1452 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Proposed Rules 

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

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 226 

[Docket No.: 201228–0357] 

RIN 0648–BC56 

Endangered and Threatened Species; 

Designation of Critical Habitat for the 

Arctic Subspecies of the Ringed Seal 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Revised proposed rule; 

reopening of comment period. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), announce 

revisions to our December 9, 2014, 

proposed designation of critical habitat 

for the Arctic subspecies of the ringed 

seal (Pusa hispida hispida) under the 

Endangered Species Act (ESA). The 

revised proposed designation comprises 

an area of marine habitat in the Bering, 

Chukchi, and Beaufort seas. Based on 

consideration of national security 

impacts, we also propose to exclude a 

particular area north of the Beaufort Sea 

shelf from the designation. We seek 

comments on all aspects of the revised 

proposed critical habitat designation 

and will consider information received 

before issuing a final designation. 

DATES: Comments must be received by 

March 9, 2021. Public hearings on the 

revised proposed rule will be held in 

Alaska. The dates and times of these 

hearings will be provided in a 

subsequent Federal Register notice. 

ADDRESSES: You may submit data, 

information, or comments on this 

document, identified by NOAA–NMFS– 

2013–0114, and on the associated Draft 

Impact Analysis Report (i.e., report 

titled ‘‘Draft RIR/ESA Section 4(b)(2) 

Preparatory Assessment/IRFA of Critical 

Habitat Designation for the Arctic 

Ringed Seal’’) for the revised proposed 

rule by either of the following methods: 

• Electronic Submission: Submit all 

electronic comments via the Federal 

eRulemaking Portal. Go to 

www.regulations.gov/ 


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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Proposed Rules 1453 

#!docketDetail;D=NOAA-NMFS-2013- 

0114, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit written comments to 

Jon Kurland, Assistant Regional 

Administrator for Protected Resources, 

Alaska Region NMFS, Attn: James 

Bruschi, P.O. Box 21668, Juneau, AK 

99082–1668. 

Instructions: NMFS may not consider 

comments sent by any other method, to 

any other address or individual, or 

received after the end of the comment 

period. All comments received are a 

part of the public record and will 

generally be posted for public viewing 

on www.regulations.gov without change. 

All personal identifying information 

(e.g., name, address), confidential 

business information, or otherwise 

sensitive information submitted 

voluntarily by the sender will be 

publicly accessible. NMFS will accept 

anonymous comments (enter ‘‘N/A’’ in 

the required fields if you wish to remain 

anonymous). 

Electronic copies of the Draft Impact 

Analysis Report for this revised 

proposed rule and a complete list of 

references cited in this revised proposed 

rule are available on the Federal 

eRulemaking Portal at 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2013- 

0114. 

FOR FURTHER INFORMATION CONTACT: 

Tammy Olson, NMFS Alaska Region, 

(907) 271–5006; Jon Kurland, NMFS 

Alaska Region, (907) 586–7638; or 

Heather Austin, NMFS Office of 

Protected Resources, (301) 427–8422. 

SUPPLEMENTARY INFORMATION: Section 

3(5)(A) of the ESA defines critical 

habitat as (1) the specific areas within 

the geographical area occupied by the 

species, at the time it is listed, on which 

are found those physical or biological 

features essential to the conservation of 

the species and which may require 

special management considerations or 

protection; and (2) specific areas outside 

the geographical area occupied by the 

species at the time it is listed, upon a 

determination by the Secretary of 

Commerce (Secretary) that such areas 

are essential for the conservation of the 

species (16 U.S.C. 1532(5)(A)). 

Conservation is defined in section 3(3) 

of the ESA as the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to this Act 

are no longer necessary (16 U.S.C. 

1532(3)). Section 3(5)(C) of the ESA 

provides that, except in those 

circumstances determined by the 

Secretary, critical habitat shall not 

include the entire geographical area 

which can be occupied by the 

threatened or endangered species. Also, 

by regulation, critical habitat shall not 

be designated within foreign countries 

or in other areas outside U.S. 

jurisdiction (50 CFR 424.12(g)). 

