Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Proposed Rules 1433 

§ 219.615 Random testing collections. 

* * * * * 

(e) * * * 

(3) A railroad must inform each 

regulated employee that he or she has 

been selected for random testing at the 

time the employee is notified. * * * 

* * * * * 

■ 17. In § 219.617, revise the first 

sentence of paragraph (a)(3) to read as 

follows: 

§ 219.617 Participation in random alcohol 

and drug testing. 

(a) * * * 

(3) A railroad may excuse a regulated 

employee who has been notified of his 

or her selection for random testing 

only if the employee can substantiate 

that a medical emergency involving the 

employee or an immediate family 

member (e.g., birth, death, or medical 

emergency) supersedes the requirement 

to complete the test. * * * 

* * * * * 

■ 18. In § 219.625, revise paragraph 

(c)(1) to read as follows: 

§ 219.625 FRA Administrator’s 

Determination of Random Alcohol and Drug 

Testing Rates 

* * * * * 

(c) * * * 

(1) These initial testing rates are 

subject to amendment by the 

Administrator in accordance with 

paragraphs (d) and (e) of this section 

after at least two consecutive calendar 

years of MIS data have been compiled 

for the category of regulated employee. 

* * * * * 

Subpart I—Annual Report 

■ 19. In § 219.800, revise the first 

sentence of paragraph (a) and paragraph 

(f), and add paragraph (g) to read as 

follows: 

§ 219.800 Annual reports. 

(a) Each railroad that has a total of 

400,000 or more employee hours 

(including hours worked by all 

employees of the railroad, regardless of 

occupation, not only while in the 

United States, but also while outside the 

United States), must submit to* FRA by 

March 15 of each year a report covering 

the previous calendar year (January 1– 

December 31), summarizing the results 

of its alcohol misuse and drug abuse 

prevention program. * * * 

* * * * * 

(f) A railroad required to submit an 

MIS report under this section must 

submit separate reports for covered 

service employees, MOW employees, 

and MECH employees. 

(g)(1) This subpart does not apply to 

any contractor that performs regulated 

service exclusively for railroads with 

fewer than 400,000 total employee 

annual work hours, including hours 

worked by all employees of the railroad, 

regardless of occupation, not only while 

in the United States, but also while 

outside the United States. 

(2) When a contractor performs 

regulated service for at least one railroad 

with 400,000 or more total annual 

employee work hours, including hours 

worked by all employees of the railroad, 

regardless of occupation, not only while 

in the United States, but also while 

outside the United States, this subpart 

applies as follows: 

(i) A railroad with 400,000 or more 

total employee annual work hours must 

comply with this subpart regarding any 

contractor employees it integrates into 

its own alcohol and drug program under 

this part; and 

(ii) If a contractor establishes an 

independent alcohol and drug testing 

program that meets the requirements of 

this part and is acceptable to the 

railroad, the contractor must comply 

with this subpart if it has 200 or more 

regulated employees. 

Appendix B to Part 219—[Removed] 

■ 20. Remove appendix B to part 219. 

Appendix C to Part 219—[Removed] 

■ 21. Remove appendix C to part 219. 

Issued in Washington, DC 

Quintin C. Kendall, 

Deputy Administrator. 

[FR Doc. 2020–25868 Filed 1–7–21; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 226 

[Docket No.: 201228–0358] 

RIN 0648–BJ65 

Endangered and Threatened Species; 

Designation of Critical Habitat for the 

Beringia Distinct Population Segment 

of the Bearded Seal 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), propose to 

designate critical habitat for the Beringia 

distinct population segment (DPS) of the 

Pacific bearded seal subspecies 

Erignathus barbatus nauticus under the 

Endangered Species Act (ESA). The 

proposed designation comprises an area 

of marine habitat in the Bering, 

Chukchi, and Beaufort seas. We seek 

comments on all aspects of the proposed 

critical habitat designation and will 

consider information received before 

issuing a final designation. 

DATES: Comments must be received by 

March 9, 2020. Public hearings on the 

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– 

2020–0029, 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 Beringia 

Distinct Population Segment of the 

Bearded Seal’’) by either of the 

following methods: 

• Electronic Submission: Submit all 

electronic comments via the Federal 

eRulemaking Portal. Go to 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2020- 

0029, 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 proposed rule 

and a complete list of references cited 

in this proposed rule are available on 

the Federal eRulemaking Portal at 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2020- 

0029. 

FOR FURTHER INFORMATION CONTACT: 

Tammy Olson, NMFS Alaska Region, 

(907) 271–5006; Jon Kurland, NMFS 


tkelley on DSKBCP9HB2PROD with PROPOSALS
1434 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Proposed Rules 

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 proposed rule describes our 

proposed designation of critical habitat 

for the Beringia distinct population 

segment (DPS) of the Pacific bearded 

seal subspecies Erignathus barbatus 

nauticus, including supporting 

information on the distribution and 

habitat use of the Beringia DPS, and the 

methods used to develop the proposed 

designation. 

Background 

On December 28, 2012, we published 

a final rule to list the Beringia DPS of 

the Pacific bearded seal subspecies as 

threatened under the ESA (77 FR 

76740). 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 Beringia DPS in 

a separate rulemaking, as it was not then 

determinable. Concurrently, we 

solicited information to assist us in (1) 

identifying the physical or biological 

features essential to the conservation of 

the Beringia DPS, and (2) assessing the 

economic consequences of designating 

critical habitat for this species. 

Subsequently, on July 25, 2014, the 

listing of the Beringia DPS as a 

threatened species was vacated by the 

U.S. District Court for the District of 

Alaska (Alaska Oil & Gas Ass’n v. 

Pritzker, Case Nos. 4:13–cv–18–RRB, 

4:13–cv–21–RRB, 4:13–cv–22–RRB, 

2014 WL 3726121 (D. Alaska July 25, 

2014)). This decision was reversed by 

the U.S. Court of Appeals for the Ninth 

Circuit on October 24, 2016 (Alaska Oil 

& Gas Ass’n v. Ross, 840 F.3d 671 (9th 

Cir. 2016), cert. denied, 138 S. Ct. 924 

(2018)), and the listing was reinstated 

on February 22, 2017. 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 Beringia DPS of 

the bearded seal. Under a courtapproved 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 the 

Beringia DPS to the Federal Register by 

March 15, 2021, and (to the extent a 

proposed rule has been published) a 

final rule by March 15, 2022. 

Description and Natural History 

The bearded seal is the largest of the 

northern ice-associated seals. Adults 

average 2.1 to 2.4 meters (m) in length 

and weigh up to 360 kilograms 

(Chapskii 1938, McLaren 1958, Johnson 

et al. 1966, Burns 1967, Benjaminsen 

1973, Burns 1981). In general, bearded 

seals reach sexual maturity at ages 5 to 

6 for females and 6 to 7 for males 

(McLaren 1958, Tikhomirov 1966, Burns 

1967, Burns and Frost 1979, Smith 

1981, Andersen et al. 1999). The life 

span of bearded seals is about 20 to 25 

years (Kovacs 2002). 

General Seasonal Distribution and 

Habitat Use 

Bearded seals of the Beringia DPS 

inhabit seasonally ice-covered waters of 

the Bering, Chukchi, Beaufort, and East 

Siberian seas. They primarily feed on 

organisms on or near the seafloor 

(benthic) that are more numerous in 

shallow water where light can reach the 

sea bottom. Thus, their effective habitat 

is generally restricted to areas where 

seasonal ice occurs over relatively 

shallow waters, typically less than 200 

meters (m), where they can reach the 

ocean floor to forage (Burns and Frost 

1979, Burns 1981, Nelson et al. 1984, 

Fedoseev 2000). Still, bearded seal dive 

depths have been recorded to greater 

than 488 m (Gjertz et al. 2000). Cameron 

et al. (2010) defined the core 

distribution of the bearded seal as those 

areas of known extent that are in water 

less than 500 m deep. 

