ecology, behavior, and movement of bearded seals, 
and keep a close watch for changes in the seals relative to 
environmental change. Several related public comments, including from 
the ISC, expressed the opinion that NMFS has not made adequate use of 
TEK of Alaska Natives related to ice seals in the listing process. The 
ISC also suggested that NMFS should conduct a TEK study related to ice 
seals. In addition, another commenter suggested that NMFS should 
further investigate the adaptive capacity of bearded seals by seeking 
the observations of Native communities, especially those that live in 
the southern part of the range of the Beringia DPS.
    Response: The contribution of TEK to the overall understanding of 
ice-associated seal species is greater than commonly acknowledged, and 
to the extent that such information is available, we have considered it 
in this final rule. Following publication of the proposed listing 
determination, we notified the ISC of the proposal and requested 
comments on the proposed rule. NMFS held three public meetings in 
Anchorage, Barrow, and Nome, Alaska, and outlying communities in the 
North Slope Borough and accessed the Barrow hearing via 
teleconferencing. We also contacted potentially affected tribes by mail 
and offered them the opportunity to consult on the proposed action and 
discuss any concerns they may have. We fully considered all of the 
comments received from Alaska Native organizations and individuals with 
TEK, transmitted either in written form or orally during public 
hearings, in developing this final rule.
    We recognize that much of our basic understanding of the natural 
history of ice-associated seals stems from information imparted by 
indigenous Arctic hunters and observers to the authors who first 
documented the biology of the species in the scientific literature. 
NMFS recognizes that Alaska Native subsistence hunting communities hold 
much more information that is potentially relevant and useful for 
assessing the conservation status of ice seals. Productive exchanges of 
TEK and scientific knowledge between the agency and Alaska Native 
communities can take many forms. Collaborative research projects, for 
example, provide opportunities for scientists and hunters to bring 
together the most effective ideas and techniques from both approaches 
to gather new information and resolve conservation issues. NMFS 
supports efforts to expand reciprocal knowledge-sharing, which can be 
facilitated through our co-management agreements. These efforts require 
time to build networks of relationships with community members, and the 
ESA does not allow us to defer a listing decision in order to collect 
additional information.
    Comment 16: A peer reviewer commented that there were only two time 
scales considered by the BRT in the status review report in analyzing 
demographic risks: ``imminent'' risk (i.e., the present), and risk in 
the foreseeable future. Consequently, this reviewer suggested that in 
the ESA listing determination an endangered time scale is equated with 
the extremely short time frame of present-day, which is not consistent 
with the term ``in danger of extinction.'' This reviewer expressed the 
view that this also contrasts with the more precautionary 30-year and 
75-year endangered time frames used in other recent ESA assessments for 
black abalone and the Hawaiian false killer whale DPS, respectively.
    Response: The reviewer incorrectly equated the BRT's assessment of 
``imminent risk'' with a time frame of zero years to reach an 
extinction threshold. The BRT members' assessment of the severity of 
the demographic risks posed to the persistence of each of the bearded 
seal DPSs was formalized using a numerical scoring system. Each BRT 
member assigned a severity score to questions that, in general, asked, 
``Are the conditions at present such that the species is already or 
soon to be on a path toward demise, from which it would not likely 
deviate unless appropriate protective measures were undertaken?'' 
Implicit in this question is the possibility that it may take some 
time, perhaps years or generations, to go from present conditions to 
demise. Although the BRT did not specify a time frame (this was left to 
individuals to consider implicitly in their scoring), it is incorrect 
to assert that the procedure was less precautionary than other examples 
in which the time frame was made explicit. A qualitative assessment of 
``imminent risk'' is not the same as setting a zero time to extinction 
threshold in a quantitative assessment.
    The black abalone and false killer whale examples cited were both 
cases in which there was a relatively well-documented (i.e., 
quantified) decline of the species. In such cases it is useful and 
practical to define an extinction threshold, which may include a time 
frame as well as an abundance threshold. Models can then be constructed 
to assess probabilities of reaching the extinction threshold abundance 
within the specified time frame. Defining an extinction threshold for 
bearded seals and attempting to assess the probability of reaching such 
a threshold within a specified time frame is not possible using 
existing data because of the lack of quantitative information about the 
current status and about the sensitivity of vital rates to projected 
environmental conditions.
    Comment 17: A peer reviewer commented that although in general the 
needed expertise was brought to bear on the general biology of bearded 
seals and the most serious threats facing the species, it is unclear 
whether sufficient expertise was available to evaluate the evidence on 
the discreteness of bearded seal populations or on determining what 
time scales may be of interest to decision makers in interpreting the 
data on whether the population units warrant being listed as threatened 
or endangered. This reviewer noted that, for example, there were no 
members on the BRT or among the peer reviewers of the status review 
report that would list as their primary expertise population genetics, 
taxonomy, or risk analysis.
    Response: The BRT was composed of eight marine mammal biologists, 
one climate scientist, one marine chemist, and one fishery biologist. 
Although the BRT did not include members whose primary expertise is 
population genetics or taxonomy, several of the members were senior 
level biologists and ecologists familiar with population genetics and 
taxonomy concepts for seals and other species. The peer reviewers of 
the draft status review report also included a marine mammal specialist 
who has supervised and published research on genetic analysis of the 
phylogeny of pinnipeds. The BRT incorporated a simplified structured 
decision-making process into the qualitative risk analysis, which 
considered a full range of time scales for

[[Page 76758]]

