[Federal Register Volume 86, Number 5 (Friday, January 8, 2021)]
[Proposed Rules]
[Pages 1433-1452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29006]


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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.

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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:
    <bullet> 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.
    <bullet> 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

[[Page 1434]]

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 court-approved stipulated settlement 
agreement between the parties (which was subsequently amended to extend 
the dates specified in the original order), NMFS agreed to submit a 
proposed determination concerning the designation of critical habitat 
for 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

[[Page 1435]]

(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 
Utqia[gdot]vik (Cameron et al. 2010). Satellite tracking data also 
indicate that during the open-water 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, Frouin-Mouy 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[deg] 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, Frouin-Mouy et al. 
2016), and from about mid-March 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 dB<INF>rms</INF> re 1 [mu]Pa (Cummings et al. 1983 
cited in Richardson et al. 1995). Male

[[Page 1436]]

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 (H[eacute]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 peer-reviewed 
journals, other scientific reports, and relevant Geographic Information 
System (GIS) and satellite data (e.g., shoreline data, U.S. maritime 
limits and boundaries data, sea ice extent) for geographic area 
calculations and mapping.
    To identify specific areas that may qualify as critical habitat for 
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

[[Page 1437]]

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[deg] E long. and 130[deg] W long., except 
west of 157[deg] 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 life-history needs of the species. The 
regulations provide additional details and examples of such features.
    Based on the best scientific information available regarding the 
natural history of 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

[[Page 1438]]

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 re-evaluate 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

[[Page 1439]]

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 
satellite-derived estimates of the position of the sea ice edge over 
time. Although this approach allowed us to identify specific areas that 
contain one or both of the sea ice essential features at certain times, 
the available data supported delineation of specific areas only at a 
coarse scale. Consequently, we delineated a single specific area that 
contains the sea ice features essential to the conservation of 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[deg]32'26'' N/179[deg]9'53'' W) and the point where the contour 
line turns eastward (57[deg]58' N/170[deg]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[deg]29' 
N/164[deg]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[deg]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

[[Page 1440]]

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, McCormick-Ray 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

[[Page 1441]]

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. Climate-change-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 heat-trapping greenhouse gases (GHGs) 
into the atmosphere, most notably those that involve fossil fuel 
combustion, are a major contributing factor to climate change and loss 
of sea ice (Intergovernmental Panel on Climate Change 2013, U.S. Global 
Climate Change Research Program 2017). Such activities may adversely 
affect the essential features of 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

[[Page 1442]]

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[deg] N 
(i.e., northern Bering sea and northward) may increase by 136 to 346 
percent (U.S. Committee on the Marine Transportation System 2019).
    The fact that nearly all vessel traffic in the Arctic, with the 
exception of icebreakers, purposefully avoids areas of ice, and 
primarily occurs during the ice-free or low-ice seasons, helps to 
mitigate the risks of shipping to the essential habitat features 
identified for 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 ice-covered 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

[[Page 1443]]

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 ice-breaking 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

[[Page 1444]]

(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, non-consumptive, or passive), educational, cultural, or 
sociological, or they may be expressed through beneficial changes in 
the ecological functioning of the species' habitat, which itself yields

[[Page 1445]]

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

[[Page 1446]]

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,

[[Page 1447]]

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

[[Page 1448]]

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

[[Page 1449]]

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 non-Federal 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. Non-
Federal entities that receive Federal funding, assistance, permits, or 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly affected by the designation of critical 
habitat, but the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Furthermore, to the extent that non-Federal entities are indirectly 
affected because they receive Federal assistance or participate in a 
voluntary Federal aid program, the Unfunded Mandate Reform Act would 
not apply, nor would critical habitat shift to state governments the 
costs of the large entitlement programs listed above.
    (2) This proposed rule will not significantly or uniquely affect 
small governments because it is not likely to produce a Federal mandate 
of $100 million or greater in any year; that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. In addition, the designation of critical habitat imposes no 
obligations on local, state, or tribal governments. Therefore, a Small 
Government Agency Plan is not required.

Information Quality Act and Peer Review

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

[[Page 1450]]

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

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

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


[[Page 1451]]


0
2. In Sec.  223.102, amend the table in paragraph (e), under Marine 
Mammals, by revising the entry for ``Seal, bearded (Beringia DPS)'' to 
read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           Species 1
-----------------------------------------------------------------------------------------------  Citation(s) for listing     Critical        ESA rules
             Common name                    Scientific name       Description of listed entity      determination(s)          habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Seal, bearded (Beringia DPS).........  Erignathus barbatus       Bearded seals originating      77 FR 76740, Dec. 28,            226.230             NA.
                                        nauticus.                 from breeding areas in the     2012.
                                                                  Arctic Ocean and adjacent
                                                                  seas in the Pacific Ocean
                                                                  between 145[deg] E. Long.
                                                                  (Novosibirskiye) and
                                                                  130[deg] W. Long., and east
                                                                  of 157[deg] E. Long. or east
                                                                  of the Kamchatka Peninsula.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722; February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612; November 20, 1991).

* * * * *

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority: 16 U.S.C. 1533.

0
4. Add Sec.  226.230 to read as follows:


Sec.  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 States-Canada 
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[deg]32'26'' N/
179[deg]9'53'' W. The southern boundary extends southeastward from this 
intersection point to 57[deg]58' N/170[deg]25' W, then eastward to 
58[deg]29' N/164[deg]46' W, then follows longitude 164[deg]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.
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[FR Doc. 2020-29006 Filed 1-7-21; 8:45 am]
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