Section 4(b)(2) of the ESA requires the 

Secretary to designate critical habitat for 

threatened and endangered species on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact of specifying any 

particular area as critical habitat. This 

section also grants the Secretary 

discretion to exclude any area from 

critical habitat if he determines the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat. However, the 

Secretary may not exclude areas if such 

exclusion will result in the extinction of 

the species (16 U.S.C. 1533(b)(2)). 

Once critical habitat is designated, 

section 7(a)(2) of the ESA requires 

Federal agencies to ensure that actions 

they authorize, fund, or carry out are not 

likely to destroy or adversely modify 

that habitat (16 U.S.C. 1536(a)(2)). This 

requirement is additional to the section 

7(a)(2) requirement that Federal 

agencies ensure that their actions are 

not likely to jeopardize the continued 

existence of ESA-listed species. 

Specifying the geographic location of 

critical habitat also facilitates 

implementation of section 7(a)(1) of the 

ESA by identifying areas where Federal 

agencies can focus their conservation 

programs and use their authorities to 

further the purposes of the ESA. See 16 

U.S.C. 1536(a)(1). Critical habitat 

requirements do not apply to citizens 

engaged in actions on private land that 

do not involve a Federal agency. 

This revised proposed rule describes 

our revised proposed designation of 

critical habitat for the Arctic ringed seal, 

including supporting information on 

Arctic ringed seal distribution and 

habitat use, and the methods used to 

develop the revised proposed 

designation. The Arctic ringed seal is 

listed with the scientific name Phoca 

(=Pusa) hispida hispida. In this revised 

proposed rule, we use the genus name 

Pusa to reflect currently accepted use 

(e.g., Committee on Taxonomy (Society 

for Marine Mammalogy) 2019, 

Integrated Taxonomic Information 

System (online database) 2019). 

Background 

On December 28, 2012, we published 

a final rule to list the Arctic ringed seal 

as threatened under the ESA (77 FR 

76706). Section 4(b)(6)(C) of the ESA 

requires the Secretary to designate 

critical habitat concurrently with 

making a determination to list a species 

as threatened or endangered unless it is 

not determinable at that time, in which 

case the Secretary may extend the 

deadline for this designation by one 

year. At the time of listing, we 

announced our intention to designate 

critical habitat for the Arctic ringed seal 

in a separate rulemaking, as its critical 

habitat was not then determinable. 

Concurrently, we solicited information 

to assist us in (1) identifying the 

physical or biological features essential 

to the conservation of Arctic ringed 

seals, and (2) assessing the economic 

consequences of designating critical 

habitat for this species. Subsequently 

we researched, reviewed, and compiled 

the best scientific data available to 

develop a critical habitat proposal for 

the Arctic ringed seal. 

On December 3, 2014, we published 

a proposed rule to designate critical 

habitat for the Arctic ringed seal under 

the ESA (79 FR 71714). Due to a clerical 

error, that document contained 

mistakes, and we therefore published a 

corrected proposed rule on December 9, 

2014 (79 FR 73010). We requested 

public comment on this proposed 

designation through March 9, 2015. In 

response to comments, we extended the 

public comment period through March 

31, 2015 (80 FR 5498, February 2, 2015). 

We held five public hearings in Alaska 

on the proposed rule (80 FR 1618, 

January 13, 2015; 80 FR 5498, February 

2, 2015). 

Subsequently, on March 17, 2016, the 

listing of Arctic ringed seals as a 

threatened species was vacated by the 

U.S. District Court for the District of 

Alaska (Alaska Oil & Gas Ass’n v. Nat’l 

Marine Fisheries Serv., Case Nos. 4:14- 

cv-29–RRB, 4:15-cv-2–RRB, 4:15-cv-5– 

RRB, 2016 WL 1125744 (D. Alaska Mar. 

17, 2016)). This decision was reversed 

by the U.S. Court of Appeals for the 

Ninth Circuit on February 12, 2018 

(Alaska Oil & Gas Ass’n v. Ross, 722 F. 

App’x 666 (9th Cir. 2018)), and the 

listing was reinstated on May 15, 2018. 