extinction risk over the period from the present to the extent of the 
foreseeable future. Given the limited time and data available, the BRT 
was not able to incorporate a quantitative assessment of various time 
scales in its risk analysis, though that may be possible and desirable 
for inclusion in future updates to the status of the species.
    Comment 18: A peer reviewer commented that the proposed listings 
are premature, suggesting that there is still time to monitor the 
status of bearded seal populations and their responses to changes to 
have better information upon which to base management decisions. This 
reviewer discussed that the climate model projections suggest there 
will be sufficient ice to support bearded seal pupping in the Bering 
Sea through 2050 and beyond, and there is even more time before ice 
conditions are forecast to change appreciably in the Chukchi and 
Beaufort seas, noting that it is also likely there is at least 25 years 
before a significant change in the Okhotsk DPS can occur. In addition, 
this reviewer commented that although there is no evidence that bearded 
seals pup successfully on land, the Beringia and Okhotsk DPSs are 
moderately large, are widely distributed across varied habitat, and 
appear to have a high degree of genetic diversity. The reviewer 
suggested that they are thus unlikely to be at high risk of major 
declines due to environmental perturbations including catastrophic 
events, and as such, they are not at risk of extinction now or in the 
foreseeable future, and should not be listed as threatened.
    In opposing the proposed listing of the Beringia DPS, several 
related public comments, including from the State of Alaska, similarly 
noted that the Beringia DPS appears to have healthy abundant 
populations across its range. Several commenters suggested that the ESA 
is not intended to list currently healthy abundant species that occupy 
their entire historical ranges. Some of these commenters expressed the 
opinion that if NMFS lists healthy abundant species under the ESA based 
on assessments that consider the potential biological consequences of 
multi-decadal climate forecasts, virtually every species could be 
considered threatened. A few commenters also stated that a conclusion 
that the Beringia DPS will decline from over 100,000 animals to being 
threatened with extinction should be accompanied with some level of 
quantification regarding what constitutes being in danger of 
extinction. Finally, the State of Alaska also commented that although 
the monitoring could be enhanced, ADFG's Arctic Marine Mammal Program 
is adequate to detect landscape population level patterns and problems, 
should they arise.
    Response: The ESA defines a threatened species as one that ``is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range'' (16 U.S.C. 
1532(20)). Whether a species is healthy at the time of listing or 
beginning to decline is not the deciding factor. The inquiry requires 
NMFS to consider the status of the species both in the present and 
through the foreseeable future. Having received a petition and 
subsequently having found that the petition presented substantial 
information indicating that listing bearded seals may be warranted (73 
FR 51615; September 4, 2008), we are required to use the best 
scientific and commercial data available to determine whether bearded 
seals satisfy the definition of an endangered or threatened species 
because of any of the five factors identified under section 4(a)(1) of 
the ESA. These data were compiled in the status review report of the 
bearded seal (Cameron et al., 2010) and summarized in the preamble to 
the proposed rule.
    We agree that the Beringia and Okhotsk DPSs are moderately large 
population units, are widely distributed and genetically diverse, and 
are not presently in danger of extinction. However, these 
characteristics do not protect them from becoming at risk of extinction 
in the foreseeable future as a consequence of widespread habitat loss. 
Based on the best available scientific data, we have concluded that it 
is highly likely that sea ice will decrease substantially within the 
range of the Beringia DPS in the foreseeable future, particularly in 
the Bering Sea. To adapt to this modified sea ice regime, bearded seals 
would likely have to shift their nursing, rearing, and molting areas to 
ice-covered seas north of the Bering Strait, where projections suggest 
there is potential for the spring and summer ice edge to retreat to 
deep waters of the Arctic basin. The most significant threats to the 
Beringia DPS were identified by the BRT as decoupling of sea ice 
resting areas from benthic foraging areas, decreases in sea ice habitat 
suitable for molting and pup maturation, and decreases in prey density 
and/or availability due to changes in ocean temperature and ice cover, 
which were scored as of `moderate' or `moderate to high' significance 
(Table 7; Cameron et al., 2010). The greatest threats to the 
persistence of bearded seals in the Okhotsk DPS were determined by the 
BRT to be decreases in sea ice habitat suitable for whelping, nursing, 
pup maturation, and molting. These threats, which were assessed by the 
BRT as of `high significance,' are more severe in the range of the 
Okhotsk DPS than in the range of the Beringia DPS because of the 
likelihood that the Sea of Okhotsk will by the end of this century 
frequently be ice-free or nearly so during April-June, the crucial 
months for these life history events.
    Data were not available to make statistically rigorous inferences 
about how these DPSs will respond to habitat loss over time. We note 
that we currently have no mechanism to detect even major changes in 
bearded seal population size (Taylor et al., 2007). However, the BRT's 
assessment of the severity of the demographic risks posed to the 
persistence of each of bearded seals DPSs was formalized using a 
numerical scoring system. The risks to the persistence of the Beringia 
and Okhotsk DPSs within the foreseeable future were judged to be 
moderate to high, with consistently higher risk scores assigned to the 
Okhotsk DPS (Table 9; Cameron et al., 2010). After considering these 
risks as well as the remaining factors from section 4(a)(1) of the ESA, 
we concluded that the Beringia and Okhotsk DPSs are likely to become 
endangered within the foreseeable future (threatened), primarily due to 
the projected loss of sea ice habitat.
    Comment 19: A peer reviewer commented that there is a high level of 
uncertainty about future sea ice concentrations in the Sea of Okhotsk, 
there is little information regarding the response of the Okhotsk DPS 
to threats from climate change, and the current status of the Okhotsk 
DPS is unknown. Several commenters expressed a similar general view 
that there are insufficient data, including on bearded seal abundance 
and population trends, to proceed with the listings at this time. Some 
commenters stated that we should defer the listing decision for the 
Beringia DPS in particular until more information becomes available. 
Two commenters specifically noted that NMFS has announced that it is 
conducting large-scale ice seal aerial surveys, and they requested that 
NMFS delay the listing determination until the results of these surveys 
become available.
    Response: Under the ESA, we must base each listing decision on the 
best available scientific and commercial data available after 
conducting a review of the status of the species and taking into 
account any efforts being made by states or foreign governments to 
protect the species, and we have done so in

[[Page 76759]]

assessing the status of the Beringia and Okhotsk DPSs. These data were 
summarized in the preamble to the proposed rule and are discussed in 
detail in the status review report (see Cameron et al., 2010). The 
existing body of literature concerning bearded seal population status 
and trends is limited, and additional studies are needed to better 
understand many aspects of bearded seal population dynamics and habitat 
relationships. However, the ESA does not allow us to defer listing 
decisions until additional information becomes available. In reaching a 
final listing determination we have considered the best scientific and 
commercial data available, including the information provided in the 
status review report as well as information received via the peer 
review process and public comment. These data are sufficient to 
conclude that the Beringia and Okhotsk DPSs are likely to become 
endangered within the foreseeable future (threatened).
    Comment 20: A peer reviewer commented that cooperative research on 
the Okhotsk DPS is needed to better understand its responses to threats 
when they occur.
    Response: We agree that there is still much to learn about bearded 
seals, particularly in the Sea of Okhotsk. Towards that end, NMFS has 
increased the scope of cooperative research efforts planned in Russian 
waters (e.g., aerial surveys and tagging projects scheduled for 2012 
and 2013).

Comments on the Climate Model Projections and the Identification and 
Consideration of Related Habitat Threats

    Comment 21: A commenter noted that studies indicate the risks from 
climate change are substantially greater than those assessed in the 
IPCC's AR4, raising concern that the IPCC climate change projections 
used in the status review report likely underestimate climate change 
risks to bearded seals.
    Response: Although recent observations of annual minimum ice extent 
in the Arctic Ocean have been outside (i.e., below) the majority of 
model runs projected from the most commonly used scenarios, a few 
models exhibit anomalies of a similar magnitude early in the 21st 
century. Nonetheless, the observed sea ice retreat has been faster than 
the consensus projection, which may have occurred either because: (1) 
climate models do not have sufficient sea ice sensitivity to the rise 
in GHG forcing, or (2) there is an unusually large contribution in 
observations from natural variability. Many of the same recent years 
have been characterized by near record high ice extents in regions such 
as the Bering Sea, for example. While we recognize the possibility that 
consensus projections may underestimate the future risks to bearded 
seals, the likelihood of that does not seem to be sufficiently 
established to warrant abandonment of the IPCC AR4 as the best 
available scientific basis for projection of future conditions.
    Comment 22: The State of Alaska noted that predicting climate 
change is made more difficult and uncertain by decades long shifts in 
temperature that occur due to such variables as the Pacific Decadal 
Oscillation (PDO).
    Response: Climate models account for PDO variability but the PDO is 
chaotic--the future points at which it will shift between its warm and 
cool phases cannot currently be predicted. To address this 
unpredictable variability, NMFS used the average from an ensemble of 
models and model runs. The average of the ensemble indicates the 
expected response forced by rising GHGs and aerosol changes. The 
individual model runs that compose the ensemble vary substantially, 
often trending above or below the average, or bouncing back and forth 
across it. The variability among the model runs in the ensemble 
reflects the unpredictability of the PDO and many other factors. We 
used the range of this variability in our projections of future ice 
conditions, for example, to characterize the minimum, mean, and maximum 
ice concentrations in future decades.
    Comment 23: Several commenters, including the State of Alaska and 
Canada's DFO, expressed the view that the AOGCMs used for climate and 
sea ice prediction are not appropriate for projecting sea ice at a 
scale that is important for bearded seals. A commenter also suggested 
that the analysis of the IPCC model projections at a regional level is 
questionable because these models perform poorly at smaller than 
continental scales. In addition, some commenters suggested that there 
should be field verification of the model predictions of sea ice 
conditions.
    Response: We used the AOGCMs to determine how soon and in which 
month sea ice cover can be expected to retreat in the future relative 
to conditions in the 20th century. This is a reasonable question to 
evaluate using the modern models, as it is occurring on a large scale. 
With regard to the comment that the model predictions should be 
verified with field observations, we note that the BRT limited the IPCC 
model projections analyzed in the status review report to those that 
performed satisfactorily at reproducing the magnitude of the observed 
seasonal cycle of sea ice extent.
    Comment 24: The State of Alaska and another commenter noted that it 
is assumed the Beringia DPS cannot survive without year-round ice. 
However, they suggested that the current status of the Okhotsk DPS 
indicates bearded seals can survive without multi-year ice.
    Response: Our risk assessment for the Beringia DPS was not based on 
an assumption that they require sea ice year-round. As discussed in the 
preamble to the proposed rule, based on the best available scientific 
data we have concluded that it is highly likely that sea ice will 
decrease substantially within the range of the Beringia DPS in the 
foreseeable future, particularly in the Bering Sea. Pup maturation and 
molting, in particular, are important life history events that depend 
on the presence of suitable sea ice (annual timing of peak pup 
maturation in April/May, and molting in May/June and sometimes through 
August).
    Comment 25: A commenter noted that it does not appear that climate 
change effects on sea ice habitat during mating or molting are likely 
to threaten the Beringia or Okhotsk DPS.
    Response: The importance of sea ice for bearded seal mating has not 
been determined. Ice may not be necessary for copulation, which may 
occur mostly in the water, but the mating season occurs during a period 
when bearded seals are closely associated with ice and when they are 
spending substantial portions of time hauled out on the ice. The BRT 
assessed the threat from loss of ice habitat for mating as being of 
`moderate significance' for the Beringia DPS and of `moderate to high 
significance' for the Okhotsk DPS. The process of molting in phocid 
seals is energetically costly and facilitated by hauling out so that 
the skin temperature can be raised above water temperatures. The BRT 
judged the threat posed from loss of ice suitable for molting as of 
`moderate to high significance' for both the Beringia and Okhotsk DPSs, 
and the threat scores were somewhat higher than for mating. The 
combination of these and other moderate threats from loss of sea ice 
habitat and ocean acidification contributed to overall threat scores 
for destruction, modification, or curtailment of habitat or range that 
were of `high significance' for the Beringia and Okhotsk DPSs.
    Comment 26: A commenter expressed the view that sea ice in the 
Arctic has been in decline for a number of years without observed 
detrimental effects on

