[Federal Register Volume 86, Number 5 (Friday, January 8, 2021)]
[Proposed Rules]
[Pages 1452-1474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29008]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No.: 201228-0357]
RIN 0648-BC56


Endangered and Threatened Species; Designation of Critical 
Habitat for the Arctic Subspecies of the Ringed Seal

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

ACTION: Revised proposed rule; reopening of comment period.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), announce 
revisions to our December 9, 2014, proposed designation of critical 
habitat for the Arctic subspecies of the ringed seal (Pusa hispida 
hispida) under the Endangered Species Act (ESA). The revised proposed 
designation comprises an area of marine habitat in the Bering, Chukchi, 
and Beaufort seas. Based on consideration of national security impacts, 
we also propose to exclude a particular area north of the Beaufort Sea 
shelf from the designation. We seek comments on all aspects of the 
revised proposed critical habitat designation and will consider 
information received before issuing a final designation.

DATES: Comments must be received by March 9, 2021. Public hearings on 
the revised proposed rule will be held in Alaska. The dates and times 
of these hearings will be provided in a subsequent Federal Register 
notice.

ADDRESSES: You may submit data, information, or comments on this 
document, identified by NOAA-NMFS-2013-0114, and on the associated 
Draft Impact Analysis Report (i.e., report titled ``Draft RIR/ESA 
Section 4(b)(2) Preparatory Assessment/IRFA of Critical Habitat 
Designation for the Arctic Ringed Seal'') for the revised proposed rule 
by either of the following methods:
     Electronic Submission: Submit all electronic comments via 
the Federal eRulemaking Portal. Go to www.regulations.gov/

[[Page 1453]]

#!docketDetail;D=NOAA-NMFS-2013-0114, click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Submit written comments to Jon Kurland, Assistant 
Regional Administrator for Protected Resources, Alaska Region NMFS, 
Attn: James Bruschi, P.O. Box 21668, Juneau, AK 99082-1668.
    Instructions: NMFS may not consider comments sent by any other 
method, to any other address or individual, or received after the end 
of the comment period. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. NMFS will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous).
    Electronic copies of the Draft Impact Analysis Report for this 
revised proposed rule and a complete list of references cited in this 
revised proposed rule are available on the Federal eRulemaking Portal 
at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0114.

FOR FURTHER INFORMATION CONTACT: Tammy Olson, NMFS Alaska Region, (907) 
271-5006; Jon Kurland, NMFS Alaska Region, (907) 586-7638; or Heather 
Austin, NMFS Office of Protected Resources, (301) 427-8422.

SUPPLEMENTARY INFORMATION: Section 3(5)(A) of the ESA defines critical 
habitat as (1) the specific areas within the geographical area occupied 
by the species, at the time it is listed, on which are found those 
physical or biological features essential to the conservation of the 
species and which may require special management considerations or 
protection; and (2) specific areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
by the Secretary of Commerce (Secretary) that such areas are essential 
for the conservation of the species (16 U.S.C. 1532(5)(A)). 
Conservation is defined in section 3(3) of the ESA as the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this Act are no longer necessary (16 U.S.C. 
1532(3)). Section 3(5)(C) of the ESA provides that, except in those 
circumstances determined by the Secretary, critical habitat shall not 
include the entire geographical area which can be occupied by the 
threatened or endangered species. Also, by regulation, critical habitat 
shall not be designated within foreign countries or in other areas 
outside U.S. jurisdiction (50 CFR 424.12(g)).
    Section 4(b)(2) of the ESA requires the Secretary to designate 
critical habitat for threatened and endangered species on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
This section also grants the Secretary discretion to exclude any area 
from critical habitat if he determines the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat. However, the Secretary may not exclude areas if such exclusion 
will result in the extinction of the species (16 U.S.C. 1533(b)(2)).
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to destroy or adversely modify that habitat 
(16 U.S.C. 1536(a)(2)). This requirement is additional to the section 
7(a)(2) requirement that Federal agencies ensure that their actions are 
not likely to jeopardize the continued existence of ESA-listed species. 
Specifying the geographic location of critical habitat also facilitates 
implementation of section 7(a)(1) of the ESA by identifying areas where 
Federal agencies can focus their conservation programs and use their 
authorities to further the purposes of the ESA. See 16 U.S.C. 
1536(a)(1). Critical habitat requirements do not apply to citizens 
engaged in actions on private land that do not involve a Federal 
agency.
    This revised proposed rule describes our revised proposed 
designation of critical habitat for the Arctic ringed seal, including 
supporting information on Arctic ringed seal distribution and habitat 
use, and the methods used to develop the revised proposed designation. 
The Arctic ringed seal is listed with the scientific name Phoca (=Pusa) 
hispida hispida. In this revised proposed rule, we use the genus name 
Pusa to reflect currently accepted use (e.g., Committee on Taxonomy 
(Society for Marine Mammalogy) 2019, Integrated Taxonomic Information 
System (online database) 2019).

Background

    On December 28, 2012, we published a final rule to list the Arctic 
ringed seal as threatened under the ESA (77 FR 76706). Section 
4(b)(6)(C) of the ESA requires the Secretary to designate critical 
habitat concurrently with making a determination to list a species as 
threatened or endangered unless it is not determinable at that time, in 
which case the Secretary may extend the deadline for this designation 
by one year. At the time of listing, we announced our intention to 
designate critical habitat for the Arctic ringed seal in a separate 
rulemaking, as its critical habitat was not then determinable. 
Concurrently, we solicited information to assist us in (1) identifying 
the physical or biological features essential to the conservation of 
Arctic ringed seals, and (2) assessing the economic consequences of 
designating critical habitat for this species. Subsequently we 
researched, reviewed, and compiled the best scientific data available 
to develop a critical habitat proposal for the Arctic ringed seal.
    On December 3, 2014, we published a proposed rule to designate 
critical habitat for the Arctic ringed seal under the ESA (79 FR 
71714). Due to a clerical error, that document contained mistakes, and 
we therefore published a corrected proposed rule on December 9, 2014 
(79 FR 73010). We requested public comment on this proposed designation 
through March 9, 2015. In response to comments, we extended the public 
comment period through March 31, 2015 (80 FR 5498, February 2, 2015). 
We held five public hearings in Alaska on the proposed rule (80 FR 
1618, January 13, 2015; 80 FR 5498, February 2, 2015).
    Subsequently, on March 17, 2016, the listing of Arctic ringed seals 
as a threatened species was vacated by the U.S. District Court for the 
District of Alaska (Alaska Oil & Gas Ass'n v. Nat'l Marine Fisheries 
Serv., Case Nos. 4:14-cv-29-RRB, 4:15-cv-2-RRB, 4:15-cv-5-RRB, 2016 WL 
1125744 (D. Alaska Mar. 17, 2016)). This decision was reversed by the 
U.S. Court of Appeals for the Ninth Circuit on February 12, 2018 
(Alaska Oil & Gas Ass'n v. Ross, 722 F. App'x 666 (9th Cir. 2018)), and 
the listing was reinstated on May 15, 2018.
    On June 13, 2019, the Center for Biological Diversity filed a 
complaint in the U.S. District Court for the District of Alaska 
alleging that NMFS had failed to timely designate critical habitat for 
the Arctic ringed seal. Under a court-approved stipulated settlement 
agreement between the parties (which was subsequently amended to extend 
the dates specified in the original order), NMFS agreed to submit a 
proposed determination concerning the designation of critical habitat 
for Arctic ringed seals to the Federal Register by

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March 15, 2021, and (to the extent a proposed rule has been published) 
a final rule by March 15, 2022. NMFS decided to issue this revised 
proposed rule rather than proceeding directly with a final rule because 
we are also considering the designation of critical habitat for the 
Beringia distinct population segment (DPS) of the Pacific bearded seal 
subspecies Erignathus barbatus nauticus (for which no proposed rule has 
been issued), and we expect that stakeholders will want to comment on 
both proposals simultaneously, because both species are ice-dependent 
and their habitats overlap. A revised proposed rule also affords an 
opportunity for additional public comment to help ensure that our 
decision is based on the best scientific data available, considering 
that several years have elapsed since our December 9, 2014, proposal. 
We are therefore issuing this revised proposed rule in tandem with a 
proposed rule for bearded seal critical habitat.

Summary of Revisions to Proposed Critical Habitat

    In this revised proposed critical habitat designation, we 
incorporate additional relevant information that became available since 
the publication of our 2014 proposed rule. Based on the best scientific 
data currently available, our understanding of the physical and 
biological features essential to the conservation of the Arctic ringed 
seal and the specific areas where those features occur has not changed 
markedly since 2014. However, in the preamble of this revised proposed 
rule we provide updated information in the Description and Natural 
History section about the Arctic ringed seal's distribution and habitat 
use, and we include more details in the Specific Areas Containing the 
Essential Features section regarding the information considered in 
determining the areas that meet the definition of critical habitat for 
this species. After updating and evaluating the best scientific 
information available, we have also made the following changes from the 
December 9, 2014, proposed rule (79 FR 73010):
    (1) We refined our descriptions of the essential features 
associated with sea ice, including the essential feature of sea ice 
suitable for the formation and maintenance of birth lairs. We now refer 
to ``snow-covered sea ice'' to underscore that this essential feature 
consists of a combination of sea ice and the on-ice snow layer within 
which subnivean birth lairs (snow caves) are constructed. In 
recognition of the limits of the data available on snow drift depths 
sufficient for these subnivean lairs, we clarify that such snow drifts 
are ``typically'' at least 54 centimeters (cm) deep.
    (2) We modified the southern boundary of the proposed critical 
habitat designation to more accurately reflect where one or more of the 
essential features occur. Consistent with our 2014 proposed rule, in 
this revised proposed rule we primarily determined this boundary by 
identifying the southern extent of snow-covered sea ice essential for 
birth lairs. Birth lairs are used to shelter pups during whelping and 
nursing. We propose to define this essential feature as areas of 
seasonal landfast (shorefast) ice and dense, stable pack ice, excluding 
any bottom-fast ice extending seaward from the coastline (typically in 
waters less than 2 meters (m) deep), that have undergone deformation 
(i.e., rafting, ridging, or hummocking due to wind and ocean currents) 
and contain snowdrifts of sufficient depth, typically at least 54 cm 
deep (see Physical and Biological Features Essential to the 
Conservation of the Species section). We relied on the birth lair 
essential feature to determine the southern boundary of this proposed 
critical habitat designation because peak molting (for adults) takes 
place later in the spring as sea ice retreats northward, and also 
because the annual extent and timing of sea ice is especially variable 
in the southern periphery of the Arctic ringed seal's habitat in the 
Bering Sea (Boveng et al. 2009, Stabeno et al. 2012b, Frey et al. 
2015). Consequently, we concluded that the southern extent of sea ice 
suitable for birth lairs also provides the best estimate of the 
southern extent of sea ice suitable for basking and molting.
    As discussed in detail below, because existing information is 
limited on whelping locations and the distribution of Arctic ringed 
seals in the Bering Sea during spring, a precise southern boundary for 
the critical habitat cannot be determined based on such information. 
Available estimates of snow-depth on Arctic sea ice derived from 
satellite remote-sensing data are spatially and temporally limited and 
are subject to a variety of sources of uncertainty (Spreen and Kern 
2017, Sturm and Massom 2017, Webster et al. 2018). Further, there is a 
high degree of variability evident in snow depths on sea ice and the 
spatial distribution of those depths within and between years (Sturm 
and Massom 2017, Webster et al. 2018). We therefore turned to Sea Ice 
Index data maintained by the National Snow and Ice Data Center (NSIDC) 
(Fetterer et al. 2017, Version 3.0; accessed November 2019) for 
information on the estimated monthly position of the ice edge in the 
Bering Sea during spring based on a time series of satellite records.
    In our 2014 proposed rule, we based the southern boundary of 
proposed critical habitat on the estimated median ice edge position in 
April, which is the peak month for Arctic ringed seal whelping (Kelly 
et al. 2010a). We interpreted the limited information available at that 
time on whelping locations and the spring distribution of Arctic ringed 
seals in the Bering Sea as suggesting that snow-covered sea ice 
essential for birth lairs extends to some point south of St. Matthew 
Island and Nunivak Island. After verifying that the estimated position 
of the April median ice edge contour appeared generally consistent with 
this information, we defined the southern boundary in that proposed 
rule based on a simplified version of this contour.
    However, while developing this revised proposed rule, we recognized 
that suitable snow-covered sea ice would need to persist for several 
weeks for pups to be sheltered and nursed in birth lairs. We therefore 
considered whether the position of the ice edge during May (rather than 
April) would more accurately represent the southern extent of where 
snow-covered sea ice persists sufficiently to provide suitable 
conditions for pup development within birth lairs (and as noted above, 
potentially for basking and molting). We examined the estimated 
position of the May median ice edge for both the 30-year 1981 to 2010 
reference period currently used by NSIDC for the Sea Ice Index 
(Fetterer et al. 2017, Version 3.0; accessed November 2019), and for 
the more recent 30-year period of 1990 to 2019, which was calculated 
using methods and data types similar to those used for the Sea Ice 
Index. We note that the two most recent years included in the 1990 to 
2019 period had record low ice extent in the Bering Sea (Stabeno and 
Bell 2019). The May median ice edge from the Sea Ice Index is located 
about 22 kilometers (km) southwest of St. Matthew Island and about 85 
km north of Nunivak Island; and for the more recent 1990 to 2019 
period, is generally similar to that of the Sea Ice Index, except that 
east of St. Matthew Island the ice edge for the more recent period has 
a more variable shape. As a result, although the median ice edge for 
both 30-year periods reaches the coast at a similar location south of 
Hooper Bay, between that location and St. Matthew Island, the median 
ice edge for the more recent period is primarily located north of 
Hooper Bay.
    After our 2014 proposed rule was issued, additional data also 
became

[[Page 1455]]

available on the spring distribution of ice-associated seals (including 
ringed seals) in the Bering Sea from aerial surveys conducted in 2012 
and 2013 (NMFS Marine Mammal Laboratory, unpublished data). We used 
these data to inform our determination of the southern boundary in this 
revised proposed rule. Overall, ringed seal observations appeared to be 
more frequent along transect segments flown north of St. Matthew and 
Nunivak Islands than those flown farther south (i.e., habitat we 
proposed for designation in 2014 based on the estimated median position 
of the ice edge in April). Although relatively few ringed seal pups 
were documented during these surveys (likely reflecting, at least in 
part, that pups were sheltered in subnivean lairs and thus would not 
have been detected), the majority of the limited detections of pups 
were located in Norton Sound, and few observations of pups were 
documented south of St. Matthew Island and Nunivak Islands.
    Taken as a whole, we concluded that the data currently available on 
whelping locations and the spring distribution of ringed seals in the 
Bering Sea suggest that information on the estimated position of the 
ice edge for May provides the best estimate of the southern extent of 
snow-covered sea ice that persists sufficiently to provide suitable 
conditions for pup development within birth lairs. As we explained 
above, we also concluded that this southern boundary most accurately 
defines the southern extent of sea ice essential for basking and 
molting. Therefore, in this revised proposed rule we use information on 
the position of the ice edge for May, rather than for April, to 
delineate the southern boundary of Arctic ringed seal critical habitat. 
Specifically, given the reduction in sea ice east of St. Matthew Island 
between the reference period used for the Sea Ice Index and the more 
recent 30-year period described above, we elected to delineate the 
southern boundary to reflect the estimated position of the May median 
ice edge for the more recent 1990 to 2019 period. This revised proposed 
southern boundary is located roughly 125 km (western portion) to 325 km 
(eastern portion) north of the southern boundary we proposed in 2014.
    In our 2014 proposed rule, we referred to the estimated position of 
the April median ice edge for the 22-year 1979 to 2000 reference period 
previously used (from 2002 through June 2013) for the Sea Ice Index. At 
that time, we reasoned that several of the more recent years included 
in the 1981 to 2010 reference period had above-average ice extent in 
the Bering Sea (e.g., Stabeno et al. 2012a), and we inferred that use 
of these data would have resulted in the inclusion of areas (farther 
south and east in the Bering Sea) that are unlikely to contain the sea 
ice essential features on a consistent basis in more than a few 
scattered portions of those areas. However, upon further review, we 
concluded that the 30-year periods considered in this revised proposed 
rule provide a more appropriate basis for our analysis, in that more 
recent data on sea ice conditions are included and the median 
calculated over a lengthened 30-year period of record, which is 
commonly used in climatologies, incorporates more of the year-to-year 
variation in the sea ice extent.
    (3) We modified the textual description of the shoreward boundary 
of the proposed critical habitat designation. In our 2014 proposed 
rule, we described the shoreward boundary as the ``coast line'' of 
Alaska as that term has been defined in the Submerged Lands Act (``the 
line of ordinary low water along that portion of the coast which is in 
direct contact with the open sea and the line marking the seaward limit 
of inland waters'') (43 U.S.C. 1301(c)). Upon further review, we 
concluded that delineating the shoreward boundary on this basis results 
in the omission of some smaller bays and shallow nearshore waters that 
contain the essential physical and biological features of habitat for 
Arctic ringed seals. Given the occurrence of Arctic ringed seal primary 
prey in shallow nearshore waters and evidence of ringed seal use of 
such waters during the open-water foraging period, in this revised 
proposed rule we delineate the shoreward boundary as the line that 
marks mean lower low water (MLLW). This proposed critical habitat does 
not extend into tidally-influenced channels of tributary waters of the 
Bering, Chukchi, or Beaufort seas.
    (4) We revised our analysis of the impacts of designating the 
proposed critical habitat for the Arctic ringed seal to reflect the 
revisions summarized above, and to incorporate the best data currently 
available. This analysis is summarized in this revised proposed rule 
and described in detail in the associated Draft Impact Analysis Report.
    (5) In response to information submitted by the U.S. Navy, we 
propose to exclude one particular area north of the Beaufort Sea shelf 
from the designation based on national security impacts because the 
benefits of exclusion outweigh the benefits of inclusion of this area.