On June 13, 2019, the Center for 

Biological Diversity filed a complaint in 

the U.S. District Court for the District of 

Alaska alleging that NMFS had failed to 

timely designate critical habitat for the 

Arctic ringed seal. Under a courtapproved stipulated settlement 

agreement between the parties (which 

was subsequently amended to extend 

the dates specified in the original order), 

NMFS agreed to submit a proposed 

determination concerning the 

designation of critical habitat for Arctic 

ringed seals to the Federal Register by 


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1454 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Proposed Rules 

March 15, 2021, and (to the extent a 

proposed rule has been published) a 

final rule by March 15, 2022. NMFS 

decided to issue this revised proposed 

rule rather than proceeding directly 

with a final rule because we are also 

considering the designation of critical 

habitat for the Beringia distinct 

population segment (DPS) of the Pacific 

bearded seal subspecies Erignathus 

barbatus nauticus (for which no 

proposed rule has been issued), and we 

expect that stakeholders will want to 

comment on both proposals 

simultaneously, because both species 

are ice-dependent and their habitats 

overlap. A revised proposed rule also 

affords an opportunity for additional 

public comment to help ensure that our 

decision is based on the best scientific 

data available, considering that several 

years have elapsed since our December 

9, 2014, proposal. We are therefore 

issuing this revised proposed rule in 

tandem with a proposed rule for 

bearded seal critical habitat. 

Summary of Revisions to Proposed 

Critical Habitat 

In this revised proposed critical 

habitat designation, we incorporate 

additional relevant information that 

became available since the publication 

of our 2014 proposed rule. Based on the 

best scientific data currently available, 

our understanding of the physical and 

biological features essential to the 

conservation of the Arctic ringed seal 

and the specific areas where those 

features occur has not changed 

markedly since 2014. However, in the 

preamble of this revised proposed rule 

we provide updated information in the 

Description and Natural History section 

about the Arctic ringed seal’s 

distribution and habitat use, and we 

include more details in the Specific 

Areas Containing the Essential Features 

section regarding the information 

considered in determining the areas that 

meet the definition of critical habitat for 

this species. After updating and 

evaluating the best scientific 

information available, we have also 

made the following changes from the 

December 9, 2014, proposed rule (79 FR 

73010): 

(1) We refined our descriptions of the 

essential features associated with sea 

ice, including the essential feature of sea 

ice suitable for the formation and 

maintenance of birth lairs. We now refer 

to ‘‘snow-covered sea ice’’ to underscore 

that this essential feature consists of a 

combination of sea ice and the on-ice 

snow layer within which subnivean 

birth lairs (snow caves) are constructed. 

In recognition of the limits of the data 

available on snow drift depths sufficient 

for these subnivean lairs, we clarify that 

such snow drifts are ‘‘typically’’ at least 

54 centimeters (cm) deep. 

(2) We modified the southern 

boundary of the proposed critical 

habitat designation to more accurately 

reflect where one or more of the 

essential features occur. Consistent with 

our 2014 proposed rule, in this revised 

proposed rule we primarily determined 

this boundary by identifying the 

southern extent of snow-covered sea ice 

essential for birth lairs. Birth lairs are 

used to shelter pups during whelping 

and nursing. We propose to define this 

essential feature as areas of seasonal 

landfast (shorefast) ice and dense, stable 

pack ice, excluding any bottom-fast ice 

extending seaward from the coastline 

(typically in waters less than 2 meters 

(m) deep), that have undergone 

deformation (i.e., rafting, ridging, or 

hummocking due to wind and ocean 

currents) and contain snowdrifts of 

sufficient depth, typically at least 54 cm 

deep (see Physical and Biological 

Features Essential to the Conservation of 

the Species section). We relied on the 

birth lair essential feature to determine 

the southern boundary of this proposed 

critical habitat designation because peak 

molting (for adults) takes place later in 

the spring as sea ice retreats northward, 

and also because the annual extent and 

timing of sea ice is especially variable 

in the southern periphery of the Arctic 

ringed seal’s habitat in the Bering Sea 

(Boveng et al. 2009, Stabeno et al. 

2012b, Frey et al. 2015). Consequently, 

we concluded that the southern extent 

of sea ice suitable for birth lairs also 

provides the best estimate of the 

southern extent of sea ice suitable for 

basking and molting. 