Sea ice provides bearded seals some 

protection from predators and serves as 

a platform out of the water for whelping 

and nursing of pups, pup maturation, 

and molting (shedding and regrowing 

hair and outer skin layers), as well as for 

resting (Cameron et al. 2010). Bearded 

seals can be found in a broad range of 

different ice types (Fay 1974, Burns and 

Frost 1979, Burns 1981, Nelson et al. 

1984), but they favor drifting pack ice 

with natural openings and areas of open 

water, such as leads, fractures, and 

polynyas, for breathing, hauling out on 

the ice, and access to the water for 

foraging (Heptner et al. 1976, Burns and 

Frost 1979, Nelson et al. 1984, Kingsley 

et al. 1985, Cleator and Stirling 1990). 

Although bearded seals prefer sea ice 

with natural access to the water, 

observations indicate the seals are able 

to make breathing holes in thinner ice 


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(Burns 1967, Burns and Frost 1979, 

Burns 1981, Nelson et al. 1984). They 

tend to avoid areas of continuous, thick, 

landfast (shorefast) ice and are rarely 

seen in the vicinity of unbroken, heavy, 

drifting ice or large areas of multi-year 

ice (Heptner et al. 1976, Burns and Frost 

1979, Nelson et al. 1984, Kingsley et al. 

1985, Cleator and Stirling 1990). 

Adult bearded seals have rarely been 

seen hauled out on land in Alaska 

(Burns 1981, Nelson 1981, Smith 1981). 

However, juvenile bearded seals have 

been observed hauled out on land along 

lagoons and rivers in some areas of 

Alaska, including at Nunivak Island 

(Huntington et al. 2017c), in Norton Bay 

(Huntington 2000, Huntington et al. 

2015b, 2015a), on the Chukchi Sea coast 

near Shishmaref and Wainwright 

(Nelson 1981, Huntington et al. 2016a), 

and on sandy islands near Utqiag ̇vik 

(Cameron et al. 2010). Satellite tracking 

data also indicate that during the openwater period (July to October), tagged 

juvenile bearded seals sometimes 

hauled out on land in Kotzebue Sound 

and Norton Sound (Quakenbush et al. 

2019). There is some evidence that 

bearded seals might not require the 

presence of sea ice for hauling out other 

than during the critical life history 

periods related to reproduction and 

molting. Some bearded seals tagged in 

Alaska have remained in the water for 

weeks or months at a time during the 

open-water period and into early winter 

(Frost et al. 2008, Boveng and Cameron 

2013, Quakenbush et al. 2019). 

The region that includes the Bering 

and Chukchi seas is the largest area of 

continuous habitat for bearded seals 

(Burns 1981, Nelson et al. 1984). The 

Bering-Chukchi Platform is a shallow 

intercontinental shelf that encompasses 

about half of the Bering Sea, spans the 

Bering Strait, and covers nearly all of 

the Chukchi Sea. Bearded seals can 

reach the bottom everywhere along the 

shallow shelf, so it provides them 

favorable foraging habitat (Burns 1967). 

The Bering and Chukchi seas are 

generally covered by sea ice in late 

winter and spring and are then mostly 

ice-free in late summer and fall, a 

process that helps to drive a seasonal 

pattern in the movements and 

distribution of bearded seals in this 

region (Johnson et al. 1966, Burns 1967, 

Heptner et al. 1976, Burns and Frost 

1979, Burns 1981, Nelson et al. 1984). 

In spring, as the sea ice begins to melt, 

many of the bearded seals that 

overwintered in the Bering Sea migrate 

northward with the receding ice through 

the Bering Strait and into the Chukchi 

and Beaufort seas and spend the 

summer and early fall foraging in these 

waters, while an unknown proportion of 

these seals, in particular juveniles, may 

remain in the Bering Sea. Some bearded 

seals (largely juveniles), have been 

observed in small coastal bays, lagoons, 

and estuaries, near river mouths, and up 

some rivers, in particular during late 

summer and fall (Burns 1981, Nelson 

1981, Huntington et al. 2015b, 2015c, 

2015a, 2016a, 2016b, 2016c, Northwest 

Arctic Borough 2016, Huntington et al. 

2017a, 2017c, 2017b, Quakenbush et al. 

2019). As the ice forms in the fall and 

winter, many bearded seals move south 

with the advancing ice edge through the 

Bering Strait into the Bering Sea where 

they spend the winter (Burns 1967, 

Heptner et al. 1976, Burns and Frost 

1979, Burns 1981). Bearded seal 

vocalizations were recorded throughout 

winter and spring in the northeastern 

Chukchi Sea and western Beaufort Sea, 

indicating that some bearded seals 

overwinter in these seas (Hannay et al. 

2013, MacIntyre et al. 2013, Jones et al. 

2014, MacIntyre et al. 2015, FrouinMouy et al. 2016). Intermittent coastal 

leads deep in the ice pack of these seas 

provide at least marginal habitat for low 

densities of females to whelp in the 

spring (Burns and Frost 1979, Cameron 

et al. 2010). 

Of the bearded seals tagged in Alaska 

to date, few have been adults, and the 

majority were tagged in Norton Sound 

and Kotzebue Sound. Tracking data for 

most tagged seals have shown an overall 

pattern of movement northward in 

summer with receding sea ice and 

southward in fall as sea ice advances 

(Frost et al. 2008, Boveng and Cameron 

2013, Breed et al. 2018, Cameron et al. 

2018, Quakenbush et al. 2019). 

Quakenbush et al. (2019) found that the 

extent of these movements for seals 

tracked during their study depended on 

where the seals were tagged. Two 

juveniles tagged in the western Beaufort 

Sea did not travel south of ∼70° N (in 

the Chukchi Sea), whereas juveniles 

tagged in Norton Sound made more 

extensive latitudinal movements 

(Quakenbush et al. 2019). Similarly, an 

adult male tagged in the western 

Beaufort Sea in the fall of 2019 

remained there over winter (Alaska 

Department of Fish and Game and North 

Slope Borough, 2020, unpublished 

data). 

Reproduction 

During the winter and spring, 

pregnant female bearded seals find 

broken pack ice over shallow areas on 

which to whelp, nurse pups, and molt 

(Fay 1974, Heptner et al. 1976, Burns 

1981, Lydersen and Kovacs 1999, 

Kovacs 2002). Females with pups are 

generally solitary, tending not to 

aggregate (Heptner et al. 1976, Kovacs et 

al. 1996). After giving birth on the ice, 

female bearded seals feed throughout 

the lactation period of about 24 days, 

continuously replenishing fat reserves 

lost while nursing pups (Holsvik 1998, 

Lydersen and Kovacs 1999, Krafft et al. 

2000). Pups nurse on the ice (Lydersen 

et al. 1994, Lydersen and Kovacs 1999, 

Kovacs et al. 2019), and by the time they 

are a few days old, they spend half their 

time in the water (Lydersen et al. 1994, 

Gjertz et al. 2000, Watanabe et al. 2009). 

Pups develop diving, swimming, and 

foraging skills over the nursing period 

and beyond (Lydersen et al. 1994, Gjertz 

et al. 2000, Watanabe et al. 2009, 

Hamilton et al. 2019). In the Bering Sea, 

newborn pups have been observed from 

mid-March to early May (Cameron et al. 

2010). A peak in births in the Bering 

Strait and central Chukchi Sea is 

estimated to occur in late April (Johnson 

et al. 1966, Tikhomirov 1966, Heptner et 

al. 1976, Burns 1981, Cameron et al. 

2010). 

Bearded seals vocalize intensively 

during the breeding season, which 

Cameron et al. (2010) estimated extends 

from April into June (Cameron et al. 