Description and Natural History

    The Arctic ringed seal is the smallest of the northern seals, with 
typical adult body size of 1.5 m in length and 70 kilograms in weight 
(Kelly et al. 2010a). Age of sexual maturity for female Arctic ringed 
seals generally ranges from 3 to 7 years (Smith 1987, Holst et al. 
1999, Quakenbush et al. 2011, Crawford et al. 2015), and for males 
ranges from 5 to 7 years (Frost and Lowry 1981), but with geographic 
and temporal variability depending on animal condition and population 
structure (Kelly et al. 2010a). The average life span of ringed seals 
is about 15 to 28 years (Kelly et al. 2010a).

Distribution and Habitat Use

    Arctic ringed seals are circumpolar and are found throughout ice-
covered waters of the Arctic Ocean Basin and southward into adjacent 
seas, including the Bering, Chukchi, and Beaufort seas off Alaska's 
coast (Frost and Lowry 1981, Frost 1985, Kelly 1988, Rice 1998). Ringed 
seals are adapted to remaining in heavily ice-covered areas throughout 
the fall, winter, and spring by using the stout claws on their 
foreflippers to maintain breathing holes in the ice. Arctic ringed 
seals are highly associated with sea ice, and use the ice as a 
substrate for resting, whelping (birthing), nursing, and molting 
(shedding and regrowing hair and outer skin layers). The seasonality of 
ice cover strongly influences Arctic ringed seal movements, foraging, 
reproductive behavior, and vulnerability to predation. Kelly et al. 
(2010b) referred to three periods important to Arctic ringed seal 
seasonal movements and habitat use: The winter through early spring 
``subnivean period'' when the seals rest primarily in subnivean lairs 
(snow caves on top of the ice); the late spring to early summer 
``basking period'' between abandonment of the lairs and melting of the 
seasonal sea ice when the seals undergo their annual molt; and the 
open-water ``foraging period'' from ice break-up to freeze-up in the 
fall, when feeding occurs most intensively.
    Subnivean Period: With the onset of freeze-up in the fall, many 
Arctic ringed seals that summer in the Beaufort and Chukchi seas are 
thought to move generally southward with the advancing ice, while 
others remain in these waters over winter (Frost 1985). Adult movements 
during the subnivean period have been reported as typically limited, 
especially where ice cover is extensive (Kelly and Quakenbush 1990, 
Harwood et al. 2007, Kelly et al. 2010b, Crawford et al. 2012b, Luque 
et al. 2014), likely due to maintenance of breathing holes and social 
behavior during the breeding

[[Page 1456]]

season (Kelly et al. 2010b). However, some adult males have been found 
to make long-distance movements in the Chukchi and Beaufort seas during 
January to March (Quakenbush et al. 2019). In contrast, subadult Arctic 
ringed seals have been observed to travel relatively long distances in 
winter to near the ice edge in the Bering Sea (Crawford et al. 2012a, 
2019).
    During freeze-up, ringed seals surface to breathe in the remaining 
open water of cracks and leads, and as these openings in the ice freeze 
over, the seals open breathing holes that they maintain as the ice 
thickens by abrading the ice with the claws on their foreflippers 
(Smith and Stirling 1975). Ringed seals excavate lairs in snowdrifts 
over their breathing holes where snow depth is sufficient (e.g., 
McLaren 1958, Smith and Stirling 1975, Smith 1987). These subnivean 
lairs are occupied for resting, whelping, and nursing pups in areas of 
annual landfast (shorefast) ice (McLaren 1958, Burns 1970, Kelly et al. 
1986, Frost and Burns 1989, Smith et al. 1991, Oceana and Kawerak 2014) 
and stable pack ice (Finley et al. 1983, Fedoseev et al. 1988, Wiig et 
al. 1999, Pilfold et al. 2014). Snowdrifts of sufficient depth 
typically occur only where the ice has undergone a low to moderate 
amount of deformation and where snow on the ice has drifted along 
pressure ridges or ice hummocks (Smith and Stirling 1975, Lydersen and 
Gjertz 1986, Furgal et al. 1996, Lydersen 1998).
    Females give birth to a single pup in their lairs generally from 
mid-March through April, and the pups are nursed in the lairs for an 
average of 39 days (Hammill and Smith 1991), with considerable 
variation (Kelly et al. 2010a). Females continue to forage throughout 
lactation while making frequent visits to birth lairs (Hammill 1987, 
Kelly and Wartzok 1996, Simpkins et al. 2001). The pups develop 
foraging skills before weaning (Lydersen and Hammill 1993), and are 
normally weaned before break-up of spring ice (McLaren 1958, Smith 
1973, Smith et al. 1991, Hammill et al. 1991, Kelly 1988).
    Subnivean lairs provide protection from cold and predators 
throughout the winter months, but they are especially important for 
protecting newborn ringed seals. The lairs conceal ringed seals from 
predators, an advantage especially important to the small pups that 
start life with minimal tolerance for immersion in cold water (Smith et 
al. 1991). Major predators of ringed seals include polar bears (Ursus 
maritimus) and Arctic foxes (Alopex lagopus) (e.g., Smith 1976, Frost 
and Burns 1989, Derocher et al. 2004, Thiemann et al. 2008). Pups in 
lairs with thin snow cover are more vulnerable to polar bear predation 
than pups in lairs with thick snow cover (Hammill and Smith 1989, 
Ferguson et al. 2005). For example, Hammill and Smith (1991) noted that 
polar bear predation on ringed seal pups increased four-fold in a year 
when average snow depths in their study area decreased from 23 to 10 
cm. Stirling and Smith (2004) surmised that most pups that survived 
exposure to cold after their subnivean lairs collapsed during 
unseasonal rains were eventually killed by polar bears, Arctic foxes, 
or gulls.
    Subnivean lairs also provide refuge from air temperatures too low 
for survival of ringed seal pups. When forced to flee into the water to 
avoid predators, the ringed seal pups that survive depend on the 
subnivean lairs to subsequently warm themselves (Smith et al. 1991). 
When snow depth is insufficient, pups can freeze in their lairs, as 
documented when roofs of lairs in the White Sea were only 5 to 10 cm 
thick (Lukin and Potelov 1978). Stirling and Smith (2004) also 
documented exposure of ringed seals to hypothermia following the 
collapse of subnivean lairs during unseasonal rains near southeastern 
Baffin Island.
    During winter and spring, ringed seals are found throughout the 
Chukchi and Beaufort seas (Frost 1985, Kelly 1988). In the Bering Sea, 
surveys indicate that ringed seals use nearly the entire ice field over 
the Bering Sea shelf. During an exceptionally high ice year (1976), 
Braham et al. (1984) found ringed seals present in the southeastern 
Bering Sea north of the Pribilof Islands to outer Bristol Bay, 
primarily north of the ice front. But the authors noted that most of 
these seals were likely immature or nonbreeding animals. Frost (1985) 
indicated that ringed seals ``occur as far south as Nunivak Island and 
Bristol Bay, depending on ice conditions in a particular year, but 
generally are not abundant south of Norton Sound except in nearshore 
areas.'' More recently, surveys conducted in the Bering Sea during 
spring documented numerous ringed seals in both nearshore and offshore 
habitat, including south of Norton Sound (NMFS Marine Mammal 
Laboratory, 2012-2013, unpublished data). Relatively few ringed seal 
pups were documented during these surveys, likely reflecting, at least 
in part, that pups were sheltered in subnivean lairs and thus would not 
have been detected during the surveys. Although the majority of the 
limited detections of pups were located in Norton Sound, pups were also 
documented in offshore habitat farther south. Satellite tracking data 
for ringed seals tagged in Kotzebue Sound, Alaska, showed that adults 
remained, for the most part, in the Chukchi Sea and Bering Sea north of 
St. Lawrence Island during winter and spring (Crawford et al. 2012a). 
However, movement data for ringed seals tagged near Utqia[gdot]vik, 
Alaska, in 2011 indicated that some adults overwintered toward the 
shelf break in the Bering Sea (North Slope Borough, 2012, unpublished 
data). Ringed seals tagged more recently in the Chukchi and Beaufort 
seas (primarily adults) used areas as far south as Nunivak Island 
during December to May, but the core-use area was located in southern 
Kotzebue Sound (Quakenbush et al. 2019). Finally, the subsistence 
harvest of ringed seal pups by hunters in Quinhagak, Alaska (Coffing et 
al. 1998), suggests that some ringed seals may whelp south of Nunivak 
Island.
    Basking Period: Numbers of ringed seals hauled out on the surface 
of the ice typically begin to increase during spring as the 
temperatures warm and the snow covering the seals' lairs melts. 
Although the snow cover can melt rapidly, the ice remains largely 
intact and serves as a substrate for annual molting, during which time 
seals spend many hours basking in the sun (Smith 1973, Finley 1979, 
Smith and Hammill 1981, Kelly and Quakenbush 1990, Kelly et al. 2010b). 
Adults generally molt from mid-May to mid-July (McLaren 1958), although 
there is regional variation (Ryg and [Oslash]ritsland 1991), and pups 
molt at or shortly after weaning (Kelly 1988, Lydersen and Hammill 
1993). Subadult harbor seals (Phoca vitulina) and spotted seals (Phoca 
largha) tend to molt earlier than adults (Ashwell-Erickson et al. 1986, 
Burns 2002, Daniel et al. 2003), and this may also be the case for 
subadult ringed seals (Kelly and Quakenbush 1990). Usually the largest 
numbers of basking seals are observed in June (Smith 1973, Finley 1979, 
Smith et al. 1979, Smith and Hammill 1981, Moulton et al. 2002). 
Feeding is reduced and the seals' metabolism declines during the molt 
(Ashwell-Erickson et al. 1986). As seals complete this phase of the 
annual pelage cycle and the seasonal sea ice melts during the summer, 
ringed seals spend increasing amounts of time in the water feeding 
(Kelly et al. 2010b).
    Most Arctic ringed seals that winter in the Bering and southern 
Chukchi seas are believed to migrate northward in spring as the ice 
edge recedes and spend the summer open-water foraging period in the 
pack ice of the northern Chukchi and Beaufort seas (Frost 1985). 
Existing information on the distribution and abundance of Arctic ringed 
seals in the U.S. Chukchi and Beaufort seas during the molting period 
comes largely from aerial surveys conducted for the most

[[Page 1457]]

part over the continental shelf within about 25 to 40 km of the Alaska 
coast. However, Bengtson et al. (2005) reported results for spring 
aerial surveys conducted during two successive years in the Chukchi Sea 
that included a limited number of offshore (beyond 43 km from the 
coast) transect lines flown perpendicular from the coast up to 185 km. 
Ringed seals were observed along these offshore transects, albeit at 
lower densities than transects flown closer to the coast. Aerial 
surveys conducted in spring to early summer (coincident with the 
periods of Arctic ringed seal reproduction and molting) in the U.S. 
Beaufort Sea to investigate bowhead whale density and distribution were 
concentrated over the continental shelf, but less extensive surveys 
were also conducted over the adjacent shelf slope and deeper waters up 
to about 100 km north of the shelf (Ljungblad 1981, Ljungblad et al. 
1982, Ljungblad et al. 1983, Ljungblad et al. 1984, Ljungblad et al. 
1985, Ljungblad et al. 1986, Ferguson 2013). Incidental sightings of 
ringed seals were recorded throughout the survey area, including in the 
limited areas surveyed north of the shelf.
    Open-Water Foraging Period: Arctic ringed seals typically lose a 
significant proportion of their blubber mass in late winter through 
early summer and then replenish their blubber reserves during the open-
water period, when the seals spend much of their time feeding (Ryg et 
al. 1990, Ryg and [Oslash]ritsland 1991, Belikov and Boltunov 1998, 
Goodyear 1999, Young and Ferguson 2013).
    Most Arctic ringed seals that winter in the Bering and southern 
Chukchi seas are believed to migrate northward in spring as the ice 
edge recedes and spend the summer open-water foraging period in the 
pack ice of the northern Chukchi and Beaufort seas (Frost 1985). Arctic 
ringed seals are also dispersed in ice-free areas of the Bering, 
Chukchi, and Beaufort seas during this period. Tracking data indicate 
that tagged ringed seals made extensive use of the continental shelf 
waters of the U.S. Chukchi and Beaufort seas during the open-water 
period (Crawford et al. 2012a, Quakenbush et al. 2019, Von Duyke et al. 
2020). Quakenbush et al. (2019) identified a high-use area for tagged 
ringed seals during the open-water period that included Barrow Canyon 
and the western Beaufort Sea over the continental shelf similar to 
where Citta et al. (2018) mapped a relatively high density of locations 
of tagged ringed seals during summer. Although tagged ringed seals 
tracked in U.S. waters tended to remain over the continental shelf, 
several individuals also made trips into the deep waters north of the 
shelf (Crawford et al. 2019, Quakenbush et al. 2019; Alaska Department 
of Fish and Game (ADF&G) and North Slope Borough, 2019, unpublished 
data, Von Duyke et al. 2020). Von Duyke et al. (2020) reported that 
most of the forays by tagged ringed seals north of the shelf involved 
movements to retreating pack ice and included days when the seals 
hauled out on the ice. Dive recorders indicated that foraging-type 
movements occurred over both the continental shelf and north of the 
shelf, suggesting that both areas may be important during the open-
water period. Similarly, during the open-water period, some, primarily 
subadult, ringed seals satellite-tagged in Svalbard, Norway, made 
forays into the Arctic Ocean Basin, and that time spent there increased 
after a major collapse of sea ice in this region, when the seals 
traveled farther to find sea ice (Hamilton et al. 2015, Hamilton et al. 
2017). Observations of ringed seals near and beyond the outer extent of 
the U.S. Exclusive Economic Zone (EEZ) north of the shelf were also 
documented by marine mammal observers during a research geophysical 
survey conducted in the summer of 2010 (Beland and Ireland 2010).

Diet

    High-quality abundant food is important to the annual energy 
budgets of Arctic ringed seals (Kelly et al. 2010a). The seals eat a 
wide variety of prey spanning several trophic levels; however, most 
prey are small, and preferred fishes tend to be schooling species that 
form dense aggregations (Kovacs 2007). Arctic ringed seals rarely prey 
upon more than 10 to 15 species in any specific geographic location, 
and not more than 2 to 4 of those species are considered to be key prey 
(W[eogon]slawski et al. 1994). Despite regional and seasonal variations 
in the diets of Arctic ringed seals, fishes of the cod family tend to 
dominate their diet in many areas from late autumn through early spring 
(Kelly et al. 2010a). Arctic cod (Boreogadus saida) is often reported 
to be among the primary prey species, especially during the ice-covered 
periods of the year (e.g., Lowry et al. 1980, Bradstreet and Finley 
1983, Smith 1987, Belikov and Boltunov 1998, Siegstad et al. 1998, 
Labansen et al. 2007, Quakenbush et al. 2011). Crustaceans are also 
commonly found in the diet of ringed seals and can be important in some 
regions, at least seasonally (e.g., Lowry et al. 1980, Bradstreet and 
Finley 1983, Smith 1987, Belikov and Boltunov 1998, Siegstad et al. 
1998, Quakenbush et al. 2011).