[[Page 76760]]

bearded seals, thus calling into question NMFS's assumption that future 
declines in sea ice will inevitably result in impacts to bearded seals.
    Response: As noted in the preamble to the proposed rule and 
discussed in detail in the status review report, our present ability to 
detect changes in the Beringia and Okhotsk DPSs is limited. There are 
no population estimates sufficiently precise for use as a reference in 
judging trends. Indices of condition, such as those recently reported 
by ADFG (Quakenbush et al., 2011), are available for only a portion of 
the Beringia DPS's range and would not be expected to detect certain 
types of detrimental effects, such as an increase in pup mortality by 
predation. Therefore, while NMFS is not aware of unequivocal evidence 
that the Beringia or Okhotsk DPSs have declined, the converse is 
equally true: there is no firm evidence that these populations are 
stable or increasing. Our decision to list these DPSs is based 
primarily on our conclusion for ESA listing Factor A that ongoing and 
projected changes in sea ice habitat pose significant threats to the 
persistence of the two bearded seal DPSs.
    The primary concern about future habitat for the Beringia and 
Okhotsk DPSs stems from projected reductions in the extent and timing 
of sea ice cover. The projections are consistent with a scenario in 
which little or no impact from climate disruption has yet been felt by 
the Beringia DPS in particular, but the anticipated impacts will begin 
to appear within the foreseeable future (i.e., over the 21st century), 
as the peak ice extent becomes reduced and the sea ice retreats earlier 
in the spring. The ice-covered area is much smaller in the Sea of 
Okhotsk than the Bering Sea, and unlike the Bering Sea, there is no 
marine connection to the Arctic Ocean. Over the long-term, bearded 
seals in the Sea of Okhotsk do not have the prospect of following a 
shift in the ice front northward. The question of whether a lack of ice 
will cause the Okhotsk DPS to go extinct depends in part on how 
successful the populations are at moving their reproductive activities 
from ice to haul-out sites on shore. Although bearded seals are known 
to use land for hauling out, this only occurs in late summer and early 
autumn. The BRT is not aware of any occurrence of bearded seal whelping 
or nursing on land, so the predicted loss of sea ice is expected to be 
significantly detrimental to the long-term viability of the population.
    Comment 27: The State of Alaska and another commenter suggested 
that the record high winter ice in the Bering Sea from 2007-2010 casts 
some doubt on the determination of the threat of extinction to the 
Beringia DPS. They noted that the climate model projections make it 
clear that winter ice will continue to occur, and that the length of 
open water is the primary issue. These commenters expressed the view 
that changes in the distribution and numbers of bearded seals may 
occur, but the continued occurrence of winter ice, and its record 
extent simultaneous with low summer ice years, indicate that a more 
thorough assessment of seal habitat and population responses is needed 
before the threat of extinction can be assessed with any level of 
certainty.
    Response: The above average ice cover in winter in the Bering Sea 
in 4 of the last 5 years is consistent with natural variability of the 
past 33 years. Just a few years prior to the recent high ice years, ice 
in the Bering Sea was at very low levels in 2002-2005, consistent with 
the expectation that variability from year to year will continue to be 
great, and will likely increase along with the expected warming trend. 
The recent years of above average Bering Sea ice extent are very 
unlikely to indicate a long-term reversal of the observed and projected 
declining trend. As the commenters noted, the length of the open water 
season is important for seasonally ice-associated species such as 
bearded seals. The open water season is determined by the dates of ice 
formation and melting. In 2012, despite above average winter ice extent 
in the Bering Sea, melt began over the Beaufort and Chukchi seas 12 and 
9 days earlier than normal (as compared to the averages for the period 
1979-2000), respectively (National Snow and Ice Data Center, 2012). 
Thus, the expectation that winter ice will continue to form in the 
future is insufficient grounds for concluding that the threat of 
habitat loss for bearded seals will not rise to the level of posing a 
risk of extinction.
    Comment 28: A commenter noted that NMFS's current MMPA stock 
assessment report and proposed draft update state that there are 
insufficient data to predict the effects of Arctic climate change on 
the Alaska bearded seal stock, suggesting that predicting future 
population declines based upon climate change effects is speculative.
    Response: NMFS's MMPA stock assessments for ice-associated seals 
need to be updated, which NMFS is in the process of doing to reflect 
new data and recent analyses from ESA status reviews.
    Comment 29: A commenter noted that elders and hunters interviewed 
in 2011 for a Kawerak research project on TEK of ice seals and walruses 
reported changes in ice and weather that complicated hunter access, but 
they also explained that walrus, bearded, and ringed seals were as 
healthy as ever. The commenter also noted that multiple hunters in 
these interviews also reported that marine mammals have shifted their 
migrations to match the timing of earlier ice break-ups. Individual 
observations regarding ice seal ecology, health, abundance, behavior, 
and habitat were also provided by a number of coastal Alaska residents, 
primarily Native hunters. Many of these comments, including those from 
the ISC, indicated that although the effects of a warming Arctic have 
been observed for a number of years, bearded seals appear healthy and 
abundant, and any significant decline does not appear to be 
sufficiently imminent to warrant listing the Beringia DPS of bearded 
seals as threatened under the ESA at this time.
    Response: TEK provides a relevant and important source of 
information on the ecology of bearded seals, and we have carefully 
reviewed the comments submitted from individuals with TEK on bearded 
seals and climate change. We do not find that these observations 
conflict with our conclusions. As we have noted in response to other 
related comments, the Beringia DPS is not presently in danger of 
extinction, but is likely to become endangered within the foreseeable 
future (threatened).
    Comment 30: One commenter argued that declines in benthic 
biodiversity due to ocean warming should be determined to be a threat 
to the Beringia DPS given the scientific evidence indicating benthic 
biomass in the northern Bering Sea and Chukchi Sea food webs is 
declining. Another commenter stated productivity in the region is 
expected to increase into the foreseeable future, which will likely 
lead to an increased forage base for bearded seals.
    Response: The difference in views of these commenters is consistent 
with our judgment that there is considerable scientific uncertainty 
regarding the likely biological responses to warming and ocean 
acidification.
    Comment 31: Some commenters argued that ocean acidification should 
be determined to be a significant threat, in particular when considered 
cumulatively with other climate change impacts. Another commenter 
disagreed, and felt that NMFS more clearly discussed the uncertainties 
associated with assessing the potential impacts of ocean acidification 
in the previous ESA listing determinations for ribbon and spotted 
seals.