2010). Passive acoustic monitoring 

studies in the northern Bering, Chukchi, 

and Beaufort seas off Alaska have 

recorded a variable progressive increase 

in bearded seal call activity over winter, 

with peak rates occurring from about 

mid-March or April to late June in the 

Chukchi and Beaufort seas (Hannay et 

al. 2013, MacIntyre et al. 2013, Jones et 

al. 2014, MacIntyre et al. 2015, FrouinMouy et al. 2016), and from about midMarch to the middle or end of May in 

the northern Bering Sea (MacIntyre et 

al. 2015, Chou et al. 2019). In general, 

the predominant calls produced by 

males during the breeding season are 

frequency-modulated vocalizations 

termed trills, which range from 

approximately 0.1 kHz to 11.3 kHz 

(Stirling et al. 1983, Cleator et al. 1989, 

Budelsky 1992, Van Parijs et al. 2001, 

Risch et al. 2007, Jones et al. 2014, 

Frouin-Mouy et al. 2016, Parisi et al. 

2017). Trills are typically long in 

duration, can propagate over large 

distances, and show marked individual 

and geographic variation (Cleator et al. 

1989, Van Parijs et al. 2001, Van Parijs 

2003, Van Parijs et al. 2003, 2004, Van 

Parijs and Clark 2006). Some male 

bearded seals maintain a single small 

aquatic territory during the breeding 

season, while others roam across larger 

areas (Van Parijs et al. 2003, 2004, Van 

Parijs and Clark 2006). It was estimated 

that bearded seals produce sound 

pressure levels of up to 178 dBrms re 1 

mPa (Cummings et al. 1983 cited in 

Richardson et al. 1995). Male 


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vocalizations during the breeding 

season function to maintain aquatic 

territories and/or advertise breeding 

condition (Ray et al. 1969, Cleator et al. 

1989, Van Parijs et al. 2003, Van Parijs 

and Clark 2006, Risch et al. 2007). 

Surveys indicate that in the Bering 

Sea during spring, bearded seals use 

nearly the entire extent of pack ice over 

the continental shelf. The highest 

densities of bearded seals in early spring 

have typically been observed between 

St. Lawrence and St. Matthew Islands, 

with lower densities reported southeast 

of St. Matthew Island and in the 

southern Gulf of Anadyr (Krylov et al. 

1964, Kosygin 1966b, Braham et al. 

1981, Cameron and Boveng 2007, 

Cameron et al. 2008). In early spring of 

some years, high densities of bearded 

seals have also been observed north and 

west of St. Lawrence Island (Braham et 

al. 1977, Fedoseev et al. 1988, Cameron 

et al. 2008). The age-sex composition of 

these aggregations was not documented, 

so it is not known if these are whelping 

areas. However, spring aerial surveys of 

the Bering Sea conducted in 2012 and 

2013 documented numerous bearded 

seals, including pups, in Norton Sound 

and the Chirikov Basin north of St. 

Lawrence Island, extending to well 

south of St. Matthew and Nunivak 

Islands (NMFS Marine Mammal 

Laboratory, unpublished data). The 

subsistence harvest of bearded seal pups 

by hunters in Quinhagak also suggests 

that some bearded seals may whelp 

south of Nunivak Island (Coffing et al. 

1998). Existing information on the 

spring distribution of bearded seals is 

otherwise limited. Aerial surveys 

conducted in parts of the Chukchi Sea 

during April and May of 2016 

documented numerous bearded seals, 

including some pups, in the Hope Basin 

south of Point Hope, and less frequent 

sightings of bearded seals (which 

included a few pups) north of Point 

Hope (NMFS Marine Mammal 

Laboratory, unpublished data). Bearded 

seals were also more commonly 

observed south of Point Hope during 

aerial surveys flown primarily along the 

coast of the northeastern Chukchi Sea in 

late May to early June of 1999 and 2000 

(Bengtson et al. 2005). However, the 

age-sex composition of bearded seals 

observed was not reported and this 

survey was timed toward the molting 

period. 

Molting 

Adult and juvenile bearded seals molt 

annually, a process that for adults 

typically begins shortly after mating, as 

it does with other mature phocid or 

‘‘true’’ seals (Chapskii 1938, Ling 1970, 

Ling 1972, King 1983, Yochem and 

Stewart 2002). Juvenile bearded seals 

have been reported to molt earlier than 

adults (Krylov et al. 1964, Heptner et al. 

1976, Fedoseev 2000). Bearded seals 

haul out of the water onto the ice more 

frequently during molting (Burns 1981, 

Fedoseev 2000), a behavior that 

facilitates higher skin temperatures and 

may accelerate shedding and regrowth 

of hair and epidermis (He ́roux 1960, 

Feltz and Fay 1966, Fay 1982). The 

molting period of bearded seals in the 

Bering, Chukchi, and Beaufort seas off 

Alaska has not been specifically 

investigated, but has been described as 

protracted, occurring between April and 

August with a peak in May and June 

(Tikhomirov 1964, Kosygin 1966a, 

Burns 1981). This observed timing of 

molting coincides with the period in 

which bearded seals that overwintered 

in the Bering Sea migrate long distances 

to summering grounds in the Chukchi 

and Beaufort seas. Measures of body 

condition and blubber thickness are at 

their annual minimums following the 

molt (Burns and Frost 1979, Smith 1981, 

Andersen et al. 1999). 

Diet 

Bearded seals feed primarily on 

benthic organisms, including a variety 

of invertebrates dwelling on the surface 

of the seabed (epifauna) and in the 

seabed substrate (infauna), and some 

fishes found on or near the sea bottom 

(demersal). They are also able to switch 

their diet to include schooling pelagic 

(non-demersal) fishes when 

advantageous (Finley and Evans 1983, 

Antonelis et al. 1994). A wide variety of 

prey species have been reported for 

bearded seals of the Beringia DPS, 

though the bulk of their diet appears to 

consist of relatively few major prey 

types. Bearded seals primarily feed on 

bivalve mollusks and crustaceans like 

crabs and shrimps, while fishes such as 

sculpins, cods, and flatfishes can also be 

a significant component of their diet 

(Kenyon 1962, Johnson et al. 1966, 

Burns 1967, Kosygin 1971, Burns and 

Frost 1979, Lowry et al. 1979, 1980, 

Antonelis et al. 1994, Hjelset et al. 1999, 

Fedoseev 2000, Dehn et al. 2007, 

Quakenbush et al. 2011, Crawford et al. 

2015, Bryan 2017). 

Specific bearded seal prey species 

differ somewhat between geographic 

locations. This variability is likely a 

result of differences in prey assemblages 

in each region (Burns and Frost 1979, 

Lowry et al. 1980, Dehn et al. 2007). 

Diet composition of bearded seals has 

been observed to change seasonally 

(Johnson et al. 1966, Burns and Frost 

1979, Quakenbush et al. 2011), and has 

also been reported to vary interannually 

as well as longer-term (Lowry et al. 

1980, Quakenbush et al. 2011, Carroll et 

al. 2013, Crawford et al. 2015). No 

differences have been shown in the 

feeding habitats of male and female 

bearded seals (Kelly 1988); however, 

prey composition of the bearded seal’s 

diet has shown some variation with age 

(Burns and Frost 1979, Lowry et al. 

1980, Quakenbush et al. 2011, Crawford 

et al. 2015). 

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 proposed 

critical habitat designation. In 

accordance with section 4(b)(2) of the 

ESA, this proposed critical habitat 

designation is based on the best 

scientific data available. Our primary 

sources of information include the 

status review report for the bearded seal 

(Cameron et al. 2010), our proposed and 

final rules to list the Beringia and 

Okhotsk DPSs of the bearded seal as 

threatened under the ESA (75 FR 77496, 

December 10, 2010; 77 FR 76740, 

December 28, 2012), articles in peerreviewed 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 bearded 

seals of the Beringia DPS, 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 


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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.). 