As discussed in detail below, because 

existing information is limited on 

whelping locations and the distribution 

of Arctic ringed seals in the Bering Sea 

during spring, a precise southern 

boundary for the critical habitat cannot 

be determined based on such 

information. Available estimates of 

snow-depth on Arctic sea ice derived 

from satellite remote-sensing data are 

spatially and temporally limited and are 

subject to a variety of sources of 

uncertainty (Spreen and Kern 2017, 

Sturm and Massom 2017, Webster et al. 

2018). Further, there is a high degree of 

variability evident in snow depths on 

sea ice and the spatial distribution of 

those depths within and between years 

(Sturm and Massom 2017, Webster et al. 

2018). We therefore turned to Sea Ice 

Index data maintained by the National 

Snow and Ice Data Center (NSIDC) 

(Fetterer et al. 2017, Version 3.0; 

accessed November 2019) for 

information on the estimated monthly 

position of the ice edge in the Bering 

Sea during spring based on a time series 

of satellite records. 

In our 2014 proposed rule, we based 

the southern boundary of proposed 

critical habitat on the estimated median 

ice edge position in April, which is the 

peak month for Arctic ringed seal 

whelping (Kelly et al. 2010a). We 

interpreted the limited information 

available at that time on whelping 

locations and the spring distribution of 

Arctic ringed seals in the Bering Sea as 

suggesting that snow-covered sea ice 

essential for birth lairs extends to some 

point south of St. Matthew Island and 

Nunivak Island. After verifying that the 

estimated position of the April median 

ice edge contour appeared generally 

consistent with this information, we 

defined the southern boundary in that 

proposed rule based on a simplified 

version of this contour. 

However, while developing this 

revised proposed rule, we recognized 

that suitable snow-covered sea ice 

would need to persist for several weeks 

for pups to be sheltered and nursed in 

birth lairs. We therefore considered 

whether the position of the ice edge 

during May (rather than April) would 

more accurately represent the southern 

extent of where snow-covered sea ice 

persists sufficiently to provide suitable 

conditions for pup development within 

birth lairs (and as noted above, 

potentially for basking and molting). We 

examined the estimated position of the 

May median ice edge for both the 30- 

year 1981 to 2010 reference period 

currently used by NSIDC for the Sea Ice 

Index (Fetterer et al. 2017, Version 3.0; 

accessed November 2019), and for the 

more recent 30-year period of 1990 to 

2019, which was calculated using 

methods and data types similar to those 

used for the Sea Ice Index. We note that 

the two most recent years included in 

the 1990 to 2019 period had record low 

ice extent in the Bering Sea (Stabeno 

and Bell 2019). The May median ice 

edge from the Sea Ice Index is located 

about 22 kilometers (km) southwest of 

St. Matthew Island and about 85 km 

north of Nunivak Island; and for the 

more recent 1990 to 2019 period, is 

generally similar to that of the Sea Ice 

Index, except that east of St. Matthew 

Island the ice edge for the more recent 

period has a more variable shape. As a 

result, although the median ice edge for 

both 30-year periods reaches the coast at 

a similar location south of Hooper Bay, 

between that location and St. Matthew 

Island, the median ice edge for the more 

recent period is primarily located north 

of Hooper Bay. 

After our 2014 proposed rule was 

issued, additional data also became 


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available on the spring distribution of 

ice-associated seals (including ringed 

seals) in the Bering Sea from aerial 

surveys conducted in 2012 and 2013 

(NMFS Marine Mammal Laboratory, 

unpublished data). We used these data 

to inform our determination of the 

southern boundary in this revised 

proposed rule. Overall, ringed seal 

observations appeared to be more 

frequent along transect segments flown 

north of St. Matthew and Nunivak 

Islands than those flown farther south 

(i.e., habitat we proposed for 

designation in 2014 based on the 

estimated median position of the ice 

edge in April). Although relatively few 

ringed seal pups were documented 

during these surveys (likely reflecting, 

at least in part, that pups were sheltered 

in subnivean lairs and thus would not 

have been detected), the majority of the 

limited detections of pups were located 

in Norton Sound, and few observations 

of pups were documented south of St. 