Critical Habitat Identification

    In the following sections, we describe the relevant definitions and 
requirements in the ESA and implementing regulations at 50 CFR part 
424, and the key information and criteria used to prepare this revised 
proposed critical habitat designation. In accordance with section 
4(b)(2) of the ESA, this revised proposed critical habitat designation 
is based on the best scientific data available. Our primary sources of 
information include the status review report for the ringed seal (Kelly 
et al. 2010a), our proposed and final rules to list four subspecies of 
ringed seals, including the Arctic ringed seal, under the ESA (75 FR 
77476, December 10, 2010; 77 FR 76706, December 28, 2012), articles in 
peer-reviewed journals, other scientific reports, and relevant 
Geographic Information System (GIS) and satellite data (e.g., shoreline 
data, U.S. maritime limits and boundaries data, sea ice extent) for 
geographic area calculations and mapping.
    To identify specific areas that may qualify as critical habitat for 
Arctic ringed seals, in accordance with 50 CFR 424.12(b), we followed a 
five-step process: (1) Identify the geographical area occupied by the 
species at the time of listing; (2) identify physical or biological 
habitat features essential to the conservation of the species; (3) 
determine the specific areas within the geographical area occupied by 
the species that contain one or more of the physical or biological 
features essential to the conservation of the species; (4) determine 
which of these essential features may require special management 
considerations or protection; and (5) determine whether a critical 
habitat designation limited to geographical areas occupied would be 
inadequate to ensure the conservation of the species. Our evaluation 
and conclusions are described in detail in the following sections.

Geographical Area Occupied by the Species

    The phrase ``geographical areas occupied by the species,'' which 
appears in the statutory definition of critical habitat, is defined by 
regulation as an area that may generally be delineated around species' 
occurrences as determined by the Secretary (i.e., range) (50 CFR 
424.02). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis, such 
as migratory corridors, seasonal habitats, and habitats used 
periodically, but not solely, by vagrant individuals (Id.).

[[Page 1458]]

    Based on existing literature, including available information on 
Arctic ringed seal sightings and movements, the range of the Arctic 
ringed seal was identified in the final ESA listing rule (77 FR 76706; 
December 28, 2012) as the Arctic Ocean and adjacent seas, except west 
of 157[deg]00' E (the Kamchatka Peninsula), where the Okhotsk 
subspecies of the ringed seal occurs, or in the Baltic Sea where the 
Baltic subspecies of the ringed seal is found. As noted previously, we 
cannot designate areas outside U.S. jurisdiction as critical habitat. 
Thus, the geographical area under consideration for this designation is 
limited to areas under the jurisdiction of the United States that 
Arctic ringed seals occupied at the time of listing. This area extends 
to the outer boundary of the U.S. EEZ in the Chukchi and Beaufort seas, 
and as far south as Bristol Bay in the Bering Sea (Kelly et al. 2010a).

Physical and Biological Features Essential to the Conservation of the 
Species

    The statutory definition of occupied critical habitat refers to 
``physical or biological features essential to the conservation of the 
species,'' but the ESA does not specifically define or further describe 
these features. Implementing regulations at 50 CFR 424.02, however, 
define such features as those that occur in specific areas and that are 
essential to support the life-history needs of the species. The 
regulations provide additional details and examples of such features.
    Based on the best scientific information available regarding the 
natural history of the Arctic ringed seal and the habitat features that 
are essential to support the species' life-history needs, we have 
identified the following physical or biological features that are 
essential to the conservation of the Arctic ringed seal within U.S. 
waters occupied by the species.
    (1) Snow-covered sea ice habitat suitable for the formation and 
maintenance of subnivean birth lairs used for sheltering pups during 
whelping and nursing, which is defined as areas of seasonal landfast 
(shorefast) ice and dense, stable pack ice, excluding any bottom-fast 
ice extending seaward from the coastline (typically in waters less than 
2 m deep), that have undergone deformation and contain snowdrifts of 
sufficient depth, typically at least 54 cm deep.
    Snow-covered sea ice habitat suitable for the formation and 
maintenance of subnivean birth lairs used for sheltering pups during 
whelping and nursing is essential to conservation of the Arctic ringed 
seal because without the protection of lairs, ringed seal pups are more 
vulnerable to freezing and predation (Lukin and Potelov 1978, Smith 
1987, Hammill and Smith 1991, Smith et al. 1991, Smith and Lydersen 
1991, Stirling and Smith 2004, Ferguson et al. 2005).
    Snowdrifts of sufficient depth for birth lair formation and 
maintenance typically occur in deformed ice where drifting has taken 
place along pressure ridges or ice hummocks (Smith and Stirling 1975, 
Lydersen and Gjertz 1986, Smith 1987, Kelly 1988, Furgal et al. 1996, 
Lydersen 1998). For purposes of assessing potential impacts of 
projected changes in April Northern Hemisphere snow conditions on 
ringed seals, Kelly et al. (2010a) considered 20 cm to be the minimum 
average snow depth required on areas of flat ice to form drifts of 
sufficient depth to support birth lair formation. Further, Kelly et al. 
(2010a) discussed that ringed seals require snowdrift depths of 50 to 
65 cm or more to support birth lair formation. To identify the typical 
snowdrift depth for snow-covered sea ice habitat that we consider 
sufficient for Arctic ringed seal birth lair formation and maintenance, 
we derived a specific depth threshold as follows. At least seven 
studies have reported minimum snowdrift depth measurements at Arctic 
ringed seal birth lairs (typically measured near the center of the 
lairs or over the breathing holes) off the coasts of Alaska (Kelly et 
al. 1986, Frost and Burns 1989), the Canadian Arctic Archipelago (Smith 
and Stirling 1975, Kelly 1988, Furgal et al. 1996), Svalbard (Lydersen 
and Gjertz 1986), and in the White Sea (Lukin and Potelov 1978). The 
average minimum snowdrift depth measured at birth lairs was 54 cm 
across all of the studies combined, and 64 cm in the Alaska studies 
only. The average from studies in Alaska is based on data from fewer 
years over a shorter time span than from all seven studies combined (3 
years during 1982-1984 versus 11 years during 1971-1993, respectively); 
consequently, the Alaska-specific average is more likely to be biased 
if an anomalous weather pattern occurred during its more limited 
timeframe. For this reason, we conclude that the average minimum 
snowdrift depth based on all studies combined (54 cm) provides the best 
estimate of the typical minimum snowdrift depth that is sufficient for 
birth lairs.
    Arctic ringed seals favor landfast ice as whelping habitat (e.g., 
Smith and Stirling 1975, 1978, Smith and Hammill 1981, Lydersen and 
Gjertz 1986, Smith and Lydersen 1991, Pilfold et al. 2014). However, 
landfast ice extending seaward from shore may freeze to the sea bottom 
in very shallow water (typically less than about 1.5 to 2 m deep) 
during the course of winter (commonly referred to as ``bottom-fast'' 
ice; Reimnitz et al. 1977, Newbury 1983, Hill et al. 1991, Dammann et 
al. 2018, Dammann et al. 2019), rendering it unsuitable for ringed seal 
birth lairs. Arctic ringed seal whelping has also been observed on both 
nearshore and offshore drifting pack ice. As Reeves (1998) noted, 
nearly all research on Arctic ringed seal reproduction has been 
conducted in landfast ice, and the potential importance of stable but 
drifting pack ice has not been adequately investigated. Studies in the 
Barents Sea (Wiig et al. 1999), Baffin Bay (Finley et al. 1983) and the 
Canadian Beaufort Sea (Pilfold et al. 2014) have documented pup 
production in pack ice, and Smith and Stirling (1975), citing 
unpublished data from the ``Western Arctic'' (presumably the Canadian 
Beaufort Sea), also indicated that ``the offshore areas of shifting but 
relatively stable ice are an important part of the breeding habitat.'' 
Lentfer (1972) reported ``a significant amount of ringed seal denning 
and pupping on moving heavy pack ice north of Barrow [i.e., 
Utqia[gdot]vik].'' Moreover, surveys conducted in the Bering and 
Chukchi seas during spring have documented ringed seals, including 
observations of pups, in offshore areas (NMFS Marine Mammal Laboratory, 
2012-2013 and 2016, unpublished data). Ringed seal vocalizations 
detected throughout the winter and spring in long-term autonomous 
acoustic recordings collected along the shelf break north-northwest of 
Utqia[gdot]vik, along with a seasonal change in the repertoire during 
the breeding season, also suggest that some Arctic ringed seals 
overwinter and breed in offshore pack ice (Jones et al. 2014). We 
therefore conclude that the best scientific information available 
indicates that snow-covered sea ice habitat essential for the formation 
and maintenance of birth lairs includes areas of both landfast ice 
(except for any bottom-fast ice extending seaward from the coastline) 
and dense, stable pack ice that have undergone deformation and contain 
snowdrifts of sufficient depth, typically at least 54 cm deep.
    (2) Sea ice habitat suitable as a platform for basking and molting, 
which is defined as areas containing sea ice of 15 percent or more 
concentration, excluding any bottom-fast ice extending seaward from the 
coastline (typically in waters less than 2 m deep).
    Sea ice habitat suitable as a platform for basking and molting is 
essential to conservation of the Arctic ringed seal

[[Page 1459]]

because molting is a biologically-important, energy-intensive process 
that could incur increased energetic costs if it were to occur in 
water, or increased risk of predation if it were to occur on land due 
to the absence of readily accessible escape routes to avoid predators 
(i.e., breathing holes or natural openings in sea ice). Moreover, we 
are unaware of any studies establishing whether Arctic ringed seals can 
molt successfully in water, or reports of healthy Arctic ringed seals 
hauled out on land during the molt (they are known to come ashore 
during this period when sick). Traditional ecological knowledge 
indicates that ringed seals, mostly young individuals, have been 
occasionally seen hauled out on land in spring near Elim, Alaska, 
although molt status was not addressed (Huntington et al. 2015a). If 
Arctic ringed seals were unable to complete their annual molt 
successfully, they would be at increased risk from parasites and 
disease.
    During their annual molt, Arctic ringed seals transition from lair 
use to basking on the surface of the ice for long periods of time near 
breathing holes, lairs, or cracks in the ice (Kelly et al. 2010a). The 
relatively long periods of time that ringed seals spend out of the 
water during the molt (e.g., Smith 1973, Smith and Hammill 1981, Kelly 
et al. 2010b) have been ascribed to the need to maintain elevated skin 
temperatures during new hair growth (Feltz and Fay 1966, Kelly and 
Quakenbush 1990). Higher skin temperatures are facilitated by basking 
on the ice and this may accelerate shedding and regrowth of hair and 
skin (Feltz and Fay 1966).
    Limited data are available on ice concentrations (percentage of 
ocean surface covered by sea ice) favored by Arctic ringed seals during 
the basking period, in particular for the period following ice breakup. 
Although a number of studies have reported an apparent preference for 
consolidated stable ice (i.e., landfast ice and consolidated pack ice), 
at least during the initial weeks of the basking period, some of these 
studies have also reported observations of Arctic ringed seals hauled 
out at low densities in unconsolidated ice (e.g., Stirling et al. 1982, 
Kingsley et al. 1985, Kingsley and Stirling 1991, Lunn et al. 1997, 
Chambellant et al. 2012). Crawford et al. (2012a) reported that the 
average ice concentrations (plus or minus standard error (SE), a 
measure of variability in the data) used by ringed seals in the Chukchi 
and Bering seas during the basking period in June was 20 percent (SE = 
7.8 percent) for subadults and 38 percent (SE = 21.4 percent) for 
adults. Arctic ringed seals in the Chukchi Sea have also been observed 
basking in high densities on the last remnants of the seasonal sea ice 
during late June to early July, near the end of the molting period (S. 
Dahle, NMFS, personal communication, 2013). As discussed above, 
landfast ice extending seaward from shore may freeze to the sea bottom 
in very shallow water (typically less than about 1.5 to 2 m deep) 
during the course of winter and remain so into spring, potentially 
during part of the basking and molting period. There is also some 
evidence that ringed seal densities are lower in very shallow waters, 
at least in the Beaufort Sea during late May to early June (Moulton et 
al. 2002, Frost et al. 2004). Based on the best scientific information 
available, we therefore conclude that sea ice habitat essential for 
basking and molting is of at least 15 percent ice concentration, but 
does not include bottom-fast ice extending from the coastline.
    (3) Primary prey resources to support Arctic ringed seals, which 
are defined to be Arctic cod, saffron cod, shrimps, and amphipods.
    Primary prey resources are essential to conservation of the Arctic 
ringed seal because the seals likely rely on these prey resources the 
most to meet their annual energy budgets. Although Arctic ringed seals 
feed on a wide variety of vertebrate and invertebrate prey species, 
certain prey species appear to occupy a prominent role in their diets 
in waters along the Alaskan coast. Quakenbush et al. (2011; Tables 4-6) 
reported that prey items frequently consumed by ringed seals 
(considered here to be prey items identified in at least 25 percent of 
ringed seal stomachs collected) within the 1961 to 1984 and 1998 to 
2009 periods in the Bering and Chukchi seas included Arctic cod, 
saffron cod (Eleginus gracilis), shrimps (from the families 
Hippolytidae, Pandalidae, and Crangonidae), and amphipods (primarily 
from the families Gammaridae and Hyperiidae). Results reported by 
Crawford et al. (2015; Tables 1 and 2) indicated that prey items 
frequently consumed by ringed seals during May through July within the 
1975 to 1984 and 2003 to 2012 periods in the Bering Strait near Diomede 
included Arctic cod and shrimps (for seals >=1 year of age); and in the 
Chukchi Sea near Shishmaref included saffron cod and shrimps (for both 
pups and seals >=1 year of age). Dehn et al. (2007; Table 2) reported 
that in the Utqia[gdot]vik vicinity, prey items frequently consumed by 
ringed seals between 1996 and 2001 (primarily during summer) included 
euphausiids (Thysanoessa spp.), cods (primarily Arctic and saffron 
cod), mysids (Mysis and Neomysis spp.), amphipods, and pandalid 
shrimps. Finally, Lowry et al. (1980; Table 2) found that prey items 
frequently consumed by ringed seals (considered here to be at least 25 
percent of the total food volume in ringed seal stomachs collected in 
any of the five seasonal samples) in the Bering and Chukchi seas 
included Arctic cod, saffron cod, shrimps, and amphipods, and in the 
central Beaufort Sea (approximately 80 km northwest of Prudhoe Bay) 
included Arctic cod, as well as gammarid and hyperiid amphipods.
    In summary, Arctic cod, saffron cod, shrimps, and amphipods were 
identified as prominent prey species for the studies conducted in both 
the Bering Sea and the Chukchi Sea, and Arctic cod and amphipods were 
also identified as prominent prey species for ringed seals sampled in 
the central Beaufort Sea. Therefore, based on these studies, we 
conclude that Arctic cod, saffron cod, shrimps, and amphipods are the 
primary prey resources of Arctic ringed seals in U.S. waters. Because 
Arctic ringed seals feed on a variety of prey items and regional and 
seasonal differences in diet have been reported, we conclude that areas 
in which the primary prey essential feature occurs are those that 
contain one or more of these particular prey resources.