Based on existing literature, including 

available information on sightings and 

movements of bearded seals of the 

Beringia DPS, the range of the Beringia 

DPS was identified in the final ESA 

listing rule (77 FR 76740; December 28, 

2012) as the Arctic Ocean and adjacent 

seas in the Pacific Ocean between 145° 

E long. and 130° W long., except west 

of 157° E long., or west of the 

Kamchatka Peninsula, where the 

Okhotsk DPS of the bearded 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 the Beringia DPS occupied at 

the time of listing. This area extends to 

the outer boundary of the U.S. Exclusive 

Economic Zone (EEZ) in the Chukchi 

and Beaufort seas and south over the 

continental shelf in the Bering Sea 

(Cameron et al. 2010). 

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 lifehistory 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 bearded seals 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 

Beringia DPS of the bearded seal within 

U.S. waters occupied by the species. 

(1) Sea ice habitat suitable for 

whelping and nursing, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 25 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

Sea ice habitat suitable for bearded 

seal whelping and nursing is essential to 

the conservation of the Beringia DPS 

because the seals rely on sea ice as a dry 

platform for whelping, nursing, and 

rearing pups in proximity to benthic 

foraging habitats. Further, hauling out 

on the ice reduces thermoregulatory 

demands, and is thus especially 

important for growing pups, which have 

a disproportionately large skin surface 

and rate of heat loss in the water 

(Harding et al. 2005, Jansen et al. 2010). 

If suitable ice cover is absent from 

shallow-water feeding areas during 

whelping and nursing, maternal females 

would be forced to seek sea ice over 

deeper waters, with less access to 

benthic food, or may haul out on shore, 

with potential increased risk of 

disturbance, predation, intra- and 

interspecific competition, and disease 

transmission. However, we are not 

aware of any occurrence of bearded 

seals whelping or nursing pups on land. 

Rearing pups in poorer foraging grounds 

would also require mothers to forage for 

longer periods to replenish energy 

reserves lost while nursing and/or 

compromise their own body condition, 

both of which could impact the transfer 

of energy to offspring and the survival 

of pups, mothers, or both. In addition, 

learning to forage in sub-optimal habitat 

could impair a pup’s ability to learn 

effective foraging skills, and hence, 

impact its long-term survival. 

To identify ice concentrations 

(percentage of ocean surface covered by 

sea ice) that we consider essential for 

bearded seal whelping and nursing, we 

relied upon three studies in the Bering 

Sea that estimated ice concentrations 

selected by bearded seals in the spring, 

based on aerial survey observations of 

bearded seals hauled out on ice. 

Simpkins et al. (2003) found that 

between St. Lawrence and St. Mathew 

Islands in March, bearded seals selected 

areas with ice concentrations of 70 to 90 

percent. Another study conducted in a 

broader area of the Bering Sea south of 

St. Lawrence Island in April and May 

found the highest probability of bearded 

seal occurrence was in ice 

concentrations of 75 to 100 percent, but 

only the 0 to 25 percent ice class had 

substantially lower probability of 

occurrence (Ver Hoef et al. 2014). 

Informed by these two studies, Cameron 

et al. (2010) defined the minimum ice 

concentration sufficient for bearded seal 

whelping and nursing as 25 percent. 

Subsequently, a third paper by Conn et 

al. (2014), which established analytical 

methods to estimate the abundance of 

ice-associated seals from survey data 

collected across the U.S. Bering Sea in 

April and May, showed that in April 

bearded seals occupied ice 

concentrations exceeding 95 percent. 

Bearded seal abundance peaked in ice 

concentrations between about 50 and 75 

percent, and abundance was lowest in 

ice concentrations largely below 25 

percent. Based on the information from 

these studies, we concluded that sea ice 

habitat suitable for bearded seal 

whelping and nursing is of at least 25 

percent ice concentration. 

Cameron et al. (2010) defined the core 

distribution of bearded seals as those 

areas of the known extent of the species’ 

distribution that are in waters less than 

500 m deep. However, as discussed 

above, the bearded seals’ effective 

habitat is generally restricted to areas 

where seasonal sea ice occurs over 

relatively shallow waters, typically less 

than 200 m. Moreover, in the U.S. 

portion of its range, the Beringia DPS 

occurs largely in waters less than 200 m 

deep. Also, bearded seals favor ice with 

access to the water, and tend to avoid 

continuous areas of landfast ice and 

unbroken drifting ice. Therefore, we 

conclude that sea ice habitat essential 

for bearded seal whelping and nursing 

occurs in areas with waters 200 m or 

less in depth containing pack ice (i.e., 

sea ice other than fast ice; pack ice is 

also termed drift ice) of at least 25 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

(2) Sea ice habitat suitable as a 

platform for molting, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 15 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

Sea ice habitat suitable for molting is 

essential to the conservation of the 

Beringia DPS because molting is a 

biologically important, energy-intensive 

process that could incur increased 

energetic costs if it occurs in water or 

could involve increased risk of 

predation (due to the absence of readily 

accessible escape routes to avoid 

predators, i.e., natural opening in the 

sea ice), intra- and inter-specific 

competition, and the potential for 

disease transmission if it occurs on 

land. In light of the studies referenced 

above by Simpkins et al. (2003) and Ver 

Hoef et al. (2014) documenting spring 

ice concentrations selected by bearded 

seals, and based on the assumption that 

sea ice requirements for molting in May 

and June are less stringent than those for 

whelping and nursing pups, Cameron et 

al. (2010) concluded that 15 percent ice 

concentration would be minimally 

sufficient for molting. As discussed 

above, the U.S. range of the Beringia 


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DPS is largely in waters 200 m or less 

in depth, and the preferred depth range 

of bearded seals is less than 200 m. 

Further, bearded seals favor ice with 

access to the water, and tend to avoid 

continuous areas of landfast ice and 

unbroken drifting ice. Therefore, we 

conclude that sea ice essential for 

molting occurs in areas with waters 200 

m or less in depth containing pack ice 

of at least 15 percent concentration and 

providing bearded seals access to those 

waters from the ice. 

(3) Primary prey resources to support 

bearded seals in waters 200 m or less in 

depth: benthic organisms, including 

epifaunal and infaunal invertebrates, 

and demersal and schooling pelagic 

fishes. 

Primary prey resources are essential 

to the conservation of the Beringia DPS 

because bearded seals likely rely on 

these resources the most to meet their 

annual energy budgets. As discussed 

above, bearded seals have a diverse diet 

with a large variety of prey items 

throughout their range, and are 

considered benthic specialists. 

Quakenbush et al. (2011) found that a 

diverse assemblage of invertebrates (63 

taxa) and fish (20 taxa), associated with 

both benthic and pelagic habitats, was 

consumed by bearded seals in the 

Bering and Chukchi seas. The broad 

number of prey species consumed by 

these seals makes specification of 

particular essential prey species 

impracticable. Major prey types 

reported for bearded seals in the Bering, 

Chukchi, and western Beaufort seas 

include epifaunal crustaceans like crabs 

and shrimps as well as infaunal 

invertebrates like clams and marine 

worms, but fishes such as sculpins, 

Arctic cod (Boreogadus saida), and 

saffron cod (Eleginus gracilis) can also 

be a significant component (Johnson et 

al. 1966, Burns 1967, Kosygin 1971, 

Burns and Frost 1979, Lowry et al. 1979, 

1980, Antonelis et al. 1994, Dehn et al. 

2007, Quakenbush et al. 2011, Crawford 

et al. 2015). For example, near St. 

Matthew Island, Antonelis et al. (1994) 

found capelin (Mallotus villosus) was 

the most frequently consumed prey 

species during early spring (identified 

in more than 80 percent of bearded seal 

stomachs examined). Quakenbush et al. 