Matthew Island and Nunivak Islands. 

Taken as a whole, we concluded that 

the data currently available on whelping 

locations and the spring distribution of 

ringed seals in the Bering Sea suggest 

that information on the estimated 

position of the ice edge for May 

provides the best estimate of the 

southern extent of snow-covered sea ice 

that persists sufficiently to provide 

suitable conditions for pup 

development within birth lairs. As we 

explained above, we also concluded that 

this southern boundary most accurately 

defines the southern extent of sea ice 

essential for basking and molting. 

Therefore, in this revised proposed rule 

we use information on the position of 

the ice edge for May, rather than for 

April, to delineate the southern 

boundary of Arctic ringed seal critical 

habitat. Specifically, given the reduction 

in sea ice east of St. Matthew Island 

between the reference period used for 

the Sea Ice Index and the more recent 

30-year period described above, we 

elected to delineate the southern 

boundary to reflect the estimated 

position of the May median ice edge for 

the more recent 1990 to 2019 period. 

This revised proposed southern 

boundary is located roughly 125 km 

(western portion) to 325 km (eastern 

portion) north of the southern boundary 

we proposed in 2014. 

In our 2014 proposed rule, we 

referred to the estimated position of the 

April median ice edge for the 22-year 

1979 to 2000 reference period 

previously used (from 2002 through 

June 2013) for the Sea Ice Index. At that 

time, we reasoned that several of the 

more recent years included in the 1981 

to 2010 reference period had aboveaverage ice extent in the Bering Sea 

(e.g., Stabeno et al. 2012a), and we 

inferred that use of these data would 

have resulted in the inclusion of areas 

(farther south and east in the Bering 

Sea) that are unlikely to contain the sea 

ice essential features on a consistent 

basis in more than a few scattered 

portions of those areas. However, upon 

further review, we concluded that the 

30-year periods considered in this 

revised proposed rule provide a more 

appropriate basis for our analysis, in 

that more recent data on sea ice 

conditions are included and the median 

calculated over a lengthened 30-year 

period of record, which is commonly 

used in climatologies, incorporates more 

of the year-to-year variation in the sea 

ice extent. 

(3) We modified the textual 

description of the shoreward boundary 

of the proposed critical habitat 

designation. In our 2014 proposed rule, 

we described the shoreward boundary 

as the ‘‘coast line’’ of Alaska as that term 

has been defined in the Submerged 

Lands Act (‘‘the line of ordinary low 

water along that portion of the coast 

which is in direct contact with the open 

sea and the line marking the seaward 

limit of inland waters’’) (43 U.S.C. 

1301(c)). Upon further review, we 

concluded that delineating the 

shoreward boundary on this basis 

results in the omission of some smaller 

bays and shallow nearshore waters that 

contain the essential physical and 

biological features of habitat for Arctic 

ringed seals. Given the occurrence of 

Arctic ringed seal primary prey in 

shallow nearshore waters and evidence 

of ringed seal use of such waters during 

the open-water foraging period, in this 

revised proposed rule we delineate the 

shoreward boundary as the line that 

marks mean lower low water (MLLW). 

This proposed critical habitat does not 

extend into tidally-influenced channels 

of tributary waters of the Bering, 

Chukchi, or Beaufort seas. 

(4) We revised our analysis of the 

impacts of designating the proposed 

critical habitat for the Arctic ringed seal 

to reflect the revisions summarized 

above, and to incorporate the best data 

currently available. This analysis is 

summarized in this revised proposed 

rule and described in detail in the 

associated Draft Impact Analysis Report. 

(5) In response to information 

submitted by the U.S. Navy, we propose 

to exclude one particular area north of 

the Beaufort Sea shelf from the 

designation based on national security 

impacts because the benefits of 

exclusion outweigh the benefits of 

inclusion of this area. 

Description and Natural History 

The Arctic ringed seal is the smallest 

of the northern seals, with typical adult 

body size of 1.5 m in length and 70 

kilograms in weight (Kelly et al. 2010a). 