Specific Areas Containing the Essential Features

    To determine which areas qualify as critical habitat within the 
geographical area occupied by the species, we are required to identify 
``specific areas'' that contain one or more of the physical or 
biological features essential to the conservation of the species (and 
that may require special management considerations or protection, as 
described below) (50 CFR 424.12(b)(1)(iii)). Delineation of the 
specific areas is done at a scale determined by the Secretary to be 
appropriate (50 CFR 424.12(b)(1)). Regulations at 50 CFR 424.12(c) also 
require that each critical habitat area be shown on a map.
    In determining the scale and boundaries for the specific areas, we 
considered, among other things, the scales at which biological data are 
available and the availability of standardized geographical data 
necessary to map boundaries. Because the ESA implementing regulations 
allow for discretion in determining the appropriate scale at which 
specific areas are drawn (50 CFR 424.12(b)(1)), we are not required, 
nor was it possible, to

[[Page 1460]]

determine that each square inch, acre, or even square mile 
independently meets the definition of ``critical habitat.'' A main goal 
in determining and mapping the boundaries of the specific areas is to 
provide a clear description and documentation of the areas containing 
the identified essential features. This is ultimately fundamental to 
ensuring that Federal action agencies are able to determine whether 
their particular actions may affect the critical habitat.
    As we explain below, the essential features of Arctic ringed seal 
critical habitat, in particular the sea ice essential features, are 
dynamic and variable on both spatial and temporal scales. As climatic 
conditions change there may be increased variability in sea ice 
characteristics and spatial/temporal coverage, including with respect 
to the southern extent of sea ice in the spring and the timing and rate 
of the retreat of sea ice during spring and early summer. Arctic ringed 
seal movements and habitat use are strongly influenced by the 
seasonality of sea ice and the seals can range widely in response to 
the specific locations of the most suitable habitat conditions. We have 
therefore identified one specific area to propose as critical habitat 
in the Bering, Chukchi, and Beaufort seas based on the expected 
occurrence of the identified essential features.
    We first focused on identifying where sea ice essential features 
that support the species' life history functions of whelping and 
nursing (when birth lairs are constructed and maintained), and molting 
occur. As discussed above, Arctic ringed seals are highly associated 
with sea ice, and the seals tend to migrate seasonally to maintain 
access to the ice. Arctic ringed seal whelping, nursing, and molting 
takes place in the Bering, Chukchi, and Beaufort seas. Therefore, we 
considered where the sea ice essential features occur in all of these 
waters.
    The dynamic nature of sea ice and the spatial and temporal 
variations in sea ice and on-ice snow cover conditions constrain our 
ability to map with precision the specific geographic locations where 
the sea ice essential features will occur. Sea ice characteristics such 
as ice extent, ice concentration, and ice surface topography vary 
spatiotemporally (e.g., Iacozza 2011). Snowdrift depths on sea ice are 
also spatiotemporally variable, as drifting of snow is determined by 
characteristics of the ice, such as surface topography and weather 
conditions (e.g., wind speed/direction and snowfall amounts), among 
other factors (Iacozza and Ferguson 2014). The specific geographic 
locations where essential sea ice habitat used by Arctic ringed seals 
occur vary from year to year, or even day to day, depending on many 
factors, including time of year, local weather, and oceanographic 
conditions (e.g., Frost et al. 1988, Frost et al. 2004, Gadamus et al. 
2015). In addition, the duration that sea ice habitat essential for 
birth lairs, or for basking and molting, is present in any given 
location can vary annually depending on the rate of ice melt and other 
factors. The temporal overlap of Arctic ringed seal molting with 
whelping and nursing, combined with the dynamic nature of sea ice and 
on-ice snow depths, also makes it impracticable to separately identify 
specific areas where each of these essential features occur. However, 
it is unnecessary to distinguish between specific areas containing sea 
ice essential for birth lairs and sea ice essential for basking and 
molting because the ESA permits the designation of critical habitat 
where one or more essential features occur.
    Arctic ringed seals can range widely, which, combined with the 
dynamic variations in sea ice and on-ice snow depths, results in 
individuals distributing broadly and using sea ice habitats within a 
range of suitable conditions. We integrated these physical and 
biological factors into our identification of specific areas where one 
or both sea ice essential features occur by considering the information 
currently available on the seasonal distribution and movements of 
Arctic ringed seals during the annual period of reproduction and 
molting, along with satellite-derived estimates of the position of the 
sea ice edge over time. Although this approach allowed us to identify 
specific areas that contain one or both of the sea ice essential 
features at certain times, the available data supported delineation of 
specific areas only at a coarse scale. Consequently, we delineated a 
single specific area that contains the sea ice features essential to 
the conservation of Arctic ringed seals, as follows.
    We first identified the southern boundary of this specific area. As 
explained in detail previously in the Summary of Revisions to Proposed 
Critical Habitat section, we delineated the southern boundary of where 
one or both of the sea ice essential features occur to reflect the 
estimated position of the May median ice edge for the 1990 to 2019 
period. To simplify the southern boundary for purposes of delineation 
on maps, we modified this ice edge contour line as follows: (1) 
Intermediate points along the contour line between its intersection 
point with the seaward limit of the U.S. EEZ (61[deg]18'15'' N/
177[deg]45'56'' W) and the point southwest of St. Matthew Island where 
the contour line turns northeastward (60[deg]7' N/172[deg]1' W) were 
removed to form the segment of the southern boundary that extends from 
the seaward limit of the U.S. EEZ southeastward approximately 340 km; 
and (2) intermediate points along the contour line between the point 
southwest of St. Matthew Island and the point where the contour line 
reaches the coast near Cape Romanzof were removed and connected to the 
coast to form the second segment of the southern boundary that extends 
northeastward approximately 370 km (at 61[deg]48'42'' N/166[deg]6'5'' 
W). This editing produced a simplified southern boundary that retains 
the general shape of the original ice edge contour line.
    Because Arctic ringed seals use nearly the entire ice field over 
the Bering Sea shelf in the spring, depending upon ice conditions in a 
given year, some ringed seals may use sea ice for whelping south of the 
southern boundary described above. But we concluded that the 
variability in the annual extent and timing of sea ice in this 
southernmost portion of the Arctic ringed seal's range in the Bering 
Sea (e.g., Boveng et al. 2009, Stabeno et al. 2012b, Frey et al. 2015) 
renders these waters unlikely to contain the sea ice essential features 
on a consistent basis in more than limited areas.
    We then identified the northern boundary of the specific area that 
contains one or both of the sea ice essential features. As discussed 
above, Arctic ringed seals have a widespread distribution, including in 
offshore pack ice. The period during which ringed seals bask and molt 
overlaps with when many ringed seals also migrate north with the 
receding ice edge, sea ice and on-ice snow depths are dynamic and 
variable on both spatial and temporal scales, and sea ice suitable for 
basking and molting, and potentially for birth lairs, occurs over 
waters extending up to and beyond the seaward limit of the U.S. EEZ 
(see, e.g., Fetterer et al. 2017, Sea Ice Index Version 3.0, accessed 
November 2019, Blanchard-Wrigglesworth et al. 2018). We therefore 
concluded that the outer extent of the U.S. EEZ to the north, west, and 
east best defines the remaining boundaries of the area containing the 
sea ice essential features. We note that Canada contests the limits of 
the U.S. EEZ in the eastern Beaufort Sea, asserting that the line 
delimiting the two countries' EEZs should follow the 141st meridian out 
to a distance of 200 nautical miles (nm) (as opposed to an equidistant 
line that extends seaward perpendicular to the coast at the U.S.-Canada 
land border).

[[Page 1461]]

    The primary prey species essential to Arctic ringed seals are found 
in a range of habitats in U.S. waters occupied by these seals. 
Amphipods documented in the diet of Arctic ringed seals in U.S. waters 
include the pelagic hyperiid amphipod Parathemisto libellula; gammarid 
amphipod species that inhabit the underside of sea ice; and benthic 
amphipods and shrimps, which were well represented in sampling 
conducted for benthic assessments in the Beaufort and Chukchi seas 
(e.g., Bluhm et al. 2009, Grebmeier et al. 2015, Ravelo et al. 2015, 
Sigler et al. 2017). Notably, Arctic cod and saffron cod make up a 
substantial portion of the fish biomass in the U.S. Chukchi Sea and 
Arctic cod dominates the fish biomass in the U.S. Beaufort Sea (North 
Pacific Fishery Management Council 2009, Logerwell et al. 2015). Arctic 
cod are regularly observed in association with sea ice, but they are 
also found in seasonally ice-free waters (e.g., Bradstreet et al. 1986, 
Parker-Stetter et al. 2011, Logerwell et al. 2015). The southern extent 
of the distribution of Arctic cod and its abundance in the northern and 
eastern Bering Sea are more limited and linked to the extent of ice 
cover and associated cold bottom temperatures (Love et al. 2016, 
Mecklenburg et al. 2016, Forster 2019, Marsh and Mueter 2019). The 
distribution of saffron cod overlaps to some extent with that of Arctic 
cod in the Chukchi and Beaufort seas, but this species is typically 
found in warmer water and has a more shallow coastal distribution that 
extends farther south in the Bering Sea (Love et al. 2016, Mecklenburg 
et al. 2016). The movements and foraging activities of Arctic ringed 
seals are strongly influenced by the seasonality of ice cover, the 
seals forage throughout the year (albeit with reduced feeding during 
molting), and they are broadly distributed and can range widely. Thus, 
although Arctic ringed seals may forage seasonally in some particular 
areas, such as Barrow Canyon, the seals also make extensive use of a 
diversity of habitats for foraging across much broader areas in the 
Bering, Chukchi, and Beaufort seas. Although tagged ringed seals 
tracked in U.S. waters tended to remain over the continental shelf, 
several individuals also made trips into the deep waters north of the 
shelf during the open-water period, where dive recorders indicated that 
the seals showed foraging-type movements (see Distribution and Habitat 
Use section). Because of these considerations, as well as the limits of 
the currently available information on habitat use of foraging Arctic 
ringed seals, we conclude that the seaward boundaries delineated above 
for the sea ice essential features are also appropriate for defining 
the specific area where the primary prey essential feature occurs.
    Crawford et al. (2012b) suggested that southern ice edge habitat in 
the Bering Sea near the shelf break south of the southern boundary 
specified above may be important for overwintering of subadult ringed 
seals, including for foraging. But aside from the limited data on 
subadult movements and dive behavior during winter near the ice edge 
and shelf break in the Bering Sea, we lack specific information on the 
significance of this habitat to the conservation of the species. We 
therefore conclude that it is appropriate to delineate the southern 
boundary as described above.
    Finally, we considered the shoreward extent of where one or more of 
the essential features occur. Essential fish habitat (EFH) has been 
described and identified for certain life stages of both Arctic cod and 
saffron cod, which are two of the essential Arctic primary prey species 
(North Pacific Fishery Management Council 2009; 83 FR 31340, July 5, 
2018). EFH for late juvenile and adult Arctic cod includes shallow 
nearshore areas of the continental shelf in the Chukchi and Beaufort 
seas, and EFH for late juvenile and adult saffron cod also includes a 
substantial portion of the shallow nearshore shelf habitat in the 
Chukchi Sea. Studies conducted in very shallow nearshore waters have 
documented the presence of one or both species at sampling sites in the 
Alaskan Beaufort Sea (Craig et al. 1982, Underwood et al. 1995, Wiswar 
et al. 1995, Johnson et al. 2010, Logerwell et al. 2015) and in Norton 
Sound (Barton 1978). There have been limited ringed seal surveys 
conducted in areas with very shallow waters (less than 3 to 5 m in 
depth). Nevertheless, there is some evidence that ringed seal densities 
are lower in such areas, at least in the Beaufort Sea during late May 
to early June (Moulton et al. 2002, Frost et al. 2004). Still, during 
the open-water foraging period and into early winter, satellite 
tracking data indicate some tagged ringed seals used shallow nearshore 
waters, for example, in Harrison Bay and Smith Bay (Quakenbush et al. 
2019), and we infer that this nearshore habitat use is due to the 
availability of suitable prey. Similarly, information from traditional 
ecological knowledge indicates that some, primarily juvenile, ringed 
seals use shallow nearshore waters, including river mouths, for feeding 
during the summer in the Bering Strait region (Oceana and Kawerak 
2014), and that in the fall, ringed seals return to and feed in 
Kotzebue Sound, including the relatively shallow waters of Hotham Inlet 
(Gadamus et al. 2015, Northwest Arctic Borough 2016). After considering 
the information currently available as a whole, principally based on 
occurrence of the primary prey essential feature, we are proposing to 
define the shoreward boundary of critical habitat as the line that 
marks MLLW. This specific area does not extend into tidally-influenced 
channels of tributary waters of the Bering, Chukchi, or Beaufort seas.
    Data to determine the boundaries of the specific area containing 
the essential features are limited. We specifically seek additional 
data and comments on our proposed delineation of these boundaries (see 
Public Comments Solicited section).

Special Management Considerations or Protection

    A specific area within the geographic area occupied by a species 
may only be designated as critical habitat if the area contains one or 
more essential physical or biological feature that may require special 
management considerations or protection (16 U.S.C. 1532(5)(A)(ii); 50 
CFR 424.12(b)(iv)). ``Special management considerations or protection'' 
is defined as methods or procedures useful in protecting the physical 
or biological features essential to the conservation of listed species 
(50 CFR 424.02). Courts have indicated that the ``may require'' 
standard requires that NMFS determine that special management 
considerations or protection of the essential features might be 
required either now or in the future (i.e., such considerations or 
protection need not be immediately required). See Cape Hatteras Access 
Pres. Alliance v. U.S. Dep't of Interior, 344 F. Supp. 2d 108, 123-24 
(D.D.C. 2004); Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife 
Serv., 268 F. Supp. 2d 1197, 1218 (E.D. Cal. 2003). The relevant 
management need may be ``in the future based on possibility.'' See Bear 
Valley Mut. Water Co. v. Salazar, No. SACV 11-01263-JVS, 2012 WL 
5353353, at *25 (C.D. Cal. Oct. 17, 2012); see also Ctr. for Biological 
Diversity v. Norton, 240 F. Supp. 2d 1090, 1098-99 (D. Ariz. 2003) 
(noting that the ``may require'' phrase can be rephrased and understood 
as ``can require'' or ``possibly requires'').
    We have identified four primary sources of potential threats to 
each of the habitat features identified above as essential to the 
conservation of Arctic ringed seals: Climate change; oil and gas

[[Page 1462]]

exploration, development, and production; marine shipping and 
transportation; and commercial fisheries. As further detailed below, 
both sea ice essential features and the primary prey essential feature 
may require special management considerations or protection as a result 
of impacts (either independently or in combination) from these sources. 
We note that our evaluation does not consider an exhaustive list of 
threats that could have impacts on the essential features, but rather 
considers the primary potential threats that we are aware of at this 
time that support our conclusion that special management considerations 
or protection of each of the essential features may be required. 
Further, we highlight particular threats associated with each source of 
impacts while recognizing that certain threats are associated with more 
than one source (e.g., marine pollution and noise).

Climate Change

    The principal threat to the persistence of the Arctic ringed seal 
is anticipated loss of sea ice and reduced on-ice snow depths stemming 
from climate change. Climate-change-related threats to the Arctic 
ringed seal's habitat are discussed in detail in the ringed seal status 
review report (Kelly et al. 2010a), as well as in our proposed and 
final rules to list the Arctic ringed seal as threatened. Total Arctic 
sea ice extent has been showing a decline through all months of the 
satellite record since 1979 (Meier et al. 2014). Although there will 
continue to be considerable annual variability in the rate and timing 
of the breakup and retreat of sea ice, trends in climate change are 
moving toward ice that is more susceptible to melt (Markus et al. 
2009), and areas of earlier spring ice retreat (Stammerjohn et al. 
2012, Frey et al. 2015). Notably, February and March ice extent in the 
Bering Sea in 2018 and 2019 were the lowest on record (Stabeno and Bell 
2019), and in the spring of 2019, melt onset in the Chukchi Sea 
occurred 20 to 35 days earlier than the 1981 to 2010 average (Perovich 
et al. 2019). Activities that release carbon dioxide and other heat-
trapping greenhouse gases (GHGs) into the atmosphere, most notably 
those that involve fossil fuel combustion, are a major contributing 
factor to climate change and loss of sea ice (Intergovernmental Panel 
on Climate Change 2013, U.S. Global Climate Change Research Program 
2017). Such activities may adversely affect the essential features of 
Arctic ringed seal habitat by diminishing snow-covered sea ice suitable 
for birth lairs and sea ice suitable for basking and molting, and by 
causing changes in the distribution, abundance, and/or species 
composition of prey resources (including Arctic ringed seal primary 
prey resources) (e.g., Kortsch et al. 2015, Alabia et al. 2018, Holsman 
et al. 2018, Thorson et al. 2019, Huntington et al. 2020). Declines in 
the extent and timing of sea ice cover may also lead to increased 
shipping activity (discussed below) and other changes in anthropogenic 
activities, with the potential for increased risks to the habitat 
features essential to Arctic ringed seal conservation (Kelly et al. 
2010a). The best scientific data available do not allow us to identify 
a causal linkage between any particular single source of GHG emissions 
and identifiable effects on the sea ice and primary prey features 
essential to the conservation of the Arctic ringed seal. Regardless, 
given that the quality and quantity of these essential features, in 
particular sea ice, may be diminished by the effects of climate change, 
we conclude that special management considerations or protection may be 
necessary, either now or in the future, although the exact focus and 
nature of that management is presently undeterminable.