[[Page 76761]]

    Response: As we discussed in the preamble to the proposed rule, the 
impact of ocean acidification on bearded seals is expected to be 
primarily through the loss of benthic calcifiers and lower trophic 
levels on which the species' prey depend, but the possibilities are 
complex. We concluded that because of the bearded seals' apparent 
dietary flexibility, the threat posed from ocean acidification is of 
less concern than the direct effects of sea ice degradation. The BRT 
members tended to rank the threat from ocean acidification as moderate, 
but also noted the very low degree of certainty about the nature and 
magnitude of potential effects on bearded seals (Tables 7 and 8; 
Cameron et al., 2010). However, the BRT did consider cumulative effects 
as part of the threats assessment scoring procedure, as evidenced by 
the fact that the overall score for each ESA section 4(a)(1) factor 
tended to be higher than the scores assigned for individual threats 
within each factor.
    Comment 32: The State of Alaska and several other commenters 
suggested that past warming periods were not adequately considered. 
They expressed the view that the survival of bearded seals during 
interglacial periods can be considered better evidence for population 
persistence than predictive models of ice condition for species 
extinction, and that this is a primary reason why listing of bearded 
seals as threatened is not warranted.
    Response: We are not aware of any available information on bearded 
seal adaptive responses during the interglacial periods. A fundamental 
difficulty in using pre-historic warm periods as analogs for the 
current climate disruption is that the rate of warming in the pre-
historic periods is poorly known. The species' resilience to those 
previous warming events, which may have been slower than the current 
warming, does not necessarily translate into present-day resilience. 
Moreover, there may be cumulative effects from climate warming and 
ocean acidification, or other human impacts, that combine to limit the 
species' resilience to the changes anticipated in the coming decades.

Comments on the Identification and Consideration of Other Threats

    Comment 33: A commenter suggested that terrestrial predators could 
become a greater threat to bearded seal pups if sea ice loss results in 
land-based or shorefast pupping.
    Response: This threat was acknowledged in the status review report 
(p. 140; Cameron et al., 2010) and was considered by the BRT in its 
threats analysis.
    Comment 34: A commenter noted that residents throughout the Bering 
Strait region regularly observe young bearded seals spending their 
summers in rivers feeding on fish and hauling out on river banks. This 
commenter observed that many of these young bearded seals survive and 
are observed into autumn; therefore, the risk from land-based predators 
may not be a threat to population viability.
    Response: The main concern about risk from land-based predators in 
a scenario of reduced ice stems from the vulnerability of very young 
bearded seals, such as maternally dependent pups and recently weaned 
young, that have not yet gained the strength and skills needed for 
evading predators. The young bearded seals described by the commenter, 
observed in summer and autumn, are likely at least a few months to a 
few years old, and able to fend for themselves.
    Comment 35: A few commenters expressed the opinion that existing 
regulatory mechanisms in the United States and elsewhere are not 
adequate to address the factors driving climate disruption (i.e., 
GHGs). One of these commenters suggested that U.S. agencies are either 
failing to implement or only partially implementing laws for GHGs, and 
that the continued failure of the U.S. Government and international 
community to implement effective and comprehensive GHG reduction 
measures places bearded seals at ever-increasing risk, where the worst-
case IPCC scenarios are becoming more likely.
    Response: While some progress is being made in addressing 
anthropogenic GHG emissions, we recognize in our analysis under ESA 
listing Factor D that current mechanisms do not effectively regulate 
the anthropogenic processes influencing global climate change and the 
associated changes to bearded seal habitat, and that this is 
contributing to the risks posed to bearded seals by these emissions. 
Further, we note that our analysis considered future emissions 
scenarios that did not involve dramatic and substantial reductions in 
GHG emissions.
    Comment 36: Some commenters suggested that NMFS should re-examine 
its conclusion that fisheries do not threaten bearded seals because a 
warming climate could lead to shifts in commercial fisheries that could 
affect the seal's food base. The ISC also expressed concern that the 
Bristol Bay region used to offer good seal hunting, but this is no 
longer the case and could be due to trawl fishing impacts on bearded 
seal foraging habitat.
    Response: The possible advent of new commercial fisheries, and the 
nature and magnitude of ecosystem responses, are speculative. Although 
there are possible risks, those should be mitigated through appropriate 
management of new fisheries. In U.S. waters, the intent to conduct such 
responsible management is evident in the Arctic Fishery Management Plan 
(North Pacific Fishery Management Council, 2009), which establishes a 
framework for sustainably managing Arctic marine resources.
    Comment 37: Some commenters stated that offshore oil and gas 
development should be determined to be a threat to bearded seals in 
part because there is no technology available to effectively contain or 
recover spilled oil in ice covered waters, and a large oil spill could 
be devastating to these seals. In addition one of these commenters 
emphasized that extensive offshore oil developments are currently 
underway within the range of the Beringia DPS, and additional drilling 
is proposed in the Beaufort and Chukchi seas. Other commenters stated 
that offshore oil and gas development, as currently regulated, does not 
pose a significant threat to bearded seals.
    Response: Although a large oil spill could cause substantial 
injury, mortality, and indirect impacts to seals in the area, the risks 
posed to persistence of the Beringia and Okhotsk DPSs as a whole are 
low and are possible to mitigate by preventive measures, at least 
relative to the much more pervasive risks from climate change and 
habitat loss.

Comments on the Status Determinations for the Beringia and Okhotsk DPSs

    Comment 38: The State of Alaska and several other commenters 
expressed the opinion that the Beringia DPS should not be listed 
because there are no scientific data demonstrating any observed past or 
present adverse impacts on their populations resulting from sea ice 
recession or other environmental changes attributed to climate change. 
The State of Alaska also extended this comment to the Okhotsk DPS. 
These commenters suggested that the determinations rely on the results 
of predictive models and speculation about future impacts, which they 
argued provide insufficient justification. Some of these commenters 
noted that in contrast, the polar bear ESA determination relied upon 
data for some populations that suggested a link between observed 
population declines or other population vital rates and

[[Page 76762]]