Age of sexual maturity for female Arctic 

ringed seals generally ranges from 3 to 

7 years (Smith 1987, Holst et al. 1999, 

Quakenbush et al. 2011, Crawford et al. 

2015), and for males ranges from 5 to 7 

years (Frost and Lowry 1981), but with 

geographic and temporal variability 

depending on animal condition and 

population structure (Kelly et al. 2010a). 

The average life span of ringed seals is 

about 15 to 28 years (Kelly et al. 2010a). 

Distribution and Habitat Use 

Arctic ringed seals are circumpolar 

and are found throughout ice-covered 

waters of the Arctic Ocean Basin and 

southward into adjacent seas, including 

the Bering, Chukchi, and Beaufort seas 

off Alaska’s coast (Frost and Lowry 

1981, Frost 1985, Kelly 1988, Rice 

1998). Ringed seals are adapted to 

remaining in heavily ice-covered areas 

throughout the fall, winter, and spring 

by using the stout claws on their 

foreflippers to maintain breathing holes 

in the ice. Arctic ringed seals are highly 

associated with sea ice, and use the ice 

as a substrate for resting, whelping 

(birthing), nursing, and molting 

(shedding and regrowing hair and outer 

skin layers). The seasonality of ice cover 

strongly influences Arctic ringed seal 

movements, foraging, reproductive 

behavior, and vulnerability to predation. 

Kelly et al. (2010b) referred to three 

periods important to Arctic ringed seal 

seasonal movements and habitat use: 

The winter through early spring 

‘‘subnivean period’’ when the seals rest 

primarily in subnivean lairs (snow caves 

on top of the ice); the late spring to early 

summer ‘‘basking period’’ between 

abandonment of the lairs and melting of 

the seasonal sea ice when the seals 

undergo their annual molt; and the 

open-water ‘‘foraging period’’ from ice 

break-up to freeze-up in the fall, when 

feeding occurs most intensively. 

Subnivean Period: With the onset of 

freeze-up in the fall, many Arctic ringed 

seals that summer in the Beaufort and 

Chukchi seas are thought to move 

generally southward with the advancing 

ice, while others remain in these waters 

over winter (Frost 1985). Adult 

movements during the subnivean period 

have been reported as typically limited, 

especially where ice cover is extensive 

(Kelly and Quakenbush 1990, Harwood 

et al. 2007, Kelly et al. 2010b, Crawford 

et al. 2012b, Luque et al. 2014), likely 

due to maintenance of breathing holes 

and social behavior during the breeding 


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season (Kelly et al. 2010b). However, 

some adult males have been found to 

make long-distance movements in the 

Chukchi and Beaufort seas during 

January to March (Quakenbush et al. 

2019). In contrast, subadult Arctic 

ringed seals have been observed to 

travel relatively long distances in winter 

to near the ice edge in the Bering Sea 

(Crawford et al. 2012a, 2019). 

During freeze-up, ringed seals surface 

to breathe in the remaining open water 

of cracks and leads, and as these 

openings in the ice freeze over, the seals 

open breathing holes that they maintain 

as the ice thickens by abrading the ice 

with the claws on their foreflippers 

(Smith and Stirling 1975). Ringed seals 

excavate lairs in snowdrifts over their 

breathing holes where snow depth is 

sufficient (e.g., McLaren 1958, Smith 

and Stirling 1975, Smith 1987). These 

subnivean lairs are occupied for resting, 

whelping, and nursing pups in areas of 

annual landfast (shorefast) ice (McLaren 

1958, Burns 1970, Kelly et al. 1986, 

Frost and Burns 1989, Smith et al. 1991, 

Oceana and Kawerak 2014) and stable 

pack ice (Finley et al. 1983, Fedoseev et 

al. 1988, Wiig et al. 1999, Pilfold et al. 

2014). Snowdrifts of sufficient depth 

typically occur only where the ice has 

undergone a low to moderate amount of 

deformation and where snow on the ice 

has drifted along pressure ridges or ice 

hummocks (Smith and Stirling 1975, 

Lydersen and Gjertz 1986, Furgal et al. 

1996, Lydersen 1998). 

Females give birth to a single pup in 

their lairs generally from mid-March 

through April, and the pups are nursed 

in the lairs for an average of 39 days 

(Hammill and Smith 1991), with 

considerable variation (Kelly et al. 