Oil and Gas Activity

    Oil and gas exploration, development, and production activities in 
the U.S. Arctic may include: 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 
the essential features of Arctic ringed seal critical habitat, 
primarily through pollution (particularly in the event of a large oil 
spill), noise, and physical alteration of the species' habitat.
    Large oil spills (considered in this section to be spills of 
relatively great size, consistent with common usage of the term) are 
generally considered to be the greatest threat associated with oil and 
gas activities in the Arctic marine environment (Arctic Monitoring and 
Assessment Programme (AMAP) 2007). In contrast to spills on land, large 
spills at sea, especially when ice is present, are difficult to contain 
or clean up (National Research Council 2014, Wilkinson et al. 2017). 
Responding to a sizeable spill in the Arctic environment would be 
particularly challenging. 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 or in ice-covered waters are the most challenging to deal 
with due to, among other factors, limitations on the effectiveness of 
current containment and recovery technologies when sea ice is present. 
The extreme depth and the pressure that oil was under during the 2010 
oil blowout at the Deepwater Horizon well in the Gulf of Mexico may not 
exist in the shallow continental shelf waters of the Beaufort and 
Chukchi seas. Nevertheless, the difficulties experienced in stopping 
and containing the Deepwater Horizon blowout, where environmental 
conditions, available infrastructure, and response preparedness were 
comparatively good, point toward even greater challenges in containing 
and cleaning a large spill in a much more environmentally severe and 
geographically remote Arctic 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 (AMAP 2007). Data on 
large spills (e.g., operational discharges, spills from pipelines, 
blowouts) in Arctic waters are limited because oil exploration and 
production there has been limited. The Bureau of Ocean Energy 
Management (BOEM) (BOEM 2011) estimated the chance of one or more oil 
spills greater than or equal to 1,000 barrels occurring if development 
were to take place in the Beaufort Sea or Chukchi Sea Planning Areas as 
26 percent for the Beaufort Sea over the estimated 20 years of 
production and development, and 40 percent for the Chukchi Sea over the 
estimated 25 years of production and development.
    Icebreaking vessels, which may be used for in-ice seismic surveys 
or to manage ice near exploratory drilling ships, also have the 
potential to affect the sea ice essential features of Arctic ringed 
seal critical habitat through physical alteration of the sea ice (also 
see Marine Shipping and Transportation section). Other examples of 
activities associated with oil and gas activities that may physically 
alter the essential sea ice features include construction and 
maintenance of offshore ice roads, ice pads, and camps; as well as 
other offshore through-ice activities such as trenching and 
installation of pipelines. In addition, there is evidence that noise 
associated with activities such as seismic surveys can result in 
behavioral and other effects on fishes and invertebrate species 
(Carroll et al. 2017, Slabbekoorn et al. 2019), although the available 
data on such effects are currently limited, in particular for 
invertebrates (Hawkins et

[[Page 1463]]

al. 2015, Hawkins and Popper 2017), and the nature of potential effects 
specifically on the primary prey resources of Arctic ringed seals are 
unclear.
    In summary, a large oil spill could render areas containing the 
identified essential features unsuitable for use by Arctic ringed 
seals. In such an event, sea ice habitat suitable for whelping, 
nursing, and/or for basking and molting could be oiled. The primary 
prey resources could also become contaminated, experience mortality, or 
be otherwise adversely affected by spilled oil. In addition, 
disturbance effects (both physical alteration of habitat and acoustic 
effects) could alter the quality of the essential features of Arctic 
ringed seal critical habitat, or render habitat unsuitable. We conclude 
that the essential features of the habitat of the Arctic ringed seal 
may require special management considerations or protection in the 
future to minimize the risks posed to these features by oil and gas 
exploration, development, and production.

Marine Shipping and Transportation

    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 and in 
extension of the navigation season in surrounding seas (Brigham and 
Ellis 2004, Arctic Council 2009). Marine traffic along the western and 
northern coasts of Alaska includes tug, towing, and cargo vessels, 
tankers, research and government vessels, vessels associated with oil 
and gas exploration and development, fishing vessels, and cruise ships 
(Adams and Silber 2017, U.S. Committee on the Marine Transportation 
System 2019). Automatic Identification System data indicate that the 
number of unique vessels operating annually in U.S. waters north of the 
Bering Sea in 2015 to 2017 increased 128 percent over the number 
recorded in 2008 (U.S. Committee on the Marine Transportation System 
2019). 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 transit routes and a lengthening of the potential navigation 
season, and a continuing increase in vessel traffic (Khon et al. 2010, 
Smith and Stephenson 2013, Stephenson et al. 2013, Huntington et al. 
2015b, Melia et al. 2016, Aksenov et al. 2017, Khon et al. 2017). For 
instance, analysis of four potential growth scenarios (ranging from 
reduced activity to accelerated growth) suggests from 2008 to 2030, the 
number of unique vessels operating in U.S. waters north of 60[deg] N 
(i.e., northern Bering sea and northward) may increase by 136 to 346 
percent (U.S. Committee on the Marine Transportation System 2019).
    The fact that nearly all vessel traffic in the Arctic, with the 
exception of icebreakers, purposefully avoids areas of ice, and 
primarily occurs during the ice-free or low-ice seasons, helps to 
mitigate the risks of shipping to the essential habitat features 
identified for Arctic ringed seals. However, icebreakers pose greater 
risks to these features since 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. Furthermore, new classes of ships are being designed 
that serve the dual roles of both tanker/carrier and icebreaker (Arctic 
Council 2009). Therefore, if icebreaking activities increase in the 
Arctic in the future, as expected, the likelihood of negative impacts 
(e.g., habitat alteration and risk of oil spills) occurring in ice-
covered areas where Arctic ringed seals reside will likely also 
increase. We are not aware of any data currently available on the 
effects of icebreaking on the habitat of Arctic ringed seals during the 
reproductive and molting periods. Although impacts of icebreaking are 
likely to vary between species depending on a variety of factors, we 
note that Wilson et al. (2017) demonstrated the potential for impacts 
of icebreaking on Caspian seal (Pusa caspica) mothers and pups, 
including displacement, break-up of whelping and nursing habitat, and 
vessel collisions with mothers or pups. The authors noted that while 
pre-existing shipping channels were used by seals as artificial leads, 
which expanded access to whelping habitat, seals that whelp on the edge 
of such leads are vulnerable to vessel collision and repeated 
disturbance.
    In addition to the potential effects of icebreaking on the 
essential features, the maritime shipping industry transports various 
types of petroleum products, both as fuel and cargo. In particular, if 
increased shipping involves the tanker transport of crude oil or oil 
products, there would be an increased risk of spills (Arctic Climate 
Impact Assessment 2005, U.S. Arctic Research Commission 2012). Similar 
to oil and gas activities, the most significant threat posed by 
shipping activities is considered to be the accidental or illegal 
discharge of oil or other toxic substances carried by ships (Arctic 
Council 2009).
    Vessel discharges associated with normal operations, including 
sewage, grey water, and oily wastes are expected to increase as a 
result of increasing marine shipping and transportation in Arctic 
waters (Arctic Council 2009, Parks et al. 2019), which could affect the 
primary prey of Arctic ringed seals. Increases in marine shipping and 
transportation and other vessel traffic is also introducing greater 
levels of underwater noise (Arctic Council 2009, Moore et al. 2012), 
with the potential for behavioral and other effects in fishes and 
invertebrates (Slabbekoorn et al. 2010, Hawkins and Popper 2017, Popper 
and Hawkins 2019), although there are substantial gaps in the 
understanding of such effects, in particular for invertebrates (Hawkins 
et al. 2015, Hawkins and Popper 2017), and the nature of potential 
effects specifically on the primary prey of Arctic ringed seals are 
unclear.
    We conclude that the essential features of the habitat of the 
Arctic ringed seal may require special management considerations or 
protection in the future to minimize the risks posed by potential 
shipping and transportation activities because: (1) Physical alteration 
of sea ice by icebreaking activities could reduce the quantity and/or 
quality of the sea ice essential features; (2) in the event of an oil 
spill, sea ice essential for birth lairs and/or for basking and molting 
could become oiled; and (3) the quantity and/or quality of the primary 
prey resources could be diminished as a result of spills, vessel 
discharges, and noise associated with shipping, transportation, and 
ice-breaking activities.

Commercial Fisheries

    The specific area identified in this revised proposed rule as 
meeting the definition of critical habitat for the Arctic ringed seal 
overlaps with the Arctic Management Area and the Bering Sea and 
Aleutian Islands Management Area identified by the North Pacific 
Fishery Management Council. No commercial fishing is permitted within 
the Arctic Management Area due to insufficient data to support the 
sustainable management of a commercial fishery there. However, as 
additional information becomes available, commercial fishing may be 
allowed in this management area. Two of the primary Arctic ringed seal 
prey species identified as essential to the species' conservation--
Arctic cod and saffron cod--have been identified as likely initial 
target species for commercial fishing in the Arctic

[[Page 1464]]

Management Area in the future (North Pacific Fishery Management Council 
2009).
    In the northern portion of the Bering Sea and Aleutian Islands 
Management Area, commercial fisheries overlap with the southernmost 
portion of the proposed critical habitat. Portions of the proposed 
critical habitat also overlap with certain state commercial fisheries 
management areas. Commercial catches from waters of the specific area 
identified as containing the features essential to the conservation of 
the Arctic ringed seal primarily include: Pacific halibut (Hippoglossus 
stenolepis), several other flatfish species, Pacific cod (Gadus 
macrocephalus), several crab species, walleye pollock (Theragra 
chalcogramma), and several salmon species.
    Commercial fisheries may affect the primary prey resources 
identified as essential to the conservation of the Arctic ringed seal, 
through removal of prey biomass and potentially through modification of 
benthic habitat by fishing gear that contacts the seafloor. Given the 
potential changes in commercial fishing that may occur with the 
expected increasing length of the open-water season and distribution 
shifts of some economically valuable species responding to climate 
change (e.g., Stevenson and Lauth 2019, Thorson et al. 2019, Spies et 
al. 2020), we conclude that the primary prey resources essential 
feature may require special management considerations or protection in 
the future to address potential adverse effects of commercial fishing 
on this feature.

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA authorizes the designation of 
specific areas outside the geographical area occupied by the species, 
if those areas are determined to be essential for the conservation of 
the species. Our regulations at 50 CFR 424.12(b)(2) require that we 
first evaluate areas occupied by the species, and only consider 
unoccupied areas to be essential where a critical habitat designation 
limited to geographical areas occupied would be inadequate to ensure 
the conservation of the species. Because Arctic ringed seals are 
considered to occupy their entire historical range that falls within 
U.S. jurisdiction, we find that there are no unoccupied areas within 
U.S. jurisdiction that are essential to their conservation.

Application of ESA Section 4(a)(3)(B)(i)

    Section 4(a)(3)(B)(i) of the ESA precludes designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense (DOD), or designated for its use, that are 
subject to an Integrated Natural Resources Management Plan (INRMP) 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation. See 
16 U.S.C. 1533(a)(3)(B)(i); 50 CFR 424.12(h). Where these standards are 
met, the relevant area is ineligible for consideration as potential 
critical habitat. The regulations implementing the ESA set forth a 
number of factors to guide consideration of whether this standard is 
met, including the degree to which the plan will protect the habitat of 
the species (50 CFR 424.12(h)(4)). This process is separate and 
distinct from the analysis governed by section 4(b)(2) of the ESA, 
which directs us to consider the economic impact, the impact on 
national security, and any other relevant impact of designation, and 
affords the Secretary discretion to exclude particular areas if the 
benefits of exclusion outweigh the benefits of inclusion of such areas. 
See 16 U.S.C. 1533(b)(2).
    Before publication of this revised proposed rule, we contacted DOD 
(Air Force and Navy) and requested information on any facilities or 
managed areas that are subject to an INRMP and are located within areas 
that could potentially be designated as critical habitat for the Arctic 
ringed seal. In response to our request, the Air Force provided 
information regarding twelve radar sites with an INRMP in place, 10 of 
which (7 active and 3 inactive) are located adjacent to the area under 
consideration for designation as critical habitat: Barter Island Long 
Range Radar Site (LRRS), Cape Lisburne LRRS, Cape Romanzof, LRRS, 
Kotzebue LRRS, Oliktok LRRS, Point Barrow LRRS, Tin City LRRS, Bullen 
Point Short Range Radar Site (SRRS), Point Lay LRRS, and Point Lonely 
SRRS. The Air Force requested exemption of these radar sites pursuant 
to section 4(a)(3)(B)(i) of the ESA. Based on our review of the INRMP 
(draft 2020 update), the area being considered for designation as 
critical habitat, all of which occurs seaward of the MLLW line, does 
not overlap with DOD lands. Therefore, we conclude that there are no 
properties owned, controlled, or designated for use by DOD that are 
subject to ESA section 4(a)(3)(B)(i) for this revised proposed critical 
habitat designation, and thus the exemptions requested by the Air Force 
are not necessary because no critical habitat would be designated in 
those radar sites.

Analysis of Impacts Under Section 4(b)(2) of the ESA

    Section 4(b)(2) of the ESA requires the Secretary to designate 
critical habitat for threatened and endangered species on the basis of 
the best scientific data available after taking into consideration the 
economic impact, the impact on national security, and any other 
relevant impact, of specifying any particular area as critical habitat. 
Regulations at 50 CFR 424.19(b) also specify that the Secretary will 
consider the probable impacts of the designation at a scale that the 
Secretary determines to be appropriate, and that such impacts may be 
qualitatively or quantitatively described. The Secretary is also 
required to compare impacts with and without the designation (50 CFR 
424.19(b)). In other words, we are required to assess the incremental 
impacts attributable to the critical habitat designation relative to a 
baseline that reflects existing regulatory impacts in the absence of 
the critical habitat.
    Section 4(b)(2) also describes an optional process by which the 
Secretary may go beyond the mandatory consideration of impacts and 
weigh the benefits of excluding any particular area (that is, avoiding 
the economic, national security, or other relevant impacts) against the 
benefits of designating it (primarily, the conservation value of the 
area). If the Secretary concludes that the benefits of excluding 
particular areas outweigh the benefits of designation, the Secretary 
may exclude the particular area(s) so long as the Secretary concludes 
on the basis of the best available scientific and commercial 
information that the exclusion will not result in extinction of the 
species (16 U.S.C. 1533(b)(2)). NMFS and the U.S. Fish and Wildlife 
Service have adopted a joint policy setting out non-binding guidance 
explaining generally how we exercise our discretion under 4(b)(2). See 
Policy Regarding Implementation of Section 4(b)(2) of the Endangered 
Species Act (``4(b)(2) policy,'' 81 FR 7226, February 11, 2016).
    While section 3(5) of the ESA defines critical habitat as 
``specific areas,'' section 4(b)(2) requires the agency to consider the 
impacts of designating any ``particular area.'' Depending on the 
biology of the species, the characteristics of its habitat, and the 
nature of the impacts of designation, ``particular'' areas may be--but 
need not necessarily be--delineated so that they

[[Page 1465]]

are the same as the already identified ``specific'' areas of potential 
critical habitat. For the reasons set forth below, we have exercised 
the discretion delegated to us by the Secretary to conduct an exclusion 
analysis based on national security impacts with respect to a 
particular area north of the Beaufort Sea shelf that meets the 
definition of critical habitat for the Arctic ringed seal, and we are 
proposing to exclude this area from the designation because we have 
concluded that the benefits of exclusion outweigh the benefits of 
inclusion.
    The primary impacts of a critical habitat designation arise from 
the ESA section 7(a)(2) requirement that Federal agencies ensure that 
their actions are not likely to result in the destruction or adverse 
modification of critical habitat (i.e., adverse modification standard). 
Determining these impacts is complicated by the fact that section 
7(a)(2) contains the overlapping requirement that Federal agencies 
ensure that their actions are not likely to jeopardize the species' 
continued existence. One incremental impact of critical habitat 
designation is the extent to which Federal agencies change their 
proposed actions to ensure they are not likely to adversely modify 
critical habitat, beyond any changes they would make to ensure actions 
are not likely to jeopardize the continued existence of the species. 
Additional impacts of critical habitat designation include any state 
and/or local protection that may be triggered as a direct result of 
designation (we did not identify any such impacts for this proposed 
designation), and benefits that may arise from education of the public 
to the importance of an area for species conservation.
    In determining the impacts of designation, we focused on the 
incremental change in Federal agency actions as a result of critical 
habitat designation and the adverse modification standard (see Ariz. 
Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1172-74 (9th Cir. 
2010) (holding that the U.S. Fish and Wildlife Service permissibly 
attributed the economic impacts of protecting the northern spotted owl 
as part of the baseline and was not required to factor those impacts 
into the economic analysis of the effects of the critical habitat 
designation)). We analyzed the impacts of this designation based on a 
comparison of conditions with and without the designation of critical 
habitat for the Arctic ringed seal. The ``without critical habitat'' 
scenario represents the baseline for the analysis. It includes process 
requirements and habitat protections already extended to the Arctic 
ringed seal under its ESA listing and under other Federal, state, and 
local regulations. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the Arctic ringed seal.
    Our analysis for this revised proposed rule is described in detail 
in the associated Draft Impact Analysis Report that is available for 
public review and comment (see Public Comments Solicited). This 
analysis assesses the incremental costs and benefits that may arise due 
to the critical habitat designation, with economic costs estimated over 
the next 10 years. We chose the 10-year timeframe because it is lengthy 
enough to reflect the planning horizon for reasonably predicting future 
human activities, yet it is short enough to allow reasonable 
projections of changes in use patterns in an area, as well as of 
exogenous factors (e.g., world supply and demand for petroleum, U.S. 
inflation rate trends) that may be influential. This timeframe is 
consistent with guidance provided in Office of Management and Budget 
(OMB) Circular A-4 (OMB 2003, 2011). We recognize that economic costs 
of the designation are likely to extend beyond the 10-year timeframe of 
the analysis, though we have no information indicating that such costs 
in subsequent years would be different from those projected for the 
first 10-year period. Although not quantified or analyzed in detail due 
to the high level of uncertainty regarding longer-term effects, the 
Draft Impact Analysis Report includes a discussion of the potential 
types of costs and benefits that may accrue beyond the 10-year time 
window of the analysis.
    Below, we summarize our analysis of the impacts of designating the 
specific area identified in this revised proposed rule as meeting the 
definition of critical habitat for the Arctic ringed seal. Additional 
detail is provided in the Draft Impact Analysis Report prepared for 
this revised proposed rule.