(2011) reported that in the Bering and 

Chukchi seas, the diet of bearded seals 

shifted toward an increased proportion 

and diversity of fish between the 1961 

to 1979 period and the 2000s (1998 to 

2009). In the 2000s, frequently 

consumed fish prey (considered here to 

be fish prey identified in at least 25 

percent of bearded seal stomachs 

examined) included sculpin (Cottidae), 

cod (primarily Arctic cod and saffron 

cod), and flatfish (primarily yellowfin 

sole (Limanda aspera), longhead dab 

(Limanda proboscidea), and Alaska 

plaice (Pleuronectes 

quadrituberculatus)), with the frequency 

of occurrence of particular species 

differing between the two seas 

(Quakenbush et al. 2011; Table 3). As 

discussed above, the U.S. range of the 

Beringia DPS is largely in waters 200 m 

or less in depth and the preferred depth 

range of bearded seals is less than 200 

m. Therefore, we conclude that the 

primary resources essential to the 

conservation of the Beringia DPS are 

benthic organisms, including epifaunal 

and infaunal invertebrates, and 

demersal and schooling pelagic fishes 

found in water depths of 200 m or less. 

(4) Acoustic conditions that allow for 

effective communication by bearded 

seals for breeding purposes within 

waters used by breeding bearded seals. 

Acoustic conditions that allow for 

effective bearded seal communications 

for breeding purposes are essential to 

the conservation of the Beringia DPS 

because underwater acoustic 

communication plays an important role 

in bearded seal reproductive behavior. 

Male bearded seals vocalize intensively 

during the breeding season to advertise 

breeding condition and/or proclaim a 

territory (Ray et al. 1969, Cleator et al. 

1989, Van Parijs et al. 2003, Van Parijs 

and Clark 2006, Risch et al. 2007). 

Waters with acoustic conditions that 

interfere with or disrupt bearded seal 

acoustic communication during the 

spring breeding season could 

compromise the effectiveness of these 

communications and potentially impair 

the life history functions they support. 

The studies cited above document the 

vocal activity of bearded seals during 

the breeding season, including bearded 

seal call characteristics and spatial and 

temporal patterns of vocalizations (see 

Description and Natural History 

section). We recognize the limited 

nature of these data, but they represent 

the best scientific information available, 

and we are not aware of any other data 

that would allow us to describe in 

greater detail the acoustic conditions 

necessary to avoid impairing effective 

bearded seal communication for 

breeding purposes. We therefore 

specifically seek additional data and 

comments concerning the proposed 

inclusion of this proposed essential 

feature, as well as the proposed 

regulatory text describing this essential 

feature (see Public Comments Solicited 

section). We also solicit additional data 

that would assist Federal action 

agencies and NMFS in determining 

characteristics of noise that result in 

adverse effects on this proposed 

essential feature, such as interference 

with bearded seal detection of acoustic 

communications for breeding purposes 

(i.e., acoustic masking). In developing 

the final critical designation, we will reevaluate the proposed acoustic essential 

feature based on the best scientific data 

available at that time, and will consider 

all public comments, as well as 

information from ongoing interagency 

discussions concerning this proposed 

essential feature. 

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 

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 bearded 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. 

Bearded seal movements and habitat use 


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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 

the essential features that support the 

species’ life history functions of 

whelping, nursing, and molting (i.e., 

specific areas that contain the sea ice 

essential features) occur. As discussed 

above, bearded seals generally maintain 

an association with drifting sea ice, and 

many seals migrate seasonally to 

maintain access to this ice. Bearded seal 

whelping and nursing take place in the 

Bering Sea while ice cover is at or near 

its peak extent. Bearded seal molting 

overlaps with the periods of whelping, 

nursing, pup maturation, and breeding, 

and continues into early summer as the 

pack ice retreats north through the 

Bering Strait and into the Chukchi and 

Beaufort seas. Therefore, we considered 

where the sea ice essential features 

occur in all three seas. 

The dynamic nature of sea ice and the 

spatial and temporal variations in sea 

ice cover constrain our ability to map 

with precision the specific geographic 

locations where the sea ice essential 

features will occur. The specific 

geographic locations of essential sea ice 

habitat used by bearded seals 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., Burns 

and Frost 1979, Frey et al. 2015, 

Gadamus et al. 2015). In addition, the 

duration that sea ice habitat essential for 

whelping and nursing, or for molting, is 

present in any given location can vary 

annually depending on the rate of ice 

melt and other factors. The temporal 

overlap of bearded seal molting with 

whelping and nursing, combined with 

the dynamic nature of sea ice, 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 each sea ice 

essential feature because the ESA 

permits the designation of critical 

habitat where one or more essential 

features occur. 

Bearded seals of the Beringia DPS can 

range widely, which, combined with the 

dynamic variations in sea ice 

conditions, 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 based on the information 

currently available on the seasonal 

distribution and movements of bearded 

seals during the annual period of 

reproduction and molting, the 

maximum depth where the sea ice 

essential features occur, and satellitederived 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 

the Beringia DPS, as follows. 

We first identified the southern 

boundary of this specific area. The 

information discussed above regarding 

the seasonal distribution and 

movements of bearded seals in the 

Bering Sea suggests that sea ice essential 

for whelping and nursing (and 

potentially for molting) extends south of 

St. Matthew and Nunivak Islands. But a 

more precise southern boundary for this 

habitat is unavailable because existing 

information is limited on the spatial 

distribution and whelping locations of 

bearded seals in the Bering Sea during 

spring, and the temporal and spatial 

distribution of sea ice cover, which 

influences bearded seal distributions, is 

variable between years. 

We therefore turned to Sea Ice Index 

data maintained by the National Snow 

and Ice Data Center (NSIDC) for 

information on the estimated median 

position of the ice edge in the Bering 

Sea during April (Fetterer et al. 2017, 

Version 3.0; accessed November 2019), 

which is the peak month for bearded 

seal whelping activity (peak molting for 

adults occurs later in the spring). This 

estimated median ice edge is derived by 

the NSIDC from a time series of satellite 

records for the 30-year reference period 

from 1981 to 2010. To further inform 

our evaluation, we also examined the 

position of the median ice edge in April 

for the more recent 30-year period from 

1990 to 2019, which was estimated 

using methods and data types similar to 

those used for the Sea Ice Index. We 

note that the two most recent years 

included in this 30-year period had 

record low ice extent in the Bering Sea 

(Stabeno and Bell 2019). 

The April median ice edge for the 

1981 to 2010 reference period from the 

Sea Ice Index is located approximately 

170 kilometers (km) southwest of St. 

Matthew Island and 175 km south of 

Nunivak Island, and it extends eastward 

across lower Kuskokwim Bay to near 

Cape Newenham, a headland between 

Kuskokwim Bay and Bristol Bay. 

Because bearded seals use nearly the 

entire extent of pack ice over the Bering 

Sea shelf in spring, depending upon ice 

conditions in a given year, some 

bearded seals may use sea ice for 

whelping south of this median ice edge. 

But we concluded that the variability in 

the annual extent and timing of sea ice 

in this southernmost portion of the 

bearded seal’s range in the Bering Sea 

(e.g., Boveng et al. 2009, Stabeno et al. 

2012, Frey et al. 2015) renders these 

waters unlikely to contain the sea ice 

essential features on a consistent basis 

in more than limited areas. The position 

of the April median ice edge for the 

more recent 1990 to 2019 period is 

generally similar to that of the Sea Ice 

Index, except that the ice edge has a 

wide inverted U-shape in Kuskokwim 

Bay, and as a result, there is roughly 

half as much area with sea ice there. 

Given the reduction in sea ice in 

Kuskokwim Bay between the reference 

period used for the Sea Ice Index and 

the more recent period, we also 

concluded that these waters appear 

unlikely to contain the sea ice essential 

features on a consistent basis in more 

than limited areas. 