2010a). Females continue to forage 

throughout lactation while making 

frequent visits to birth lairs (Hammill 

1987, Kelly and Wartzok 1996, 

Simpkins et al. 2001). The pups develop 

foraging skills before weaning (Lydersen 

and Hammill 1993), and are normally 

weaned before break-up of spring ice 

(McLaren 1958, Smith 1973, Smith et al. 

1991, Hammill et al. 1991, Kelly 1988). 

Subnivean lairs provide protection 

from cold and predators throughout the 

winter months, but they are especially 

important for protecting newborn ringed 

seals. The lairs conceal ringed seals 

from predators, an advantage especially 

important to the small pups that start 

life with minimal tolerance for 

immersion in cold water (Smith et al. 

1991). Major predators of ringed seals 

include polar bears (Ursus maritimus) 

and Arctic foxes (Alopex lagopus) (e.g., 

Smith 1976, Frost and Burns 1989, 

Derocher et al. 2004, Thiemann et al. 

2008). Pups in lairs with thin snow 

cover are more vulnerable to polar bear 

predation than pups in lairs with thick 

snow cover (Hammill and Smith 1989, 

Ferguson et al. 2005). For example, 

Hammill and Smith (1991) noted that 

polar bear predation on ringed seal pups 

increased four-fold in a year when 

average snow depths in their study area 

decreased from 23 to 10 cm. Stirling and 

Smith (2004) surmised that most pups 

that survived exposure to cold after 

their subnivean lairs collapsed during 

unseasonal rains were eventually killed 

by polar bears, Arctic foxes, or gulls. 

Subnivean lairs also provide refuge 

from air temperatures too low for 

survival of ringed seal pups. When 

forced to flee into the water to avoid 

predators, the ringed seal pups that 

survive depend on the subnivean lairs 

to subsequently warm themselves 

(Smith et al. 1991). When snow depth 

is insufficient, pups can freeze in their 

lairs, as documented when roofs of lairs 

in the White Sea were only 5 to 10 cm 

thick (Lukin and Potelov 1978). Stirling 

and Smith (2004) also documented 

exposure of ringed seals to hypothermia 

following the collapse of subnivean lairs 

during unseasonal rains near 

southeastern Baffin Island. 

During winter and spring, ringed seals 

are found throughout the Chukchi and 

Beaufort seas (Frost 1985, Kelly 1988). 

In the Bering Sea, surveys indicate that 

ringed seals use nearly the entire ice 

field over the Bering Sea shelf. During 

an exceptionally high ice year (1976), 

Braham et al. (1984) found ringed seals 

present in the southeastern Bering Sea 

north of the Pribilof Islands to outer 

Bristol Bay, primarily north of the ice 

front. But the authors noted that most of 

these seals were likely immature or 

nonbreeding animals. Frost (1985) 

indicated that ringed seals ‘‘occur as far 

south as Nunivak Island and Bristol 

Bay, depending on ice conditions in a 

particular year, but generally are not 

abundant south of Norton Sound except 

in nearshore areas.’’ More recently, 

surveys conducted in the Bering Sea 

during spring documented numerous 

ringed seals in both nearshore and 

offshore habitat, including south of 

Norton Sound (NMFS Marine Mammal 

Laboratory, 2012–2013, unpublished 

data). Relatively few ringed seal pups 

were documented during these surveys, 

likely reflecting, at least in part, that 

pups were sheltered in subnivean lairs 

and thus would not have been detected 

during the surveys. Although the 

majority of the limited detections of 

pups were located in Norton Sound, 

pups were also documented in offshore 

habitat farther south. Satellite tracking 

data for ringed seals tagged in Kotzebue 

Sound, Alaska, showed that adults 

remained, for the most part, in the 

Chukchi Sea and Bering Sea north of St. 

Lawrence Island during winter and 

spring (Crawford et al. 2012a). However, 

movement data for ringed seals tagged 

near Utqiag ̇vik, Alaska, in 2011 

indicated that some adults overwintered 

toward the shelf break in the Bering Sea 

(North Slope Borough, 2012, 

unpublished data). Ringed seals tagged 

more recently in the Chukchi and 

Beaufort seas (primarily adults) used 

areas as far south as Nunivak Island 

during December to May, but the coreuse area was located in southern 

Kotzebue Sound (Quakenbush et al. 