Benefits of Designation

    We expect that Arctic ringed seals will increasingly experience the 
ongoing loss of sea ice and changes in ocean conditions associated with 
climate change, and the significance of other habitat threats will 
likely increase as a result. As noted above, the primary benefit of a 
critical habitat designation--and the only regulatory consequence--
stems from the ESA section 7(a)(2) requirement that all Federal 
agencies ensure that their actions are not likely to destroy or 
adversely modify the designated habitat. This benefit is in addition to 
the section 7(a)(2) requirement that all Federal agencies ensure that 
their actions are not likely to jeopardize listed species' continued 
existence. Another benefit of critical habitat designation is that it 
provides specific notice of the areas and features essential to the 
conservation of the Arctic ringed seal. This information will focus 
future ESA section 7 consultations on key habitat attributes. By 
identifying the specific areas where the features essential to the 
conservation of the Arctic ringed seal occur, there may also be 
enhanced awareness by Federal agencies and the general public of 
activities that might affect those essential features. The designation 
of critical habitat can also inform Federal agencies regarding the 
habitat needs of Arctic ringed seals, which may facilitate using their 
authorities to support the conservation of this species pursuant to ESA 
section 7(a)(1), including to design proposed projects in ways that 
minimize adverse effects to critical habitat.
    In addition, the critical habitat designation may result in 
indirect benefits, as discussed in detail in the Draft Impact Analysis 
Report, including education and enhanced public awareness, which may 
help focus and contribute to conservation efforts for the Arctic ringed 
seal and its habitat. For example, by identifying areas and features 
essential to the conservation of the Arctic ringed seal, complementary 
protections may be developed under state or local regulations or 
voluntary conservation plans. These other forms of benefits may be 
economic in nature (whether market or non-market, consumptive, non-
consumptive, or passive), educational, cultural, or sociological, or 
they may be expressed through beneficial changes in the ecological 
functioning of the species' habitat, which itself yields ancillary 
welfare benefits (e.g., improved quality of life) to the region's human 
population. For example, because the critical habitat designation is 
expected to result in enhanced conservation of the Arctic ringed seal 
over time, residents of the region who value these seals, such as 
subsistence users, are expected to experience indirect benefits. As 
another example, the geographic area identified in this revised 
proposed rule as meeting the definition of critical habitat for the 
Arctic ringed seal overlaps substantially with the range of the polar 
bear in the United States, and the Arctic ringed seal is the primary 
prey species of the polar bear, so the designation may also provide 
indirect conservation benefits to the polar bear. Indirect conservation 
benefits may also

[[Page 1466]]

extend to other co-occurring species, such as the Pacific walrus 
(Odobenus rosmarus divergens), the Beringia DPS bearded seal, and other 
seal species.
    It is not presently feasible to monetize, or even quantify, each 
component part of the benefits accruing from the designation of 
critical habitat for the Arctic ringed seal. Therefore, we augmented 
the quantitative measurements that are summarized here and discussed in 
detail in the Draft Impact Analysis Report with qualitative and 
descriptive assessments, as provided for under 50 CFR 424.19(b) and in 
guidance set out in OMB Circular A-4. Although we cannot monetize or 
quantify all of the incremental benefits of the critical habitat 
designation, we conclude that they are not inconsequential.

Economic Impacts

    Direct economic costs of the critical habitat designation accrue 
primarily through implementation of section 7(a)(2) of the ESA in 
consultations with Federal agencies to ensure that their proposed 
actions are not likely to destroy or adversely modify critical habitat. 
Those economic impacts may include both administrative costs and costs 
associated with project modifications. At this time, on the basis of 
how protections are currently implemented for Arctic ringed seals under 
the Marine Mammal Protection Act (MMPA) and as a threatened species 
under the ESA, we do not anticipate that additional requests for 
project modifications will result specifically from this designation of 
critical habitat. In other words, the critical habitat designation is 
not likely to result in more requested project modifications because 
our section 7 consultations on potential effects to Arctic ringed seals 
and our incidental take authorizations for Arctic activities under 
section 101(a) of the MMPA both typically address habitat-associated 
effects to the seals even in the absence of a critical habitat 
designation. As a result, the direct incremental costs of this critical 
habitat designation are expected to be limited to the additional 
administrative costs of considering Arctic ringed seal critical habitat 
in future section 7 consultations.
    To identify the types of Federal activities that may affect 
critical habitat for the Arctic ringed seal, and therefore would be 
subject to the ESA section 7 adverse modification standard, we examined 
the record of section 7 consultations for 2013 to 2019 to identify 
Federal activities that occur within the specific area being considered 
as critical habitat for the Arctic ringed seal and that may affect the 
essential features of the critical habitat. These activities include 
oil and gas related activities, dredge mining, navigation dredging, in-
water construction, commercial fishing, oil spill response, and certain 
military activities. We projected the occurrence of these activities 
over the timeframe of the analysis (the next 10 years) using the best 
available information on planned activities and the frequency of recent 
consultations for particular activity types. Notably, all of the 
projected future Federal actions that may trigger an ESA section 7 
consultation due to the potential to affect one or more of the 
essential habitat features also have the potential to affect Arctic 
ringed seals. In other words, none of the activities we identified 
would trigger a consultation solely on the basis of the critical 
habitat designation. We recognize there is inherent uncertainty 
involved in predicting future Federal actions that may affect the 
essential features of Arctic ringed seal critical habitat. We 
specifically seek comments and information regarding the types of 
activities that are likely be subject to section 7 consultation as a 
result of the proposed designation, and we will consider any relevant 
information received during the comment period in developing the 
economic analysis supporting the final rule (see Public Comment 
Solicited section).
    We expect that the majority of future ESA section 7 consultations 
analyzing potential effects on the proposed essential habitat features 
will involve NMFS and BOEM authorizations and permitting of oil and gas 
related activities. In assessing costs associated with these 
consultations, we took a conservative approach by estimating that 
future formal and informal consultations addressing these activities 
would be more complex than for other activities, and would therefore 
incur higher third party (i.e., applicant/permittee) incremental 
administrative costs per consultation to consider effects to Arctic 
ringed seal critical habitat (see Draft Impact Analysis Report). These 
higher third party costs may not be realized in all cases because the 
administrative effort required for a specific consultation depends on 
factors such as the location, timing, nature, and scope of the 
potential effects of the proposed action on the essential features. 
There is also considerable uncertainty regarding the timing and extent 
of future oil and gas exploration and development in Alaska's Outer 
Continental Shelf (OCS) waters, as indicated by Shell's 2015 withdrawal 
from exploratory drilling in the Chukchi Sea and BOEM's 2017-2022 OCS 
Oil and Gas Leasing Program. Although NMFS completed formal 
consultations for oil and gas exploration activities in the Chukchi Sea 
in all but two years between 2006 and 2015, no such activities or 
related consultations with NMFS have occurred since that time.
    As detailed in the Draft Impact Analysis Report, the total 
incremental costs associated with designating the entire area 
identified in this revised proposed rule as meeting the definition of 
critical habitat for the Arctic ringed seal over the next 10 years, in 
discounted present value terms, are estimated to be $800,000 
(discounted at 7 percent). In annual terms, the estimated range of 
discounted incremental costs is $58,000 to $106,000. About 80 percent 
of these incremental costs are expected to accrue from ESA section 7 
consultations associated with oil and gas related activities in the 
Chukchi and Beaufort seas and adjacent onshore areas. Although not 
quantifiable at this time, the Draft Impact Analysis Report 
acknowledges that the oil and gas industry may also incur indirect 
costs associated with the critical habitat designation if future third-
party litigation over specific section 7 consultations creates delays 
or other sources of regulatory uncertainty.
    We have preliminarily concluded that the potential economic impacts 
associated with the critical habitat designation are modest both in 
absolute terms and relative to the level of economic activity expected 
to occur in the affected area, which is primarily associated with oil 
and gas activities that may occur in the Beaufort and Chukchi seas. As 
a result, and in light of the benefits of critical habitat designation 
discussed above and in the Draft Impact Analysis Report, we are not 
proposing to exercise our discretion to exclude any particular area 
from the critical habitat designation by evaluating whether the 
benefits of excluding such area based on economic impacts outweighs the 
benefits of including such area.

National Security Impacts

    Section 4(b)(2) of the ESA also requires consideration of national 
security impacts. As noted in the Application of ESA Section 
4(a)(3)(B)(i) section above, before publication of our 2014 proposed 
rule, we contacted DOD regarding any potential impacts of designating 
critical habitat for the Arctic ringed seal on military operations. In 
a letter dated June 3, 2013, the DOD Regional Environmental Coordinator 
indicated that no impacts on national

[[Page 1467]]

security were foreseen from such a designation. As a result, in that 
proposed rule we did not identify any direct impacts from the critical 
habitat designation on activities associated with national security.
    Following publication of our 2014 proposed rule, by a letter dated 
April 17, 2015, DOD indicated that upon further review, it had 
identified national security concerns with the designation due to 
overlap of the proposed critical habitat with the area north of Prudhoe 
Bay to the Canadian border extending seaward from approximately 125 to 
200 nm that is used by the U.S. Navy for training and testing 
activities. DOD requested that NMFS exclude this area from the critical 
habitat designation due to national security impacts, expressing the 
view that designation of this area will impact national security if 
training and testing activities are prohibited or severely degraded, as 
detailed in a comment letter from the Navy dated March 30, 2015. More 
recently, by letter dated March 17, 2020, the Navy reiterated its 
request for this exclusion due to national security impacts, but 
modified the description of the particular area to extend seaward from 
approximately 100 to 200 nm (noting that ice conditions have required a 
shift closer to shore).
    The Navy indicated in its written communications that it conducts 
Arctic training and testing exercises, referred to by the Navy as Ice 
Exercises (ICEXs), on and below the sea ice within the particular area 
requested for exclusion. ICEXs and the accompanying base camps are 
established anywhere from 100 to 200 nm north of Prudhoe Bay, Alaska. 
These exercises are planned to occur every 2 years and typically last 
25 to 45 days. ICEX camps include approximately 15 to 20 temporary 
shelters which support 30 to 65 personnel. Training and testing 
activities include: Submarine activities; submarine surfacing, in which 
submarines avoid pressure ridges and conduct surfacings in first year 
ice or in polynyas; aircraft operations; building of runways; and other 
on-ice activities. The Navy noted that ICEX activities alter the ice by 
creating holes to deploy training and testing equipment and surfacing 
submarines. The Navy explained that due to the need for stable ice, 
flights are conducted immediately prior to buildup of the ICEX camp to 
determine the final location.
    The Navy also noted that the Office of Naval Research conducts 
research testing activities in the deep waters of the Beaufort Sea with 
acoustic sources and the use of icebreaking ships to deploy and 
retrieve these sources, which it plans to continue in the future, and 
expressed concern that the designation of critical habitat could impact 
these activities. The Navy indicated that it also conducts other 
training and testing activities in the Arctic region in support of 
gaining and maintaining military readiness in this region, and expects 
additional training and testing activities to occur in this region. The 
activities may be similar to those identified for ICEXs, and likely 
also would include vessel movements, icebreaking, and support transport 
by air and sea. Testing activities may include air platform/vehicle 
tests, missile testing, gunnery testing, and anti-submarine warfare 
tracking testing.
    The Navy expressed the concern that the critical habitat may impact 
national security if training and testing activities are prohibited or 
are required to be mitigated (for the protection of critical habitat) 
to the point where training and testing value is severely degraded, or 
if the Navy is unable to access certain locations within the Arctic 
region. The Navy indicated that if the critical habitat designation 
maintains the same boundaries identified in our 2014 proposed 
designation, it does not foresee a way that its training and testing 
activities will be able to be conducted without significant impacts on 
those activities. In support of this assertion the Navy noted that 
through consultation with NMFS under section 7 of the ESA for training 
on the east coast of the United States, the Navy agreed to restrict 
certain training activities in North Atlantic right whale critical 
habitat during the calving season, noting that those training 
activities can be conducted in nearby areas that are not designated as 
critical habitat during the calving season. The Navy indicated that due 
to the size of the area proposed in 2014 as critical habitat for the 
Arctic ringed seal and the uniqueness of Arctic conditions, the Navy 
would not be able to shift its training activities to other areas or to 
different times of the year.
    In addition to the information provided by the Navy, by letter 
dated April 30, 2020, the Air Force provided information concerning its 
activities at radar sites located adjacent to the area under 
consideration for designation as critical habitat (relevant sites 
identified above in the Application of ESA Section 4(a)(3)(B)(i) 
section). The Air Force requested that we consider excluding critical 
habitat near these sites under section 4(b)(2) of the ESA due to 
impacts on national security. Although we are not proposing to exempt 
the radar sites pursuant to section 4(a)(3)(B)(i) of the ESA, as 
discussed above, here we consider whether to propose excluding critical 
habitat located adjacent to these sites under section 4(b)(2).
    The Air Force noted that annual fuel and cargo resupply activities 
occur at these radar sites primarily in the summer and installation 
beaches are used for offload. The Air Force indicated that coastal 
operations at these installations are limited, and when barge 
operations occur, protective measures are implemented per the Polar 
Bear and Pacific Walrus Avoidance Plan (preliminary final 2020) 
associated with the INRMP in place for these sites. The Air Force 
discussed that it also conducts sampling and monitoring at these sites 
as part of the department's Installation Restoration Program, and 
conducts larger scale contaminant or debris removal in some years that 
can require active disturbance of the shoreline. Coastal barge 
operations are a feature of both monitoring and removal actions.
    Federal agencies have an existing obligation to consult with NMFS 
under section 7(a)(2) of the ESA to ensure the activities they fund or 
carry out are not likely to jeopardize the continued existence of the 
Arctic ringed seal, regardless of whether or where critical habitat is 
designated for the species. The activities described in the Air Force's 
exclusion request are localized and small in scale, and it is unlikely 
that modifications to these activities would be needed to address 
impacts to critical habitat beyond any modifications that may be 
necessary to address impacts to Arctic ringed seals. We therefore 
anticipate that the time and costs associated with consideration of the 
effects of future Air Force actions on Arctic ringed seal critical 
habitat under section 7(a)(2) of the ESA would be limited if any, and 
the consequences for the Air Force's activities, even if we do not 
exempt or exclude the requested areas from critical habitat 
designation, would be negligible.
    As a result, and in light of the benefits of critical habitat 
designation discussed above and in the Draft Impact Analysis Report, we 
have preliminarily concluded that the benefits of exclusion do not 
outweigh the benefits of designation and are therefore not proposing to 
exercise our discretionary authority to exclude these particular areas 
pursuant to section 4(b)(2) of the ESA with respect to the Air Force's 
request based on national security impacts. However, given the specific 
national security concerns identified by the Navy, below we provide an 
analysis of our decision to exercise our discretionary authority under 
section 4(b)(2) of the ESA to propose excluding

[[Page 1468]]

the area requested by the Navy based on national security impacts. We 
will continue to coordinate with DOD regarding the identification of 
potential national security impacts that could result from the critical 
habitat designation to further inform our determinations regarding 
exclusions from the designation under section 4(b)(2) based on national 
security impacts.