As such, we delineated the southern 

boundary to reflect the estimated 

position of the April median ice edge 

west of Kuskokwim Bay. To simplify the 

southern boundary for purposes of 

delineation on maps, we modified the 

ice edge contour line for the 1990 to 

2019 period as follows: (1) Intermediate 

points along the contour line between 

its intersection point with the seaward 

limit of the U.S. EEZ (60°32′26′′ N/ 

179°9′53′′ W) and the point where the 

contour line turns eastward (57°58′ N/ 

170°25′ W) were removed to form the 

segment of the southern boundary that 

extends from the seaward limit of the 

U.S. EEZ southeastward approximately 

575 km; (2) intermediate points along 

the contour line between the point 

where the contour line turns eastward 

and the approximate point on the west 

side of Kuskokwim Bay where the 

contour line turns northeastward (58°29′ 

N/164°46′ W) were removed to form a 

second segment of the southern 

boundary that extends eastward 

approximately 335 km; and (3) these 

two line segments were connected to the 

mainland by an approximately 200-km 

line segment that follows 164°46′ W 

longitude to near the west side of the 

mouth of the Kolovinerak River, about 

50 km east of Nunivak Island. This 

editing produced a simplified southern 

boundary that retains the general shape 


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of the original ice edge contour line 

west of Kuskokwim Bay. 

We then identified the northern 

boundary of the specific area that 

contains one or both of the sea ice 

essential features. As discussed above 

(see Description and Natural History 

section), limited spring aerial survey 

information, satellite tracking data for 

tagged bearded seals, and year-round 

passive acoustic recordings of bearded 

seal vocalizations suggest that some 

portion of the Beringia DPS overwinters 

in the Chukchi and Beaufort seas. In 

addition, many of the bearded seals that 

overwinter in the Bering Sea migrate 

northward with the receding ice edge in 

the spring and early summer into the 

Chukchi and Beaufort seas, coincident 

with the timing of molting. Therefore, 

consistent with the maximum depth 

identified for the sea ice essential 

features, we defined the northern 

boundary of the specific area containing 

the sea ice essential features as the 200- 

m isobath over the continental shelf 

break in the Chukchi and Beaufort seas 

(i.e., the northern extent of waters 200 

m or less in these seas), and the 

boundaries to the east and west as the 

outer extent of the U.S. EEZ. Sea ice 

concentrations suitable for whelping, 

nursing, and molting occur over waters 

extending up to and beyond these 

boundaries (see, e.g., Fetterer et al. 

2017, Sea Ice Index Version 3.0, 

accessed November 2019). The 200-m 

isobath portion of this boundary line 

abuts the United States-Canada border 

in the eastern Beaufort Sea. 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 (as opposed to an 

equidistant line that extends seaward 

perpendicular to the coast at the U.S.- 

Canada land border). Given the overlap 

in the annual timing of the bearded seal 

breeding season with bearded seal 

whelping, nursing, and molting (see 

Description and Natural History 

section), we concluded that the specific 

area identified for the sea ice essential 

features also defines the specific area 

containing acoustic conditions that 

allow for effective communications by 

bearded seals for breeding purposes. 

The shallow seasonally ice-covered 

waters of the Bering, Chukchi, and 

Beaufort seas support a high abundance 

of bearded seal benthic prey resources 

(e.g., Grebmeier et al. 2006, e.g., review 

of abundance and distribution of 

Beringia DPS prey in Cameron et al. 

2010, Logerwell et al. 2011, McCormickRay et al. 2011, Rand and Logerwell 

2011, Stevenson and Lauth 2012, 

Blanchard et al. 2013, Konar and Ravelo 

2013, Grebmeier et al. 2015, Ravelo et 

al. 2015, Sigler et al. 2017, Grebmeier et 

al. 2018, Divine et al. 2019, Lauth et al. 

2019). Studies that have inferred 

locations of foraging activity for bearded 

seals tagged in Alaska based on 

movement and dive data (Boveng and 

Cameron 2013, Gryba et al. 2019, 

Quakenbush et al. 2019) show some 

overlap in the areas used extensively by 

individual seals, but the spatial patterns 

of habitat use and locations of intensive 

use can also vary substantially among 

individuals (e.g., Quakenbush et al. 

2019). This information represents 

habitat use by primarily juvenile tagged 

bearded seals, and it is unknown how 

representative it is for older animals. 

The movements of bearded seals and 

their use of habitat for foraging are 

influenced by a variety of factors, 

including the seasonality of ice cover 

(McClintock et al. 2017, Breed et al. 

2018, Cameron et al. 2018), the fact that 

seals forage throughout the year, and the 

fact that they are broadly distributed 

and can range widely. In addition, 

bearded seals have a diverse diet that 

can vary seasonally and geographically. 

We therefore concluded that the 

boundaries delineated above for the sea 

ice essential features are also 

appropriate for defining the specific 

area where the primary prey essential 

feature occurs, apart from the shoreward 

boundary as described below. 

Satellite tracking information suggests 

that juvenile bearded seals may forage 

in the Bering Sea near the shelf break 

south of the southern boundary of the 

specific area identified above. In 

addition, Breed et al. (2018) and 

Cameron et al. (2018) found that from 

late fall to early spring, tagged juvenile 

bearded seals selected habitat at the 

southern ice edge, which depending on 

ice conditions may extend to near the 

shelf break during late winter and early 

spring. However, other tagged juveniles 

have frequently been observed to use ice 

far north of the ice edge during winter, 

and some individuals overwintered in 

the Chukchi and Beaufort seas 

(Quakenbush et al. 2019). In addition, 

Quakenbush et al. (2019) identified the 

∼100 m isobath in the Bering Sea as a 

notable high-use area for juvenile 

bearded seals during July to November 

based on satellite telemetry data (a 

portion of this habitat is located north 

of the proposed southern boundary), 

although the authors found that the 

specific locations used by tagged seals 

were highly individualistic. We 

therefore concluded that it is 

appropriate to delineate the southern 

boundary as described above. 

Finally, we considered the shoreward 

extent of the essential features. Satellite 

tracking data indicate that some tagged 

juvenile bearded seals used shallow 

nearshore waters during the open-water 

period (Quakenbush et al. 2019), and as 

discussed above (see General Seasonal 

Distribution and Habitat Use section), 

bearded seals (primarily juveniles) have 

been observed feeding in small bays, 

lagoons, estuaries, and near river 

mouths during the open-water period, 

in particular during late summer and 

fall. Further, shallow nearshore waters 

provide habitat for primary prey 

resources essential to conservation of 

the Beringia DPS, such as saffron cod 

and Arctic cod (Barton 1978, Craig et al. 

1982, Underwood et al. 1995, Wiswar et 

al. 1995, North Pacific Fishery 

Management Council 2009, Johnson et 

al. 2010, Logerwell et al. 2015, 83 FR 

31340, July 5, 2018). We are therefore 

proposing to define the shoreward 

boundary of critical habitat as the line 

that marks mean lower low water 

(MLLW) based on occurrence of the 

primary prey essential feature. 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 


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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 the 

Beringia DPS of the bearded seal: 

Climate change; oil and gas exploration, 

development, and production; marine 

shipping and transportation; and 

commercial fisheries. As further 

detailed below, both sea ice essential 

features, the primary prey essential 

feature, and the essential feature of 

acoustic conditions that allow for 

effective communications by bearded 

seals for breeding purposes 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 Beringia DPS of the bearded seal 

is the ongoing and anticipated decreases 

in the extent and timing of sea ice 

stemming from climate change. Climatechange-related threats to the Beringia 

DPS’s habitat are discussed in detail in 

the bearded seal status review report 

(Cameron et al. 2010), as well as in our 

proposed and final rules to list the 

Beringia DPS of the bearded 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 heattrapping 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 the habitat of the 