climate change. Further, the State of Alaska and another commenter 
suggested that climate model forecasts should be considered as 
hypotheses to be tested with data collected over time.
    Response: We have concluded that the best scientific and commercial 
data available, which are discussed in detail in the status review 
report and are summarized in this notice provide sufficient evidence 
that: (1) Bearded seals are strongly ice-associated, and the presence 
of suitable sea ice is considered a requirement for whelping and 
nursing young; (2) similarly, the molt is believed to be promoted by 
elevated skin temperatures that can only be achieved when seals are 
hauled out on suitable ice; (3) reductions in the extent and timing of 
sea ice cover are very likely to occur within the foreseeable future; 
(4) if suitable ice cover is absent from shallow feeding areas during 
times of peak whelping and nursing (April/May) or molting (May/June and 
sometimes through August), bearded seals would be forced to seek either 
sea ice habitat over deeper water (likely with poorer access to food) 
or coastal regions in the vicinity of haul-out sites on shore (likely 
with increased risks of disturbance, predation and competition); (5) 
both scenarios would require bearded seals to adapt to suboptimal 
conditions and exploit habitats to which they may not be well adapted, 
likely compromising their reproductions and survival rates; (6) the 
rates of environmental change will be rapid in the coming decades and 
may outpace possible adaptive responses; and (7) the rapid changes in 
sea ice habitat are likely to decrease the Beringia and Okhotsk DPSs to 
levels where they are in danger of extinction. Land boundaries will 
also limit the ability of the Okhotsk DPS to shift its range northward 
in response to deteriorating ice conditions. Regarding the climate 
model forecasts, the BRT analyses used simulations from six models of 
the Coupled Model Intercomparison Project Phase 3 (CMIP3) prepared for 
the IPCC's AR4, which represent the scientific consensus view on the 
causes and future of climate change and constitute the best scientific 
and commercial data available. Based on this information, and after 
considering the five ESA section 4(a)(1) factors, we have determined 
that the Beringia and Okhotsk DPSs are likely to become endangered 
within the foreseeable future throughout their ranges (i.e., threatened 
under the ESA).
    With regard to the comment that the climate model projections 
should be considered as hypotheses, with data collected over time to 
test the hypotheses, taking that approach in lieu of listing is not an 
option under the ESA. If the best scientific and commercial data 
available indicate that a species satisfies the definition of 
threatened or endangered, then NMFS must list it. In time, as new data 
become available, NMFS may de-list a species, change its listing 
status, or maintain its listing status. The determination here is based 
on the best scientific and commercial data that is presently available.
    Comment 39: A commenter suggested that if NMFS determines that the 
Beringia or Okhotsk DPS is threatened under the ESA, it should adopt 
the approach used by the FWS for species such as the walrus and 
designate them as candidate species, or alternatively list them as 
species of concern. This commenter expressed the opinion that listing 
the species as candidate species or species of concern would avoid 
unnecessary expenditure of resources while providing for the option to 
take appropriate action under the ESA if it becomes necessary.
    Response: Although NMFS and FWS define candidate species the same 
way in their joint regulations, the two agencies have slightly 
different interpretations of the term. FWS candidate species are those 
species for which FWS has sufficient information to support an ESA 
listing but for which issuance of a proposed rule is precluded due to 
higher priority listings (61 FR 64481; December 5, 1996). Therefore, 
FWS has already determined that its candidate species warrant listing 
under the ESA. In contrast, NMFS uses the term ``candidate species'' to 
refer to ``(1) species that are the subject of a petition to list and 
for which NMFS has determined that listing may be warranted, pursuant 
to section 4(b)(3)(A), and (2) species for which NMFS has determined, 
following a status review, that listing is warranted (whether or not 
they are the subject of a petition)'' (69 FR 19976; April 15, 2004). 
Regardless, once a species has been proposed for listing, section 
4(b)(6)(A) of the ESA does not allow us to issue a ``warranted but 
precluded'' finding. Such a finding is only permissible at the time of 
a 12-month finding (see section 4(b)(3)(B)), not a final rule. NMFS 
defines a ``species of concern'' as a species that is not being 
actively considered for listing under the ESA, but for which 
significant concerns or uncertainties regarding its biological status 
and/or threats exist (69 FR 19975; April 15, 2004). This is not the 
case for the Beringia DPS or the Okhotsk DPS.
    Comment 40: A commenter noted that the Alaska stock of bearded 
seals is not listed as depleted or strategic under the MMPA by NMFS, 
which they suggested indicates the absence of scientific data or 
consensus that these populations are currently threatened or in 
significant decline.
    Response: The absence of a depleted designation does not mean that 
a species is not threatened under the ESA. Similarly, the absence of a 
threatened designation does not mean a species or population stock is 
not depleted under the MMPA. Under both the ESA and the MMPA, these 
determinations are based on reviews of the best scientific and 
commercial data available, which is the process NMFS is undertaking 
here.
    The criteria for depleted or strategic status under the MMPA also 
differ from those for threatened or endangered species under the ESA. A 
species or population stock is considered depleted under the MMPA if it 
is determined through rulemaking to be below its optimum sustainable 
population (OSP) or if it is listed as threatened or endangered under 
the ESA. Section 3(9) of the MMPA (16 U.S.C. 1362(9)) defines OSP as 
``the number of animals which will result in the maximum productivity 
of the population or species, keeping in mind the carrying capacity of 
the habitat and the health of the ecosystem of which they form a 
constituent element.'' Under the MMPA, the term ``strategic stock'' 
means a marine mammal stock: (1) For which the level of human-caused 
mortality exceeds the maximum number of animals that may be removed 
(not including natural mortalities) while allowing the stock to reach 
or maintain its OSP; (2) based on the best available scientific 
information, is declining and likely to be listed as threatened under 
the ESA; or (3) is listed as threatened or endangered under the ESA. 
While we may consider MMPA stock assessment information, our 
determination as to whether the Beringia DPS of bearded seals meets the 
definition of a threatened or endangered species must be based on an 
assessment of the threats according to section 4 of the ESA.
    Comment 41: Some commenters, including Canada's DFO, expressed the 
view that listing the Beringia and Okhotsk DPSs as threatened is 
inconsistent with the IUCN's listing of bearded seals among species of 
``least concern.''
    Response: While we may review the assessment processes and 
conclusions of other expert organizations such as the IUCN, our 
determination as to whether the bearded seal DPSs meet the definition 
of threatened or endangered must be an independent one based on an 
assessment of the threats according

[[Page 76763]]

to section 4 of the ESA. After reviewing the best scientific and 
commercial data available, we have determined that Beringia and Okhotsk 
DPSs of bearded seals are likely to become endangered within the 
foreseeable future, and are accordingly listing them as threatened.

Comments Related to Subsistence Harvest of Bearded Seals

    Comment 42: Several comments received, including from the ISC, 
expressed concern that Alaska Natives who harvest ice seals, and all of 
the coastal communities, will likely be disproportionately affected by 
the listing of the Beringia DPS as threatened; and that the listing 
could cause hardship in the form of restrictions being placed on 
subsistence hunting of the seals, and could also result in other 
restrictions that could impair economic development. Some of these 
commenters expressed concern that the listing could also result in 
additional unfunded mandates, such as monitoring of the seal harvest.
    Response: As discussed above, the MMPA and ESA exempt subsistence 
takes by Alaska Natives from the marine mammal take prohibitions. 
Subsistence harvest of bearded seals by Alaska Natives appears 
sustainable and does not pose a threat to the populations. If the 
current situation changes, we will work under the co-management 
agreement with the ISC to find the best approach to ensure that 
sustainable subsistence harvest of these seals by Alaska Natives 
continues. Protection under the ESA does not automatically result in 
specific data collection and reporting requirements for the species. 
However, benefits of listing a species under the ESA can include 
enhanced funding and research opportunities that might address aspects 
of the harvest for a listed species. In addition, when a species is 
listed under the ESA, additional protections apply that promote the 
conservation of the species and therefore have the potential to benefit 
subsistence harvests. For example, section 7 of the ESA requires 
Federal agencies to ensure that the activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or to destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
action agency must enter into consultation with NMFS.
    Comment 43: The ISC expressed the view that, should the Beringia 
DPS be listed under the ESA, the Alaska Native community should have a 
strong role in determining the terms of subsequent management, 
including (1) representation on the recovery team, (2) the 
identification of critical habitat, (3) identification of criteria that 
must be met before any changes could be required in the harvest of the 
Beringia DPS of bearded seals or trade in their parts, (4) 
identification of research priorities, and (5) identification of a 
mechanism for distribution of funds available for research and 
management. Some other commenters similarly suggested that local Native 
subsistence users should be involved directly and have primary roles in 
any subsistence-related management or monitoring activities involving 
the Beringia DPS.
    Response: We recognize the importance of bearded seals to the 
Alaska Native community, as well as the expertise and particular 
knowledge the Alaska Native hunting communities possess regarding the 
species and its habitats. We are committed to meaningful involvement of 
stakeholders, including the Alaska Native Community, throughout any 
recovery planning process. Critical habitat will be proposed in 
subsequent rulemaking. We are soliciting comments on the identification 
of critical habitat (see DATES, ADDRESSES, and Public Comments 
Solicited for additional information). We encourage those with 
expertise and understanding of those physical or biological features 
which are essential to the conservation of the Beringia DPS of bearded 
seals and which may require special management to submit written 
comments.
    In the response to comment 13 above, we explained the criteria that 
must be satisfied for any regulation of subsistence harvest of bearded 
seals or trade in their parts to occur under the MMPA.
    We appreciate the ISC's interest in identifying research priorities 
and a mechanism to distribute funds for ice seal research and 
management. The ISC's Ice Seal Management Plan identifies its 
biological and subsistence research recommendations for ice seals. The 
ISC has provided this management plan to NMFS and we are taking the 
information into consideration in planning future research (the ISC has 
also made a copy of this plan available at our Web site; see 
ADDRESSES).

Comments on the ESA Process and Related Legal and Policy Issues

    Comment 44: NMFS received comments that we should consult directly 
with all of the Alaska Native communities that could potentially be 
affected by the proposed listings, hold public hearings in each of 
these communities, and consult directly with the ISC on the listings. 
The ISC stated that they protest the lack of consultation, request an 
explanation from NMFS, and require a commitment to be involved in all 
future aspects of the listing process prior to any future public 
announcement. Some commenters, including the ISC, also expressed 
concern that without holding hearings in more communities where a 
majority of the ice seal hunters live, these communities were not able 
to provide informed comments. In addition, one commenter stated there 
is confusion and frustration in the Alaska Native community regarding 
the listing process and harvest implications, and suggested that a 
better process is needed to ensure that all stakeholders have an 
opportunity to learn about and understand the proposed rules and their 
implications. We received several comments expressing concern that 
consultation with Alaska coastal communities and local leaders was 
inadequate. One commenter asserted that the Inuit of Alaska, Canada, 
Russia, and Greenland should all play a central consultative role in 
any decision that could affect them in relation to wildlife food 
sources and wildlife management regimes.
    Response: NMFS has coordinated with Alaska Native communities 
regarding management issues related to ice seals through co-management 
organizations, particularly the ISC. NMFS discussed the listing 
petitions with the ISC, and provided updates regarding the timeline for 
the bearded seal status review. Following publication of the proposed 
listing determination, we notified the ISC of the proposal and 
requested comments on the proposed rule. NMFS remains committed to 
working with Alaska Natives on conservation and subsistence use of 
bearded seals.
    We acknowledge the value of face-to-face meetings, and NMFS held 
three public meetings in: (1) Anchorage, Alaska, on March 7, 2011; (2) 
Barrow, Alaska, on March 22, 2011; and (3) Nome, Alaska, on April 5, 
2011. The logistical difficulties with holding additional hearings in 
other remote communities made it impractical to do so. We instead used 
other methods to provide opportunities for the public to submit 
comments both verbally and in writing. With assistance from the North 
Slope and Northwest Arctic boroughs, we provided teleconferencing 
access to the Barrow hearing from outlying communities in the North 
Slope Borough and from Kotzebue. The public hearings in Anchorage and 
Barrow were announced in the Federal Register on February 22, 2011 (76 
FR 9734), and the public hearing in Nome was announced