Other Relevant Impacts

    Finally, under ESA section 4(b)(2) we consider any other relevant 
impacts of critical habitat designation to inform our decision as to 
whether to exclude any areas. For example, we may consider potential 
adverse effects on existing management or conservation plans that 
benefit listed species, and we may consider potential adverse effects 
on tribal lands or trust resources. In preparing this revised proposed 
designation, we have not identified any such management or conservation 
plans, tribal lands or resources, or anything else that would be 
adversely affected by the critical habitat designation. Some Alaska 
Native organizations and tribes have expressed concern that the 
critical habitat designation might restrict subsistence hunting of 
ringed seals or other marine mammals, such that important hunting areas 
should be considered for exclusion, but no restrictions on subsistence 
hunting are associated with this designation. Accordingly, we are not 
exercising our discretion to conduct an exclusion analysis pursuant to 
section 4(b)(2) of the ESA based on other relevant impacts.

Proposed Exclusion Based on National Security Impacts

    Based on the written information provided by the Navy (summarized 
in the National Security Impacts section above), and clarifications 
provided through subsequent communications with the Navy regarding the 
location of the particular area requested for exclusion, we evaluated 
whether there was a reasonably specific justification indicating that 
designating certain areas as critical habitat would have a probable 
incremental impact on national security. In accordance with our 4(b)(2) 
policy (81 FR 7226, February 11, 2016), when the Navy provides a 
reasonably specific justification, we will defer to its expert judgment 
as to: (1) Whether activities on its lands or waters, or its activities 
on other lands or waters, have national security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected by 
the critical habitat designation. In conducting our review of this 
exclusions request under section 4(b)(2) of the ESA, we also gave great 
weight to the Navy's national security concerns. To weigh the national 
security impacts against conservation benefits of a potential critical 
habitat designation, we considered the following: (1) The size of the 
area requested for exclusion compared with the total size of the 
specific area that meets the definition of critical habitat for the 
Arctic ringed seal; (2) the conservation value of the area requested 
for exclusion; (3) the likelihood that the Navy's activities would 
affect the area requested for exclusions and trigger ESA section 7 
consultations, and the likelihood that Navy activities would need to be 
modified to avoid adverse modification or destruction of critical 
habitat; and (4) the likelihood that other Federal actions may occur 
that would no longer be subject to the ESA's critical habitat 
provisions if the particular area were excluded from the designation.
    The area requested for exclusion comprises approximately 12 percent 
of the marine habitat that meets the definition of critical habitat for 
the Arctic ringed seal, and approximately 41 percent of the portion of 
this marine habitat north of the Beaufort Sea shelf (north of the 200-m 
isobath). As noted by the Navy in its exclusion request, and as 
discussed above in the Distribution and Habitat Use and Specific Areas 
Containing the Essential Features sections, data currently available on 
ringed seal use of the requested exclusion area, particularly for the 
northernmost portion, are limited. As we discussed above (see Specific 
Areas Containing the Essential Features section), aerial surveys of 
ringed seals during the periods of reproduction and molting have been 
conducted for the most part over the continental shelf within about 25 
to 40 km of the Alaska coast. However, incidental sightings of ringed 
seals were documented up to about 100 km north of the Beaufort Sea 
shelf during bowhead whale aerial surveys conducted during spring and 
early summer. Although we are not aware of any similar data for U.S. 
waters farther north, the trend toward areas of earlier spring ice 
retreat lends support for our decision to propose defining the northern 
boundary of the specific area that meets the definition of critical 
habitat for the Arctic ringed seal as the outer extent of the U.S. EEZ. 
In addition, recent satellite telemetry data for ringed seals tagged on 
the Alaska coast show that during the open-water season, some of these 
seals made forays north of the Beaufort Sea shelf, including into parts 
of the area requested for exclusion (Crawford et al. 2019, Quakenbush 
et al. 2019; Alaska Department of Fish and Game (ADF&G) and North Slope 
Borough, 2019, unpublished data, Von Duyke et al. 2020). We note that 
the telemetry data for these seals are unlikely to fully reflect the 
distribution of this species in U.S. waters, for instance because, as 
discussed by Citta et al. (2018), the distribution of telemetry 
locations for tagged ringed seals is influenced by the location and 
season of tagging. Thus, although the area requested for exclusion 
contains one or more of the essential features of the Arctic ringed 
seal's critical habitat, data are limited to inform our assessment of 
the relative value of this area to the conservation of the species. 
Dive recorders indicated that foraging-type movements of some of these 
tagged seals occurred over both the continental shelf and north of the 
shelf, suggesting that both areas may be important to ringed seals 
during the open-water period. Observations of ringed seals near and 
beyond the outer extent of the U.S. EEZ in the Arctic Ocean Basin were 
also documented by marine mammal observers during a research 
geophysical survey conducted in the summer of 2010.
    The testing and training activities described in the Navy's 
exclusion request are temporally limited, localized, and small in 
scale, and it is very unlikely that modifications to these activities 
would be needed to address impacts to critical habitat beyond any 
modifications that may be necessary to address impacts to Arctic ringed 
seals. Moreover, the Navy has an existing obligation to consult with 
NMFS under section 7(a)(2) of the ESA to ensure the activities it funds 
or carries out are not likely to jeopardize the continued existence of 
the Arctic ringed seal, regardless of whether or where critical habitat 
is designated for the species. Aside from the Navy's training and 
testing activities, we are aware of few other Federal actions that 
would be expected to affect the particular area requested for 
exclusion.
    We recognize that there are limited data currently available to 
inform our evaluation of the conservation value to the Arctic ringed 
seal of the particular area requested for exclusion. Therefore, given 
the Navy's specific justification regarding potential impacts on 
national security stemming from the potential designation of critical 
habitat for the Arctic ringed seal in the particular area requested for 
exclusion, and the fact that few other Federal actions are

[[Page 1469]]

expected to occur that would no longer be subject to consideration of 
effects on Arctic ringed seal critical habitat if the particular area 
were excluded from the designation, we have concluded that the benefits 
of excluding this particular area due to national security impacts 
outweigh the benefits of designating this area as critical habitat for 
the Arctic ringed seal. Moreover, failure to designate this area as 
critical habitat is not expected to result in the extinction of the 
species because the area is small in comparison to the entirety of the 
proposed critical habitat, we have no reason to believe it is more 
valuable for Arctic ringed seals than other portions of the proposed 
critical habitat, and threats to Arctic ringed seals in this area 
(including habitat-related threats) from Federal actions would continue 
to be subject to section 7 consultations. Consequently, we are 
proposing to exclude this area from the designation of critical habitat 
for the Arctic ringed seal, and we adjusted the proposed boundaries 
accordingly. We modified the curvilinear southern boundary of the 
proposed exclusion area recommended by the Navy to simplify its 
delineation while still including the full area the Navy recommended, 
resulting in a slightly larger area (about 1 percent more area) being 
proposed for exclusion.
    As explained in the Draft Impact Analysis Report, the total 
incremental costs associated with the particular area we are proposing 
to exclude, which stem from administrative costs of adding critical 
habitat analyses to consultations on the Navy's ICEX activities over 
the next 10 years, are estimated to be $13,300 (discounted at 7 
percent). Thus, the total incremental costs associated with the revised 
proposed critical habitat designation over the next 10 years, if this 
area is excluded, are estimated to be $786,000 (discounted at 7 
percent). In annual terms, the estimated range of discounted 
incremental costs is $57,000 to $105,000.

Revised Proposed Critical Habitat Designation

    We propose to designate as critical habitat a specific area of 
marine habitat in Alaska and offshore Federal waters of the Bering, 
Chukchi, and Beaufort seas, within the geographical area presently 
occupied by the Arctic ringed seal. This critical habitat area contains 
physical or biological features essential to the conservation of Arctic 
ringed seals that may require special management considerations or 
protection. Based on national security impacts, we propose to exclude a 
particular area of marine habitat north of the Beaufort Sea shelf that 
is used by the Navy for training and testing activities because we 
determined that the benefits to national security of exclusion outweigh 
the benefits of designation. We have not identified any unoccupied 
areas that are essential to the conservation of the Arctic ringed seal, 
and thus we are not proposing any such areas for designation as 
critical habitat. In accordance with our regulations regarding critical 
habitat designation (50 CFR 424.12(c)), the map included in the 
proposed regulation, as clarified by the accompanying regulatory text, 
would constitute the official boundary of the proposed designation.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to ensure that any action authorized, funded, or carried out by 
the agency is not likely to jeopardize the continued existence of any 
threatened or endangered species or destroy or adversely modify 
designated critical habitat. Federal agencies must consult with us on 
any agency action that may affect listed species or critical habitat. 
During interagency consultation, we evaluate the agency action to 
determine whether the action is likely to adversely affect listed 
species or critical habitat. The potential effects of a proposed action 
may depend on, among other factors, the specific timing and location of 
the action relative to the seasonal presence of essential features or 
seasonal use of critical habitat by listed species for essential life 
history functions. Although the requirement to consult on an action 
that may affect critical habitat applies regardless of the season, NMFS 
addresses spatial-temporal considerations when evaluating the potential 
impacts of a proposed action during the ESA section 7 consultation 
process. For example, if an action with short-term effects is proposed 
during a time of year that sea ice is not present, we may advise that 
consequences to critical habitat are unlikely. If we conclude in a 
biological opinion pursuant to section 7(a)(2) of the ESA that the 
agency action would likely result in the destruction or adverse 
modification of critical habitat, we would recommend reasonable and 
prudent alternatives to the action that avoid that result.
    Reasonable and prudent alternatives are defined in 50 CFR 402.02 as 
alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat. NMFS may also provide with 
the biological opinion a statement containing discretionary 
conservation recommendations. Conservation recommendations are advisory 
and are not intended to carry any binding legal force.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where: (1) Critical habitat is subsequently designated; or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered (among other reasons for 
reinitiation). Consequently, some Federal agencies may request 
reinitiation of consultation or conference with us on actions for which 
consultation has been completed, if those actions may affect designated 
critical habitat for the Arctic ringed seal. Activities subject to the 
ESA section 7 consultation process include activities on Federal lands 
as well as activities requiring a permit or other authorization from a 
Federal agency (e.g., a section 10(a)(1)(B) permit from NMFS), or some 
other Federal action, including funding (e.g., Federal Highway 
Administration or Federal Emergency Management Agency funding). 
Consultation under section 7 of the ESA would not be required for 
Federal actions that do not affect listed species or designated 
critical habitat, and would not be required for actions on non-Federal 
and private lands that are not carried out, funded, or authorized by a 
Federal agency.

Activities That May Be Affected by Critical Habitat Designation

    Section 4(b)(8) of the ESA requires, to the maximum extent 
practicable, in any proposed regulation to designate critical habitat, 
an evaluation and brief description of those activities that may 
adversely modify such habitat or that may be affected by such 
designation. A variety of activities may affect Arctic ringed seal 
critical habitat and, if carried out, funded, or authorized by a 
Federal agency, may be subject to ESA section 7 consultation. Such 
activities include: In-water and coastal construction; activities that 
generate water pollution; dredging; commercial fishing; oil and gas 
exploration, development, and production; oil spill response; and

[[Page 1470]]

certain military readiness activities. As explained above, at this 
time, on the basis of how protections are currently implemented for 
Arctic ringed seals under the MMPA and as a threatened species under 
the ESA, we do not anticipate that additional requests for project 
modifications will result specifically from this proposed designation 
of critical habitat.
    Private or non-Federal entities may also be affected by the 
proposed critical habitat designation if a Federal permit is required, 
Federal funding is received, or the entity is involved in or receives 
benefits from a Federal project. These activities would need to be 
evaluated with respect to their potential to destroy or adversely 
modify Arctic ringed seal critical habitat. As noted in the Public 
Comments Solicited section below, NMFS also requests information on the 
types of non-Federal activities that may be affected by this 
rulemaking.

Public Comments Solicited

    To ensure the final action resulting from this revised proposal 
will be as accurate and effective as possible, we solicit comments and 
information from the public, other concerned government agencies, 
Alaska Native tribes and organizations, the scientific community, 
industry, non-governmental organizations, and any other interested 
parties concerning our revised proposed designation of critical habitat 
for the Arctic ringed seal. In particular, we are interested in data 
and information regarding the following: (1) The distribution and 
habitat use of Arctic ringed seals; (2) the identification, location, 
and quality of physical or biological features essential to the 
conservation of the Arctic ringed seal, including in particular, the 
delineation of the northern, southern, and shoreward boundaries of 
where one or more of these features occur; (3) the potential impacts of 
designating the proposed critical habitat, including information on the 
types of Federal activities that may trigger an ESA section 7 
consultation; (4) current or planned activities in the area proposed 
for designation and their possible impacts on the proposed critical 
habitat; (5) the potential effects of the designation on Alaska Native 
cultural practices and villages; (6) any foreseeable economic, national 
security, Tribal, or other relevant impacts resulting from the revised 
proposed designation; (7) whether any data used in the economic 
analysis needs to be updated; (8) foreseeable additional costs arising 
specifically from the designation of critical habitat for the Arctic 
ringed seal that have not been identified in the Draft Impact Analysis 
Report; (9) additional information regarding impacts on small 
businesses and federally recognized tribes not identified in the Draft 
Impact Analysis Report; and (10) whether any particular areas that we 
are proposing for critical habitat designation should be considered for 
exclusion under section 4(b)(2) of the ESA and why. For these described 
impacts or benefits, we request that the following specific information 
(if relevant) be provided to inform our ESA section 4(b)(2) analysis: 
(1) A map and description of the affected area; (2) a description of 
the activities that may be affected within the area; (3) a description 
of past, ongoing, or future conservation measures conducted within the 
area that may protect Arctic ringed seal habitat; and (4) a point of 
contact.
    You may submit your comments and information concerning this 
revised proposed rule by any one of the methods described under 
ADDRESSES above. The revised proposed rule and supporting documentation 
can be found on the Federal eRulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0114. We will consider all comments and 
information received during the reopened comment period for this 
revised proposed rule in preparing the final rule. Accordingly, the 
final decision may differ from this revised proposed rule.

References Cited

    A complete list of all references cited in this revised proposed 
rule can be found on the Federal eRulemaking Portal and is available 
upon request from the NMFS office in Juneau, Alaska (see ADDRESSES).

Classifications

National Environmental Policy Act

    We have determined that an environmental analysis as provided for 
under the National Environmental Policy Act of 1969 for critical 
habitat designations made pursuant to the ESA is not required. See 
Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1502-08 (9th Cir. 1995).