Beringia DPS by diminishing sea ice 

suitable for whelping, nursing, and 

molting, and by causing changes in the 

distribution, abundance, and/or species 

composition of prey resources 

(including the primary prey resources of 

the Beringia DPS). 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 the Beringia 

DPS. 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 physical and 

biological features essential to the 

conservation of the Beringia DPS 

(Cameron et al. 2010). 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, shore-based facilities, and 

pipelines; and vessel and aircraft 

operations. These activities have the 

potential to affect the essential features 

of Beringia DPS 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, and 

may spread over hundreds or thousands 

of square kilometers. 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 bearded 

seal habitat through physical alteration 

of the sea ice (also see Marine Shipping 

and Transportation section). Other 

examples of activities associated with 


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oil and gas exploration and 

development that may physically alter 

the essential sea ice features offshore 

through-ice activities such as trenching 

and installation of pipelines. Activities 

such as icebreaking, which can cause 

substantial increases in noise levels 

(Richardson et al. 1995), also have the 

potential to affect acoustic conditions 

that allow for effective communication 

by bearded seals for breeding purposes, 

although the extent to which such 

activities are localized near areas where 

bearded seal breeding is occurring and 

the acoustic characteristics of the area 

are among the factors that would 

determine the level of such effects. 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 al. 2015, 

Hawkins and Popper 2017), and the 

nature of potential effects specifically 

on the primary prey resources of the 

Beringia DPS are unclear. 

In summary, a large oil spill could 

render areas containing the identified 

essential features unsuitable for use by 

bearded seals of the Beringia DPS. 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 

disturbance and acoustic effects) could 

alter the quality of the essential features 

of bearded seal critical habitat, or render 

habitat unsuitable. We conclude that the 

essential features of the habitat of the 

Beringia DPS 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. 2015d, 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° 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 icefree or low-ice seasons, helps to mitigate 

the risks of shipping to the essential 

habitat features identified for bearded 

seals of the Beringia DPS. 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 icecovered areas where bearded seals 

reside will likely also increase. We are 

not aware of any data currently 

available on the effects of icebreaking on 

the habitat of bearded 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. As discussed above, in 

addition to physical effects on sea ice, 

icebreaking can cause substantial 

increases in noise levels, and thus has 

the potential to affect acoustic 

conditions that allow for effective 

communication by bearded seals during 

the breeding season. 

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 the Beringia DPS. 

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 the 

Beringia DPS are unclear. 

We conclude that the essential 

features of the habitat of the Beringia 

DPS 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 


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event of an oil spill, sea ice essential for 

whelping, nursing, and molting could 

become oiled; (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 icebreaking activities; and (4) acoustic 

conditions that allow for effective 

communication by bearded seals during 

the breeding season could be affected by 

noise associated with increases in 

shipping and transportation activities. 

Commercial Fisheries 

The specific area identified in this 

proposed rule as meeting the definition 

of critical habitat for the Beringia DPS 

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. For example, two 

bearded seal prey species—Arctic cod 

and saffron cod—have been identified 

as likely initial target species for 

commercial fishing in the Arctic 

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 in the proposed critical 

habitat area 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 

Beringia DPS, 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 range expansion 

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 bearded seals of the Beringia 

DPS 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 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 

Beringia DPS. 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 LRRS. 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 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 


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(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 

are the same as the already identified 

‘‘specific’’ areas of potential critical 

habitat. For the reasons set forth below, 

we are not proposing to exercise the 

discretion delegated to us by the 

Secretary to exclude any particular areas 

from the proposed critical habitat 

designation. 

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 Beringia DPS. The 

‘‘without critical habitat’’ scenario 

represents the baseline for the analysis. 

It includes process requirements and 

habitat protections already extended to 

bearded seals of the Beringia DPS 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 Beringia DPS. 

Our analysis for this 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 proposed rule as 

meeting the definition of critical habitat 

for the Beringia DPS. Additional detail 

is provided in the Draft Impact Analysis 

Report prepared for this proposed rule. 

Benefits of Designation 

We expect that the Beringia DPS 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 

Beringia DPS. 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 

Beringia DPS 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 

the Beringia DPS, 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 

bearded seals of the Beringia DPS and 

their habitat. For example, by 

identifying areas and features essential 

to the conservation of the Beringia DPS, 

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, nonconsumptive, 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 


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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 Beringia DPS 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 

proposed rule as meeting the definition 

of critical habitat for the Beringia DPS 

overlaps substantially with the range of 

the polar bear (Ursus maritimus) in the 

United States, and the bearded seal is a 

prey species of the polar bear, so the 

designation may also provide indirect 

conservation benefits to the polar bear. 

Indirect conservation benefits may also 

extend to other co-occurring species, 

such as the Pacific walrus (Odobenus 

rosmarus divergens), the Arctic ringed 

seal (Pusa hispida hispida), 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 Beringia DPS. 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 bearded seals of the 

Beringia DPS 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 

bearded 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 

Beringia DPS critical habitat in future 

section 7 consultations. 

To identify the types of Federal 

activities that may affect critical habitat 

for the Beringia DPS, 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 

Beringia DPS 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 bearded seals of the 

Beringia DPS. 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 critical habitat for the 

Beringia DPS. 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 Beringia DPS bearded 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 this critical habitat 

designation over the next 10 years, in 

discounted present value terms, 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. About 80 percent of the 

incremental costs attributed to the 

critical habitat designation 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 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 


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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 this 

proposed rule, we contacted the DOD 

regarding any potential impacts of the 

designation of designating critical 

habitat for the Beringia DPS on military 

operations. In a letter dated June 3, 

2013, the DOD Regional Environmental 

Coordinator indicated that no impacts 

on national security were foreseen from 

such a designation. More recently, by 

letter dated March 17, 2020, the Navy 

submitted a request for exclusion of a 

particular area north of the Beaufort Sea 

shelf from the designation of critical 

habitat based on national security 

impacts. This area does not overlap with 

the specific area identified in this 

proposed rule as meeting the definition 

of critical habitat for the Beringia DPS. 

In this letter, the Navy also provided 

information regarding its training and 

testing activities that currently occur or 

are planned to occur in U.S. waters 

inhabited by bearded seals. The Navy 

commented that based on the current 

and expected training and testing 

activities occurring in the Arctic region, 

it has determined that training and 

testing activities do not pose any 

substantial threat to the essential 

features of the habitat of the Beringia 

DPS. 

In addition, 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 Beringia DPS of bearded 

seals, regardless of whether or where 

critical habitat is designated for the 

species. The information provided by 

the Navy does not point to any tangible 

consequences or restrictions that would 

impinge upon the Navy’s training and 

testing activities, and suggests that the 

Navy would need to expend very 

minimal added time and effort to 

complete section 7 consultations to 

evaluate effects on critical habitat in 

addition to effects on 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 

Beringia DPS bearded seals. We 

therefore anticipate that the time and 

costs associated with consideration of 

the effects of future Air Force actions on 

critical habitat of the Beringia DPS 

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 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 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 bearded 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 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 Beringia DPS of the 

bearded seal. This critical habitat area 

contains physical or biological features 

essential to the conservation of bearded 

seals of the Beringia DPS that may 

require special management 

considerations or protection. We are not 

proposing to exclude any areas based on 

economic impacts, impacts to national 

security, or other relevant impacts of 

this proposed designation. We have not 

identified any unoccupied areas that are 

essential to the conservation of the 

Beringia DPS of the bearded 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, 


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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 spatialtemporal 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 Beringia DPS. 