[[Page 76764]]

in the Federal Register on March 18, 2011 (76 FR 14883). The 
communities of Kaktovik, Wainwright, Point Lay, Point Hope, Nuiqsut, 
Anaktuvuk Pass, and Kotzebue participated in the Barrow hearing via 
teleconferencing. The public hearings were attended by approximately 88 
people. In response to comments received during the public comment 
period that indicated some tribes may wish to consult on the proposed 
rule, we also contacted potentially affected tribes by mail and offered 
them the opportunity to consult on the proposed action.
    We recognize the value of bearded seals to the Inuit of Canada, 
Alaska, Russia, and Greenland, and we have considered all of the 
comments received from interested parties in our final determination. 
Further, we note that E.O. 13175 outlines specific responsibilities of 
the Federal Government in matters affecting the interests of recognized 
tribes in the contiguous 48 states and in Alaska. We have met those 
obligations in the development of this final action.
    Comment 45: The State of Alaska commented that NMFS did not involve 
the State in a meaningful manner in either the development of the 
status review report or the proposed listing rule.
    Response: We sent a copy of the 90-day petition finding to ADFG and 
considered all of the comments and information submitted in response to 
this finding in the development of the status review report and the 
proposed rule. We also provided funding to ADFG to analyze information 
and samples collected from Alaska Native subsistence harvest of bearded 
seals to make these data available for inclusion in the status review 
report. Although reports on the results of this work were submitted 
after the status review report was completed and the proposed rule was 
published, we have considered this information in our final 
determination. During the initial public comment period, we sent a copy 
of the proposed rule to ADFG and the Alaska Department of Natural 
Resources (ADNR), and in those mailings noted the Internet availability 
of the proposed rule, status review report, and other related 
materials. In response to requests received, including from the State 
of Alaska, we extended the public comment period 45 days to provide 
additional time for submission of comments. We have thoroughly 
considered the comments submitted by the State of Alaska, and these 
comments are addressed in this final rule.
    Comment 46: Some commenters expressed the opinion that the ESA is 
not intended as a means to regulate potential impacts from climate 
change, or that the primary potential threats to bearded seals 
identified are the result of a global phenomenon that cannot be 
effectively addressed through the ESA, and thus the proposed listings 
will not provide a significant conservation benefit.
    Response: First, this rulemaking does not regulate impacts from 
climate change. Rather, it lists certain species as threatened, thereby 
establishing certain protections for them under the ESA. Second, 
section 4(b)(1)(A) of the ESA states that the Secretary shall make 
listing determinations solely on the basis of the best scientific and 
commercial data available after conducting a review of the status of 
the species and taking into account efforts to protect the species. 
Based on our review of the best available information on the status of 
the Beringia and Okhotsk DPSs, and efforts currently being made to 
protect these population units, we conclude that the Beringia and 
Okhotsk DPSs of bearded seals should be listed as threatened. Our 
supporting analysis is provided in this final rule and is supplemented 
by our responses to peer review and public comments. While listing does 
not have a direct impact on the loss of sea ice or the reduction of 
GHGs, it may indirectly enhance national and international cooperation 
and coordination of conservation efforts; enhance research programs; 
and encourage the development of mitigation measures that could help 
slow population declines. In addition, the development of a recovery 
plan will guide efforts intended to ensure the long-term survival and 
eventual recovery of the Beringia DPS.
    Comment 47: Several commenters, including the State of Alaska and 
the ISC, expressed the view that bearded seals and their habitat are 
adequately protected by existing international agreements, conservation 
programs, and laws such as the MMPA.
    Response: We recognize that there are existing regulatory 
mechanisms, such as the MMPA, that include protections for bearded 
seals. However, declining to list a species under the ESA because it is 
generally protected under other laws such as the MMPA would not be 
consistent with the ESA, which requires us to list a species based on 
specified factors and after considering conservation efforts being made 
to protect the species. As discussed in our analysis under ESA listing 
Factor A, a primary concern about the conservation status of the 
Beringia and Okhotsk DPSs stems from the likelihood that its sea ice 
habitat has been modified by the warming climate and that the 
scientific consensus projections are for continued and perhaps 
accelerated warming for the foreseeable future. While we acknowledge 
that there is some progress being made in addressing anthropogenic GHG 
emissions, we also recognize under listing Factor D that current 
mechanisms do not effectively regulate the anthropogenic factors that 
influence global climate change and the associated changes to the 
habitat of these bearded seal DPSs.
    Comment 48: The State of Alaska commented that NMFS's proposed 
listing of the Beringia DPS would interfere directly with Alaska's 
management of bearded seals and their habitat and would therefore harm 
Alaska's sovereign interests. The State also commented that NMFS's 
listing determination impedes Alaska's ability to implement its own 
laws by displacing State statutes and regulations addressing Alaska's 
wildlife and natural resources generally, and bearded seals 
specifically.
    Response: The ESA does not preclude the State from managing bearded 
seals or their habitat. We disagree that the listing of a species under 
the ESA would displace a specific state law or otherwise impede the 
State's ability to implement its own laws. We note that in 2009 NMFS 
and ADFG entered into a cooperative agreement for the conservation of 
threatened and endangered species pursuant to ESA section 6(c)(1).
    Comment 49: The State of Alaska commented that NMFS's consideration 
of the State of Alaska's formal conservation measures designed to 
improve the habitat and food supply of the Beringia DPS is extremely 
limited, and without any supporting analysis. Such limited 
consideration of the State's conservation programs fails to comply with 
NMFS's affirmative statutory obligation under ESA section 4(b) and 
NMFS's Policy for the Evaluation of Conservation Efforts.
    Response: The ESA provides that NMFS shall make listing 
determinations solely on the basis of the best scientific and 
commercial data available and after conducting a review of the status 
of the species and taking into account those efforts, if any, of any 
state or foreign nation to protect such species. NMFS has developed a 
specific Policy for Evaluation of Conservation Efforts (68 FR 15100; 
March 28, 2003) that identifies criteria for determining whether 
formalized conservation efforts that have yet to be implemented or to 
show effectiveness contribute to making

[[Page 76765]]