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996, whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
not-for-profit organizations, and small government jurisdictions). We 
have prepared an initial regulatory flexibility act analysis (IRFA) 
that is included as part of the Draft Impact Analysis Report for this 
revised proposed rule. The IRFA estimates the potential number of small 
businesses that may be directly regulated by this revised proposed 
rule, and the impact (incremental costs) per small entity for a given 
activity type. Specifically, based on an examination of the North 
American Industry Classification System (NAICS), this analysis 
classifies the economic activities potentially directly regulated by 
the proposed action into industry sectors and provides an estimate of 
their number in each sector, based on the applicable NAICS codes. A 
summary of the IRFA follows.
    A description of the action (i.e., revised proposed designation of 
critical habitat), why it is being considered, and its legal basis are 
included in the preamble of this revised proposed rule. This proposed 
action does not impose new recordkeeping or reporting requirements on 
small entities. The analysis did not reveal any Federal rules that 
duplicate, overlap, or conflict with the proposed action. Existing 
Federal laws and regulations overlap with the revised proposed rule 
only to the extent that they provide protection to natural resources 
within the area proposed as critical habitat generally. However, no 
existing regulations specifically prohibit destruction or adverse 
modification of critical habitat for the Arctic ringed seal.
    This revised proposed critical habitat rule does not directly apply 
to any particular entity, small or large. The regulatory mechanism 
through which critical habitat protections are enforced is section 7 of 
the ESA, which directly regulates only those activities carried out, 
funded, or permitted by a Federal agency. By definition, Federal 
agencies are not considered small entities, although the activities 
they fund or permit may be proposed or carried out by small entities. 
In some cases, small entities may participate as third parties (e.g., 
permittees, applicants, grantees) during ESA section 7 consultations 
(the primary parties being the Federal action agency and NMFS) and thus 
they may be indirectly affected by the critical habitat designation.
    Based on the best information currently available, the Federal 
actions projected to occur within the time frame of the analysis (i.e., 
the next 10 years) that may trigger an ESA section 7 consultation due 
to the potential to affect one or more of the essential

[[Page 1471]]

habitat features also have the potential to affect Arctic ringed seals. 
Thus, as discussed above, we expect that none of the activities we 
identified would trigger a consultation solely on the basis of this 
critical habitat designation; in addition, we do not anticipate that 
additional requests for project modifications will result specifically 
from this designation of critical habitat. As a result, the direct 
incremental costs of this critical habitat designation are expected to 
be limited to the additional administrative costs of considering Arctic 
ringed seal critical habitat in future section 7 consultations that 
would occur regardless based on the listing of Arctic ringed seals.
    As detailed in the Draft Impact Analysis Report, the oil and gas 
exploration, development, and production industries participate in 
activities that are likely to require consideration of critical habitat 
in ESA section 7 consultations. The Small Business Administration size 
standards used to define small businesses in these cases are: (1) An 
average of no more than 1,250 employees (crude petroleum and natural 
gas extraction industry); or (2) average annual receipts of no more 
than $41.5 million (support activities for oil and gas operations 
industry). Only two of the parties identified in the oil and gas 
category appear to qualify as small businesses based on these criteria. 
Based on past ESA section 7 consultations, the additional third party 
administrative costs in future consultations involving Arctic ringed 
seal critical habitat over the next 10 years are expected to be borne 
principally by large oil and gas operations. The estimated range of 
annual third party costs over this 10 year period is $32,000 to $59,000 
(discounted at 7 percent), virtually all of which is expected to be 
associated with oil and gas activities. It is possible that a limited 
portion of these administrative costs may be borne by small entities 
(based on past consultations, an estimated maximum of two entities). 
Two government jurisdictions with ports appear to qualify as small 
government jurisdictions (serving populations of fewer than 50,000). 
The total third party costs that may be borne by these small government 
jurisdictions over 10 years are less than $1,000 (discounted at 7 
percent) for the additional administrative effort to consider Arctic 
ringed seal critical habitat as part of a future ESA section 7 
consultation involving one port.
    As required by the RFA (as amended by the SBREFA), we considered 
alternatives to the proposed critical habitat designation for the 
Arctic ringed seal. We considered and rejected the alternative of not 
designating critical habitat for the Arctic ringed seal, because such 
an alternative does not meet our statutory requirements under the ESA. 
We also considered and rejected the alternative of designating as 
critical habitat the entire specific area that contains at least one 
identified essential feature (i.e., no areas excluded), because the 
alternative does not allow the agency to take into account 
circumstances in which the benefits of exclusion for national security 
impacts outweigh the benefits of critical habitat designation. Finally, 
through the ESA 4(b)(2) exclusion analysis process, we identified and 
selected an alternative under which a particular area is proposed for 
exclusion based on national security impacts after determining that the 
benefits of exclusion outweigh the conservation benefits to the 
species, while the remainder of the specific area that contains at 
least one identified essential feature would be designated as critical 
habitat. We selected this alternative because it would result in a 
critical habitat designation that provides for the conservation of the 
species and is consistent with the ESA and joint NMFS and U.S. Fish and 
Wildlife Service regulations concerning critical habitat at 50 CFR part 
424 while potentially reducing national security impacts. Based on the 
best information currently available, we concluded that this 
alternative would result in minimal impacts to small entities and the 
economic impacts associated with the critical habitat designation would 
be modest.

Paperwork Reduction Act

    The purpose of the Paperwork Reduction Act is to minimize the 
paperwork burden for individuals, small businesses, educational and 
nonprofit institutions, and other persons resulting from the collection 
of information by or for the Federal government. This revised proposed 
rule does not contain any new or revised collection of information. 
This rule, if adopted, would not impose recordkeeping or reporting 
requirements on State or local governments, individuals, businesses, or 
organizations.

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

    In accordance with the Unfunded Mandates Reform Act, we make the 
following findings:
    (1) This revised proposed rule will not produce a Federal mandate. 
In general, a Federal mandate is a provision in legislation, statute or 
regulation that would impose an enforceable duty upon State, local, 
tribal governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
The designation of critical habitat does not impose an enforceable duty 
on non-Federal government entities or private parties. Under the ESA, 
the only regulatory effect of a critical habitat designation is that 
Federal agencies must ensure that their actions are not likely to 
destroy or adversely modify critical habitat under section 7. Non-
Federal entities that receive Federal funding, assistance, permits, or 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly affected by the designation of critical 
habitat, but the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Furthermore, to the extent that non-Federal entities are indirectly 
affected because they receive Federal assistance or participate in a 
voluntary Federal aid program, the Unfunded Mandate Reform Act would 
not apply, nor would critical habitat shift to state governments the 
costs of the large entitlement programs listed above.
    (2) This revised proposed rule will not significantly or uniquely 
affect small governments because it is not likely to produce a Federal 
mandate of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. In addition, the designation of critical habitat imposes no 
obligations on local, state, or tribal governments. Therefore, a Small 
Government Agency Plan is not required.

Information Quality Act and Peer Review

    The data and analyses supporting this proposed action have 
undergone a pre-dissemination review and have been determined to be in 
compliance with applicable information quality guidelines implementing 
the Information Quality Act (Section 515 of Pub. L. 106-554).
    On December 16, 2004, the OMB issued its Final Information Quality 
Bulletin for Peer Review (Bulletin) establishing minimum peer review 
standards, a transparent process for public disclosure of peer review 
planning, and opportunities for public participation. The Bulletin was 
published in the Federal Register on January 14, 2005 (70 FR 2664). The 
primary purpose of the Bulletin, which was implemented under the 
Information

[[Page 1472]]

Quality Act, is to improve the quality and credibility of scientific 
information disseminated by the Federal government by requiring peer 
review of ``influential scientific information'' and ``highly 
influential scientific information'' prior to public dissemination. 
Influential scientific information is defined as information the agency 
reasonably can determine will have or does have a clear and substantial 
impact on important public policies or private sector decisions. The 
Bulletin provides agencies broad discretion in determining the 
appropriate process and level of peer review. Stricter standards were 
established for the peer review of ``highly influential scientific 
assessments,'' defined as information whose dissemination could have a 
potential impact of more than $500 million in any one year on either 
the public or private sector or that the information is novel, 
controversial, or precedent-setting, or has significant interagency 
interest.
    The evaluation of critical habitat presented in this revised 
proposed rule and the information presented in the supporting Draft 
Impact Analysis Report are considered influential scientific 
information subject to peer review. To satisfy our requirements under 
the OMB Bulletin, we obtained independent peer review of the critical 
habitat analysis contained in our 2014 proposed rule from five 
reviewers, and of the information used to prepare the associated impact 
analysis report from three reviewers. We reviewed the comments received 
from these reviewers for substantive issues and new information 
regarding critical habitat for the Arctic ringed seal, and we used this 
information as applicable in the development of this revised proposed 
rule and the associated Draft Impact Analysis Report. The peer review 
comments are compiled in two reports that are available on the Federal 
eRulemaking Portal or upon request (see ADDRESSES). We are obtaining 
additional independent peer review of the information used to prepare 
this revised proposed rule, and will address all comments received in 
developing the final rule.

Executive Order 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. Executive Order 13175 on 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.
    As the entire proposed critical habitat area is located seaward of 
the line of MLLW and does not extend into tidally-influenced channels 
of tributary waters, no tribal-owned lands overlap with the revised 
proposed designation. However, we seek comments and information 
concerning tribal and Alaska Native corporation activities that are 
likely to be affected by the proposed designation (see Public Comments 
Solicited section). Although this revised proposed designation overlaps 
with areas used by Alaska Natives for subsistence, cultural, and other 
purposes, no restrictions on subsistence hunting are associated with 
the critical habitat designation. We coordinate with Alaska Native 
hunters regarding management issues related to Arctic ringed seals 
through the Ice Seal Committee (ISC), a co-management organization 
under section 119 of the MMPA. We discussed the designation of critical 
habitat for Arctic ringed seals with the ISC and provided updates 
regarding the timeline for publication of this revised proposed rule. 
We will also contact potentially affected tribes and Alaska Native 
corporations by mail and offer them the opportunity to consult on the 
revised designation of critical habitat for the Arctic ringed seal and 
discuss any concerns they may have. If we receive any such requests in 
response to this revised proposed rule, we will respond to each request 
before issuing a final rule.

Executive Order 12630, Takings

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of property. A taking of property includes 
actions that result in physical invasion or occupancy of private 
property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
the revised proposed rule does not have significant takings 
implications. The designation of critical habitat directly affects only 
Federal agency actions (i.e., those actions authorized, funded, or 
carried out by Federal agencies). Further, no areas of private property 
exist within the revised proposed critical habitat and hence none would 
be affected by this action. Therefore, a takings implication assessment 
is not required.

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13771, Reducing Regulation and Controlling Regulatory Costs

    OMB has determined that this revised proposed rule is significant 
for purposes of E.O. 12866 review. A Draft Impact Analysis Report has 
been prepared that considers the economic costs and benefits of the 
revised proposed critical habitat designation and alternatives to this 
rulemaking as required under E.O. 12866. To review this report, see the 
ADDRESSES section above.
    Based on the Draft Impact Analysis Report, the total estimated 
present value of the incremental impacts of the revised proposed 
critical habitat designation is approximately $786,000 over the next 10 
years (discounted at 7 percent). Assuming a 7 percent discount rate, 
the range of annual impacts is estimated to be $57,000 to $105,000. 
Overall, economic impacts are expected to be small and Federal agencies 
are anticipated to bear at least 45 percent of these costs. While there 
are expected beneficial economic impacts of designating critical 
habitat for the Arctic ringed seal, there are insufficient data 
available to monetize those impacts (see Benefits of Designation 
section).
    This proposed rulemaking is expected to be regulatory under E.O. 
13771.

Executive Order 13132, Federalism

    Executive Order 13132 requires agencies to take into account any 
federalism impacts of regulations under development. It includes 
specific consultation directives for situations in which a regulation 
may preempt state law or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Pursuant to 
E.O. 13132, we determined that this revised proposed rule does not have 
significant federalism effects and that a federalism assessment is not 
required. The designation of critical habitat directly affects only the 
responsibilities of Federal agencies. As a result, the revised proposed 
rule does not have substantial direct effects on the States, on the 
relationship between the national government and the States, or

[[Page 1473]]

on the distribution of power and responsibilities among the various 
levels of government, as specified in the Order. State or local 
governments may be indirectly affected by the revised proposed 
designation if they require Federal funds or formal approval or 
authorization from a Federal agency as a prerequisite to conducting an 
action. In these cases, the State or local government agency may 
participate in the ESA section 7 consultation as a third party. 
However, in keeping with Department of Commerce policies and consistent 
with ESA regulations at 50 CFR 424.16(c)(1)(ii), we will request 
information for this revised proposed rule from the appropriate state 
resource agencies in Alaska.

Executive Order 13211, Energy Supply, Distribution, and Use

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking a significant energy action. Under E.O. 
13211, a significant energy action means any action by an agency that 
is expected to lead to the promulgation of a final rule or regulation 
that is a significant regulatory action under E.O. 12866 and is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy. We have considered the potential impacts of this revised 
proposed critical habitat designation on the supply, distribution, or 
use of energy (see Draft Impact Analysis Report for this revised 
proposed rule). This proposed critical habitat designation overlaps 
with five BOEM planning areas for Outer Continental Shelf oil and gas 
leasing; however, the Beaufort and Chukchi Sea planning areas are the 
only areas with existing or planned leases.
    Currently, the majority of oil and gas production occurs on land 
adjacent to the Beaufort Sea and the proposed critical habitat area. 
Any proposed offshore oil and gas projects would likely undergo an ESA 
section 7 consultation to ensure that the project would not likely 
destroy or adversely modify designated critical habitat. However, as 
discussed in the Draft Impact Analysis Report for this revised proposed 
rule, such consultations will not result in any new and significant 
effects on energy supply, distribution, or use. ESA section 7 
consultations have occurred for numerous oil and gas projects within 
the area of the critical habitat designation (e.g., regarding possible 
effects on endangered bowhead whales, a species without designated 
critical habitat) without adversely affecting energy supply, 
distribution, or use, and we would expect the same relative to critical 
habitat for Arctic ringed seals. We have, therefore, determined that 
the energy effects of this revised proposed rule are unlikely to exceed 
the impact thresholds identified in E.O. 13211, and that this 
rulemaking is not a significant energy action.

List of Subjects

50 CFR Part 223

    Endangered and threatened species.

50 CFR Part 226

    Endangered and threatened species.

    Dated: December 28, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 223 and 226 
are proposed to be 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, amend the table in paragraph (e), under Marine 
Mammals, by revising the entry for the ``Seal, ringed (Arctic 
subspecies)'' to read as follows:


Sec.  223.102   Enumeration of threatened marine and anadromous 
species.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                          Species \1\
---------------------------------------------------------------  Citation(s) for     Critical
                                                Description of       listing          habitat        ESA rules
         Common name          Scientific name   listed entity   determination(s)
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Seal, ringed (Arctic          Phoca (=Pusa)    Entire           77 FR 76706,             226.229              NA
 subspecies).                  hispida          subspecies.      Dec. 28, 2012.
                               hispida.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722; February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612; November 20, 1991).

* * * * *

PART 226--DESIGNATED CRITICAL HABITAT

0
3. The authority citation for part 226 continues to read as follows:

    Authority:  16 U.S.C. 1533.

0
4. Add Sec.  226.229 to read as follows:


Sec.  226.229  Critical Habitat for the Arctic Subspecies (Pusa hispida 
hispida) of the Ringed Seal.

    Critical habitat is designated for the Arctic subspecies of the 
ringed seal as depicted in this section. The map, clarified by the 
textual descriptions in this section, is the definitive source for 
determining the critical habitat boundaries.
    (a) Critical habitat boundaries. Critical habitat for the Arctic 
subspecies of the ringed seal includes marine waters within one 
specific area in the Bering, Chukchi, and Beaufort seas, extending from 
the line of mean lower low water (MLLW) to an offshore limit within the 
U.S. Exclusive Economic Zone (EEZ). Critical habitat does not extend 
into tidally-influenced channels of tributary waters of the Bering, 
Chukchi, or Beaufort seas. The boundary extends offshore from the 
northern limit of the United States-Canada border approximately 190 km 
to 71[deg]17'29'' N139[deg]28'8'' W, and from this point runs generally 
westward along the line connecting the following points: 71[deg]43'32'' 
N/141[deg]59'29'' W, 71[deg]46'18'' N/144[deg]31'13'' W, 71[deg]50'25'' 
N/145[deg]53'17'' W, 72[deg]10'39'' N/149[deg]10'58'' W, 72[deg]20'4'' 
N/150[deg] W, and 72[deg]20'4'' N/152[deg] W. From this point 
(72[deg]20'4'' N/152[deg] W) the boundary follows longitude 152[deg] W 
northward to the seaward limit of the

[[Page 1474]]

U.S. EEZ, and then follows the limit of the U.S. EEZ northwestward; 
then southwestward and south to the intersection of the southern 
boundary of the critical habitat in the Bering Sea at 61[deg]18'15'' N/
177[deg]45'56'' W. The southern boundary extends southeastward from 
this intersection point to 60[deg]7' N/172[deg]1' W, then northeastward 
along a line extending to near Cape Romanzof at 61[deg]48'42'' N/
166[deg]6'5'' W, with the shoreward boundary defined by line of MLLW. 
Critical habitat does not include permanent manmade structures such as 
boat ramps, docks, and pilings that were in existence within the legal 
boundaries on or before the effective date of this rule.
    (b) Essential features. The essential features for the conservation 
of the Arctic subspecies of the ringed seal are:
    (1) Snow-covered sea ice habitat suitable for the formation and 
maintenance of subnivean birth lairs used for sheltering pups during 
whelping and nursing, which is defined as areas of seasonal landfast 
(shorefast) ice and dense, stable pack ice, excluding any bottom-fast 
ice extending seaward from the coastline (typically in waters less than 
2 m deep), that have undergone deformation and contain snowdrifts of 
sufficient depth, typically at least 54 cm deep.
    (2) Sea ice habitat suitable as a platform for basking and molting, 
which is defined as areas containing sea ice of 15 percent or more 
concentration, excluding any bottom-fast ice extending seaward from the 
coastline (typically in waters less than 2 m deep).
    (3) Primary prey resources to support Arctic ringed seals, which 
are defined to be Arctic cod (Boreogadus saida), saffron cod (Eleginus 
gracilis), shrimps, and amphipods.
    (c) Map of Arctic ringed seal critical habitat.
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[FR Doc. 2020-29008 Filed 1-7-21; 8:45 am]
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