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 critical 

habitat designated for the Beringia DPS 

of the bearded seals 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 

certain military readiness activities. As 

explained above, at this time, on the 

basis of how protections are currently 

implemented for bearded seals of the 

Beringia DPS 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 Beringia DPS 

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 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 the proposed 

designation of critical habitat for the 

Beringia DPS of the bearded seal. In 

particular, we are interested in data and 

information regarding the following: (1) 

Habitat use of the Beringia DPS, 

including bearded seal use of rivers and 

streams near their confluence with the 

ocean; (2) the identification, location, 

and quality of physical or biological 

features essential to the conservation of 

the Beringia DPS, including in 

particular, the inclusion of ‘‘Acoustic 

conditions that allow for effective 

communication by bearded seals for 

breeding purposes within waters used 

by breeding bearded seals’’ as a feature 

essential to the conservation of the 

Beringia DPS, as well characteristics of 

noise that result in adverse effects on 

this essential feature, such as 

interference with bearded seal detection 

of acoustic communications for 

breeding purposes (i.e., acoustic 

masking); (3) the delineation of the 

boundaries, including in particular the 

shoreward boundary, of where one or 

more of these features occur; (4) 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; (5) current or 

planned activities in the area proposed 

for designation and their possible 

impacts on the proposed critical habitat; 

(6) the potential effects of the 

designation on Alaska Native cultural 

practices and villages; (7) any 

foreseeable economic, national security, 

Tribal, or other relevant impacts 

resulting from the proposed designation; 

(8) whether any data used in the 

economic analysis needs to be updated; 

(9) foreseeable additional costs arising 

specifically from the designation of 

critical habitat for the Beringia DPS that 

have not been identified in the Draft 

Impact Analysis Report; (10) additional 

information regarding impacts on small 

businesses and federally recognized 

tribes not identified in the Draft Impact 

Analysis Report; and (11) whether any 

particular areas that we are proposing 

for critical habitat designation should be 

considered for exclusion under section 


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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 the habitat for Beringia DPS 

bearded seals; and (4) a point of contact. 

You may submit your comments and 

information concerning this proposed 

rule by any one of the methods 

described under ADDRESSES above. The 

proposed rule and supporting 

documentation can be found on the 

Federal eRulemaking Portal at 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2020- 

0029. We will consider all comments 

and information received during the 

comment period for this proposed rule 

in preparing the final rule. Accordingly, 

the final decision may differ from this 

proposed rule. 

References Cited 

A complete list of all references cited 

in this 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 proposed rule. The IRFA 

estimates the potential number of small 

businesses that may be directly 

regulated by this 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., 

proposed designation of critical habitat), 

why it is being considered, and its legal 

basis are included in the preamble of 

this 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 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 Beringia DPS of the bearded seal. 

This 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 

habitat features also have the potential 

to affect Beringia DPS bearded 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 bearded seal critical habitat 

in future section 7 consultations that 

would occur regardless based on the 

listing of Beringia DPS bearded 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 Beringia DPS 

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 

Beringia DPS 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 Beringia DPS. 

We considered and rejected the 

alternative of not designating critical 

habitat for the Beringia DPS, because 

such an alternative does not meet our 

statutory requirements under the ESA. 

Under section 4(b)(2) of the ESA, NMFS 

must consider the economic impacts, 

impacts to national security, and other 

relevant impacts of designating any 

particular area as critical habitat. NMFS 


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has the discretion to exclude any area 

from critical habitat if the benefits of 

exclusion (i.e., the impacts that would 

be avoided if an area were excluded 

from the designation) outweigh the 

benefits of designation (i.e., the 

conservation benefits to the Beringia 

DPS if an area were designated), as long 

as exclusion of the area will not result 

in extinction of the species. However, 

based on the best information currently 

available, we concluded that this rule 

would result in minimal impacts to 

small entities and the economic impacts 

associated with the critical habitat 

designation would be modest. 

Therefore, we are not proposing to 

exclude any areas from the critical 

habitat designation pursuant to section 

4(b)(2) of the ESA. Instead, we selected 

the alternative of proposing to designate 

as critical habitat the entire specific area 

that contains at least one identified 

essential feature 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. 

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 

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 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 nonFederal government entities or private 

parties. Under the ESA, the only 

regulatory effect of this 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. NonFederal 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 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 predissemination 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 

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 

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 are obtaining independent peer 

review of the information used to 

prepare this 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 tidallyinfluenced channels of tributary waters, 

no tribal-owned lands overlap with the 

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 proposed 

designation overlaps with areas used by 


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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 

bearded 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 the Beringia DPS of 

the bearded seal with the ISC and 

provided updates regarding the timeline 

for publication of this proposed rule. 

We will also contact potentially affected 

tribes and Alaska Native corporations by 

mail and offer them the opportunity to 

consult on the designation of critical 

habitat for the Beringia DPS and discuss 

any concerns they may have. If we 

receive any such requests in response to 

this 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 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 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 

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 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 

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 

Beringia DPS, 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 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 proposed rule does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or 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 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 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 any 

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 proposed 

critical habitat designation on the 

supply, distribution, or use of energy 

(see Draft Impact Analysis Report for 

this 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 

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 the 

Beringia DPS of the bearded seal. We 

have, therefore, determined that the 

energy effects of this 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 

■ 1. The authority citation for part 223 

continues to read as follows: 

Authority: 16 U.S.C. 1531–1543; subpart B, 

§ 223.201–202 also issued under 16 U.S.C. 

1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 


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■ 2. In § 223.102, amend the table in 

paragraph (e), under Marine Mammals, 

by revising the entry for ‘‘Seal, bearded 

(Beringia DPS)’’ to read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

(e) * * * 

Species 1

Citation(s) for listing 

determination(s) Critical habitat ESA rules 

Common name Scientific name Description of listed entity 

Marine Mammals 

*******

Seal, bearded 

(Beringia DPS).

Erignathus barbatus 

nauticus.

Bearded seals originating from breeding 

areas in the Arctic Ocean and adjacent seas in the Pacific Ocean between 145° E. Long. (Novosibirskiye) 

and 130° W. Long., and east of 157° 

E. Long. or east of the Kamchatka Peninsula.

77 FR 76740, Dec. 

28, 2012.

226.230 NA. 

* * * * * * * 

1Species 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 

■ 3. The authority citation for part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 4. Add § 226.230 to read as follows: 

§ 226.230 Critical Habitat for the Beringia 

Distinct Population Segment of the Bearded 

Seal Subspecies Erignathus barbatus 

nauticus. 

Critical habitat is designated for the 

Beringia distinct population segment of 

the bearded seal subspecies Erignathus 

barbatus nauticus (Beringia DPS) 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 Beringia DPS 

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 with a maximum water 

depth of 200 m from the ocean surface 

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 StatesCanada border to the 200-m isobath and 

then follows this isobath generally 

westward and northwestward to its 

intersection with the seaward limit of 

the U.S EEZ. The boundary then follows 

the limit of the U.S. EEZ southwestward 

and south to the intersection of the 

southern boundary of the critical habitat 

in the Bering Sea at 60°32′26′′ N/ 

179°9′53′′ W. The southern boundary 

extends southeastward from this 

intersection point to 57°58′ N/170°25′ 

W, then eastward to 58°29′ N/164°46′ 

W, then follows longitude 164°46′ W to 

the line of MLLW near the mouth of the 

Kolovinerak River. 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 

Beringia DPS are: 

(1) Sea ice habitat suitable for 

whelping and nursing, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 25 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

(2) Sea ice habitat suitable as a 

platform for molting, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 15 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

(3) Primary prey resources to support 

bearded seals in waters 200 m or less in 

depth: Benthic organisms, including 

epifaunal and infaunal invertebrates, 

and demersal and schooling pelagic 

fishes. 

(4) Acoustic conditions that allow for 

effective communication by bearded 

seals for breeding purposes within 

waters used by breeding bearded seals. 

(c) Map of Beringia DPS critical 

habitat. 

BILLING CODE 3510–22–P 


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[FR Doc. 2020–29006 Filed 1–7–21; 8:45 am] 

BILLING CODE 3510–22–P 

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. 

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/ 


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