listing a species as threatened or endangered unnecessary.
    The State of Alaska asserts that it has implemented laws, 
regulations, and mitigation measures that are generally aimed at 
protecting ice seals and their prey. These measures (the most relevant 
of which are summarized below), however, are not specifically directed 
toward the conservation of the Beringia DPS of bearded seals and its 
ice habitat. For example, the mitigation measures referenced by the 
State aim to minimize the impact of oil and gas operations, not 
proactively or specifically to conserve the species. Moreover, the 
threats to bearded seals stem principally from habitat loss associated 
with global climate change, a threat the State could not single-
handedly mitigate. Under NMFS's policy, notwithstanding state 
conservation efforts, ``if the best available scientific and commercial 
data indicate that the species meets the definition of `endangered 
species' or `threatened species' on the day of the listing decision, 
then we must proceed with the appropriate rule-making activity under 
section 4 of the Act,'' i.e., list the species (68 FR 15115; March 28, 
2003).
    Finally, in the preamble to the proposed rule we described our 
consideration of the effects of existing programs on the extinctions 
risk of the Beringia and Okhotsk DPSs. In response to these comments 
from the State of Alaska, we add the following details about the State 
of Alaska's regulatory programs.
    Under the Submerged Lands Act, the State of Alaska has authority 
over the submerged lands and resources therein, within an area 
extending from the mean high tide line to 3 nautical miles offshore. 
The ADNR Division of Oil and Gas (DOG) develops mitigation measures and 
lessee advisories as part of its best interest finding process for 
area-wide oil and gas lease sales. The North Slope Area-wide and 
Beaufort Sea Area-wide lease sales have the potential to affect bearded 
seals. Mitigation measures and lessee advisories identified for these 
oil and gas lease sales include advisories that ESA listed and 
candidate species may occur in the lease sale area, that lessees shall 
comply with recommended protection measures for these species, and that 
lessees must also comply with MMPA provisions. Other provisions to 
protect certain concentrations of resources and to protect subsistence 
harvest could provide some incidental benefit to bearded seals.
    The Alaska Department of Environmental Conservation's (ADEC) 
mission involves the permitting and authorization of actions relating 
to oil and gas development, oil spill prevention and response, 
pollutant discharge, and other activities affecting Alaska's land and 
waters in the Arctic. State of Alaska solid waste management, water 
quality, wastewater, air quality, and vehicle emission standards are 
found in the Alaska Administrative Code (AAC) at 18 AAC 60, 18 AAC 70, 
18 AAC 72, 18 AAC 50, and 18 AAC 52, respectively. Oil spill 
contingency plans are required under Alaska Statute AS 46.04.030 and at 
18 AAC 75 for crude oil tankers, non-crude vessels and barges, oil and 
gas exploration facilities, oil flow lines and gathering lines, and for 
certain non-crude oil terminals and non-tank vessels. The ADEC 
contaminated sites cleanup process is governed by Alaska Statutes at 
Title 46 and regulations at 18 AAC 75 and 18 AAC 78.
    We acknowledge that the State of Alaska's regulatory regime may 
provide some general benefits to bearded seals and their habitat. 
However, these laws and regulations do not reduce or mitigate in any 
material way the principal threats posed to the Beringia DPS from the 
projected changes in sea ice habitat. As a result, they do not change 
our extinction risk assessment within this final listing determination.
    Comment 50: Several comments were received regarding the proposed 
4(d) rules requesting additional analyses to support the conclusion 
that they are necessary and advisable and petitioning NMFS to establish 
certain limitations on the application of those rules, such as 
excluding activities occurring outside the range of any of the listed 
DPSs of bearded seals.
    Response: For species listed as threatened, section 4(d) of the ESA 
requires the Secretary to issue such regulations as are deemed 
necessary and advisable to provide for the conservation of the species. 
Such 4(d) protective regulations may prohibit, with respect to 
threatened species, some or all of the acts that section 9(a) of the 
ESA prohibits with respect to endangered species. Both the section 9(a) 
prohibitions and section 4(d) regulations apply to all individuals, 
organizations, and agencies subject to U.S. jurisdiction. On December 
10, 2010 (75 FR 77496), we proposed to issue protective regulations for 
the Beringia and Okhotsk DPSs under section 4(d) of the ESA to include 
all of the prohibitions in section 9(a)(1) based on a preliminary 
finding that such regulations were necessary and advisable for the 
conservation of the species. As explained above, in light of public 
comments and upon further review, we have determined that such 
regulations are not necessary at this time. The Beringia and Okhotsk 
DPSs appear sufficiently abundant to withstand typical year-to-year 
variation and natural episodic perturbations in the near term. The 
principal threat to these DPSs of bearded seals is habitat alteration 
stemming from climate change within the foreseeable future. This is a 
long-term threat and the consequences for bearded seals will manifest 
themselves over the next several decades. Finally, bearded seals 
currently benefit from existing protections under the MMPA, and 
activities that may take listed species and involve a Federal action 
will still be subject to consultation under section 7(a)(2) of the ESA 
to ensure such actions will not jeopardize the continued existence of 
the species. We therefore conclude that it is unlikely that the 
proposed section 4(d) regulations would provide appreciable 
conservation benefits. As a result, we have concluded that the 4(d) 
regulations are not necessary at this time. Such regulations could be 
promulgated at some future time if warranted by new information.
    Comment 51: Comments were received that critical habitat is both 
prudent and determinable; other comments were received that critical 
habitat is not currently determinable and would require extensive 
additional study.
    Response: Section 4(a)(3) of the ESA requires that, to the maximum 
extent practicable and determinable, critical habitat be designated 
concurrently with the listing of a species. Critical habitat is not 
determinable when information sufficient to perform required analyses 
of the impacts of the designation is lacking or if the biological needs 
of the species are not sufficiently well known to permit identification 
of an area as critical habitat. Existing data are lacking in several 
areas necessary to support the designation of critical habitat, 
including identification and description of the physical and biological 
features essential to the conservation of the Beringia DPS, and 
economic data which would allow for consideration of the costs of 
designation. We have therefore determined that designating critical 
habitat for the Beringia DPS is prudent but not determinable at this 
time. We will designate critical habitat for the Beringia DPS in a 
subsequent rulemaking as provided under the ESA, and we are soliciting 
comments related to the designation (see DATES, ADDRESSES, and 
Information Solicited).
    Comment 52: Comments were received that it is unclear how future 
recovery planning, including

[[Page 76766]]

establishing accurate recovery and delisting criteria, can occur given 
the apparent lack of abundance data. Other comments were received 
expressing support for recovery planning for the Beringia DPS.
    Response: Section 4(f) of the ESA requires that NMFS develop 
recovery plans for ESA listed species, unless such a plan will not 
promote the conservation of the species. Section 4(f)(1)(A) of the ESA 
also states that in developing and implementing recovery plans, the 
Secretary shall, to the maximum extent practicable, ``give priority to 
those endangered species or threatened species, without regard to 
taxonomic classification, that are most likely to benefit from such 
plans.'' The range of the Okhotsk DPS of bearded seals occurs entirely 
under the jurisdiction of other countries. This DPS would therefore 
qualify for exemption from the ESA section 4(f) recovery planning 
process because the U.S. has little authority to implement actions 
necessary to recover foreign species. A recovery plan will be developed 
for the Beringia DPS of bearded seals provided the limitations in 
section 4(a)(1)(A) of the ESA do not apply. Future recovery planning 
efforts for the Beringia DPS will incorporate the best scientific and 
commercial data available regarding abundance at that time, and would 
identify data gaps that warrant further research.
    Comment 53: A number of comments stressed that the determination 
should be based on sound scientific data and analysis. Some comments 
suggested inappropriate factors such as political pressure from the 
climate change debate may have influenced our decision making.
    Response: We were petitioned to evaluate the status of the bearded 
seal under the ESA. Section 4(b)(1)(A) of the ESA requires us to make 
listing determinations solely on the basis of the best scientific and 
commercial data available. Consistent with this requirement, in 
reaching our final listing determination, we considered the status 
review report prepared by the BRT, information received through public 
and peer review comments, and efforts being made to protect the 
species. This information is summarized in this final rule.
    Comment 54: A commenter expressed the opinion that to provide a 
meaningful process in which interested parties could review and comment 
on the special peer review comments, NMFS should have made the original 
comment letters available (rather than NMFS's ``summary and 
interpretation of those comments'') and opened more than a 30-day 
comment period.
    Response: On April 6, 2012, we announced in the Federal Register 
the availability of a peer review report that consolidated the comments 
received from special peer review of the bearded seal status review 
report (77 FR 20774). We issued a news release to ensure that the 
public was made aware of this comment period. The comment period was 
limited to 30 days in consideration of the statutory deadline requiring 
a prompt final listing determination. We did not receive any specific 
requests to extend the comment period. The peer review report simply 
consolidated the comments received from the special peer reviewers to 
facilitate public review--the report did not provide our interpretation 
of those comments.

Comments on the Consequences of the Proposed Listing Rule

    Comment 55: Several commenters, including the State of Alaska and 
the ISC, expressed concern that the ultimate effect of the listings 
will be additional regulatory burden and increased economic and other 
human impacts without significant conservation benefit. Some of these 
commenters noted that the proposed listing would affect an area of 
national significance because of its importance for domestic oil and 
gas development. The State of Alaska specifically expressed concern 
that the proposed action will cause substantial injury to Alaska's 
economic interests including those of northern coastal municipal 
governments. The State expressed the view, for example, that the 
listing will deter or delay activities such as oil and gas exploration 
and development, and shipping operations, which could reduce State 
royalties and revenue. One commenter also expressed concern that the 
listings could also potentially cause resources and efforts to be 
distracted away from the conservation of populations at greater risk.
    Response: Section 4(b)(1)(A) of the ESA states that the Secretary 
shall make listing determinations based solely on the best scientific 
and commercial data available, after conducting a status review of the 
species and taking into account efforts to protect the species. The 
regulations implementing the ESA at 50 CFR 424.11(b), consistent with 
case law interpreting the ESA and its legislative history, state that 
the listing determination will be made without reference to possible 
economic or other impacts of such determination. Therefore, we cannot 
consider such potential consequences in our final determination. 
However, we will consider economic impacts for the designation of 
critical habitat. We also note that such activities have been occurring 
despite the presence of several ESA listed whale species in the areas.

Additional Comments

    Comment 56: Two commenters suggested that the abundance estimate 
for the Chukchi Sea likely underestimates the actual population size 
due to several factors including that it does not appear to account for 
any seals that may occur in the central Chukchi Sea. These commenters 
noted that the abundance estimate for the Beaufort Sea also likely 
underestimates the actual population size and it likely undergoes 
significant inter-annual variation.
    Response: The numbers of bearded seals in the Chukchi and Beaufort 
seas (i.e., the number that breed there rather than migrating there 
seasonally after breeding in the Bering Sea) are very poorly 
documented. Our estimate of 27,000 for the Chukchi Sea included an 
assumption that the western Chukchi Sea along the Russian coast has 
similar densities to the eastern Chukchi Sea. A relatively small area 
of the north-central Chukchi is, as the reviewer noted, unaccounted for 
in this estimate. The bearded seal densities in the survey stratum 
adjacent to this area were very low. Because it has not been documented 
whether bearded seals occur in that north-central area, there was no 
sound basis for computing an estimate. If the adjoining survey stratum 
densities (0.001-0.05 seals/km\2\) were used as an estimate, only about 
50 to 2,250 additional seals would be included. This is well within the 
imprecision of the overall estimate, and not different enough to affect 
the threats analysis or risk assessment for the Beringia DPS.
    Comment 57: The State of Alaska and another commenter noted that 
there is a high degree of uncertainty associated with the bearded seal 
subspecies identified that should be more explicitly acknowledged, and 
they provided a number of references to support this comment.
    Response: Although the concept of a subspecies as an identifiable 
taxon has been questioned by some evolutionary biologists, and has been 
applied inconsistently by taxonomists with respect to the nature and 
amount of differentiation required for subspecies designation, the 
concept remains in wide use and there is clearly no consensus to 
abandon it. In the case of bearded seals, the two subspecies 
designations are widely recognized (for

[[Page 76767]]

details see Cameron et al., 2010). As was discussed in the preamble to 
the proposed rule, and considered in more detail in the status review 
report, the geographic distribution of these two subspecies is not 
separated by conspicuous gaps, and there are regions of intergrading 
generally described as somewhere along the northern Russian and central 
Canadian coasts. The validity of the division into subspecies has been 
questioned, though recent research on skull morphology and genetics 
tends to support their continued recognition. Despite doubts expressed 
by some about the veracity of dividing E. barbatus into two subspecies, 
the BRT concluded, and NMFS concurred, that the evidence for retaining 
the subspecies is stronger than any evidence for combining them.
    Comment 58: The Marine Mammal Commission recommended that NMFS 
develop a research plan to address the major uncertainties and 
information gaps identified in the status review report, and strengthen 
collaborative efforts among range nations to facilitate research and 
management to assess the status and trends of bearded seal populations 
throughout the species' range, and identify protective measures where 
necessary. Canada's DFO noted that they remain open to exploring 
potential areas for cooperation for improving mutual understanding of 
bearded seal populations. The Commission and another commenter 
expressed the view that NMFS also needs to prioritize funding to 
collect data on bearded seal population size and trends and many other 
aspects of the seal's biology which are currently poorly understood.
    Response: We agree that additional research is needed to help 
resolve areas of uncertainty and to add to the ecological knowledge of 
this species. We look forward to working with our partners and 
stakeholders in the conservation and recovery of bearded seals, 
including obtaining needed research to fill in knowledge gaps.

Classification

National Environmental Policy Act (NEPA)

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 657 F. 2d 829 (6th Cir. 
1981), we have concluded that NEPA does not apply to ESA listing 
actions. (See NOAA Administrative Order 216-6.)

Executive Order (E.O.) 12866, Regulatory Flexibility Act, and Paperwork 
Reduction Act

    Under the plain language of the ESA and as noted in the Conference 
Report on the 1982 amendments to the ESA, economic impacts cannot be 
considered when assessing the status of a species. Therefore, the 
economic analyses required by the Regulatory Flexibility Act are not 
applicable to the listing process. In addition, this rule is exempt 
from review under E.O. 12866. This rule does not contain a collection 
of information requirement for the purposes of the Paperwork Reduction 
Act.

E.O. 13132, Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
directives for consultation in situations where a regulation will 
preempt state law or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this rule.

E.O. 13175, Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal Government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian Tribes and the application of fiduciary standards of due care 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. E.O. 13175--Consultation and Coordination with Indian 
Tribal Governments--outlines the responsibilities of the Federal 
Government in matters affecting tribal interests. Section 161 of Public 
Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 
108-447 (118 Stat. 3267), directs all Federal agencies to consult with 
Alaska Native corporations on the same basis as Indian tribes under 
E.O. 13175.
    NMFS has coordinated with Alaska Native communities regarding 
management issues related to ice seals through co-management 
organizations, particularly the ISC. NMFS discussed the listing 
petition with the ISC and provided updates regarding the timeline for 
the bearded seal status review. Following publication of the proposed 
listing determination, we notified the ISC of the proposal and 
requested comments on the proposed rule.
    We fully considered all of the comments received from Alaska Native 
organizations on the proposed rule and have addressed those comments in 
this final rule. In response to comments received during the public 
comment period that indicated some tribes may wish to consult on the 
proposed rule, we contacted potentially affected tribes by mail and 
offered them the opportunity to consult on the proposed action and 
discuss any concerns they may have. No requests for consultation were 
received in response to this mailing.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://alaskafisheries.noaa.gov and is 
available upon request from the NMFS office in Juneau, Alaska (see 
ADDRESSES).

List of Subjects in 50 CFR Part 223

    Endangered and threatened species, Exports, Imports, 
Transportation.

    Dated: December 20, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 223 is amended 
as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 223 continues to read as follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).


0
2. In Sec.  223.102, in the table, add paragraphs (a)(7) and (a)(8) to 
read as follows:

Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

[[Page 76768]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species \1\
--------------------------------------------------------------         Where listed          Citation(s) for  listing  Citation(s) for  critical habitat
             Common name                  Scientific name                                         determination(s)               designation(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
(a) * * *
(7) Bearded seal, Beringia DPS......  Erignathus barbatus      The Beringia DPS of the       [INSERT FR CITATION; 12/  NA
                                       nauticus.                bearded seal includes all     28/12].
                                                                bearded seals from breeding
                                                                populations in the Arctic
                                                                Ocean and adjacent seas in
                                                                the Pacific Ocean between
                                                                145[deg] E. Long.
                                                                (Novosibirskiye) and
                                                                130[deg] W. Long., except
                                                                west of 157[deg] E. Long or
                                                                west of the Kamchatka
                                                                Peninsula, where bearded
                                                                seals from breeding
                                                                populations of the Okhotsk
                                                                DPS are listed as
                                                                threatened under Sec.
                                                                223.102(a)(8).
(8) Bearded seal, Okhotsk DPS.......  Erignathus barbatus      The Okhotsk DPS of the        [INSERT FR CITATION; 12/  NA
                                       nauticus.                bearded seal includes all     28/12].
                                                                bearded seals from breeding
                                                                populations of bearded
                                                                seals west of 157[deg] E.
                                                                Long. or west of the
                                                                Kamchatka Peninsula in the
                                                                Pacific Ocean.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement; see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement; see 56 FR 58612, November 20, 1991).

* * * * *
[FR Doc. 2012-31068 Filed 12-21-12; 4:15 p.m.]
BILLING CODE 3510-22-P