2019). Finally, the subsistence harvest 

of ringed seal pups by hunters in 

Quinhagak, Alaska (Coffing et al. 1998), 

suggests that some ringed seals may 

whelp south of Nunivak Island. 

Basking Period: Numbers of ringed 

seals hauled out on the surface of the ice 

typically begin to increase during spring 

as the temperatures warm and the snow 

covering the seals’ lairs melts. Although 

the snow cover can melt rapidly, the ice 

remains largely intact and serves as a 

substrate for annual molting, during 

which time seals spend many hours 

basking in the sun (Smith 1973, Finley 

1979, Smith and Hammill 1981, Kelly 

and Quakenbush 1990, Kelly et al. 

2010b). Adults generally molt from midMay to mid-July (McLaren 1958), 

although there is regional variation (Ryg 

and ;ritsland 1991), and pups molt at 

or shortly after weaning (Kelly 1988, 

Lydersen and Hammill 1993). Subadult 

harbor seals (Phoca vitulina) and 

spotted seals (Phoca largha) tend to 

molt earlier than adults (AshwellErickson et al. 1986, Burns 2002, Daniel 

et al. 2003), and this may also be the 

case for subadult ringed seals (Kelly and 

Quakenbush 1990). Usually the largest 

numbers of basking seals are observed 

in June (Smith 1973, Finley 1979, Smith 

et al. 1979, Smith and Hammill 1981, 

Moulton et al. 2002). Feeding is reduced 

and the seals’ metabolism declines 

during the molt (Ashwell-Erickson et al. 

1986). As seals complete this phase of 

the annual pelage cycle and the seasonal 

sea ice melts during the summer, ringed 

seals spend increasing amounts of time 

in the water feeding (Kelly et al. 2010b). 

Most Arctic ringed seals that winter in 

the Bering and southern Chukchi seas 

are believed to migrate northward in 

spring as the ice edge recedes and spend 

the summer open-water foraging period 

in the pack ice of the northern Chukchi 

and Beaufort seas (Frost 1985). Existing 

information on the distribution and 

abundance of Arctic ringed seals in the 

U.S. Chukchi and Beaufort seas during 

the molting period comes largely from 

aerial surveys conducted for the most 


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part over the continental shelf within 

about 25 to 40 km of the Alaska coast. 

However, Bengtson et al. (2005) 

reported results for spring aerial surveys 

conducted during two successive years 

in the Chukchi Sea that included a 

limited number of offshore (beyond 43 

km from the coast) transect lines flown 

perpendicular from the coast up to 185 

km. Ringed seals were observed along 

these offshore transects, albeit at lower 

densities than transects flown closer to 

the coast. Aerial surveys conducted in 

spring to early summer (coincident with 

the periods of Arctic ringed seal 

reproduction and molting) in the U.S. 

Beaufort Sea to investigate bowhead 

whale density and distribution were 

concentrated over the continental shelf, 

but less extensive surveys were also 

conducted over the adjacent shelf slope 

and deeper waters up to about 100 km 

north of the shelf (Ljungblad 1981, 

Ljungblad et al. 1982, Ljungblad et al. 

1983, Ljungblad et al. 1984, Ljungblad 

et al. 1985, Ljungblad et al. 1986, 

Ferguson 2013). Incidental sightings of 

ringed seals were recorded throughout 

the survey area, including in the limited 

areas surveyed north of the shelf. 

Open-Water Foraging Period: Arctic 

ringed seals typically lose a significant 

proportion of their blubber mass in late 

winter through early summer and then 

replenish their blubber reserves during 

the open-water period, when the seals 

spend much of their time feeding (Ryg 

et al. 1990, Ryg and ;ritsland 1991, 

Belikov and Boltunov 1998, Goodyear 

1999, Young and Ferguson 2013). 

Most Arctic ringed seals that winter in 

the Bering and southern Chukchi seas 

are believed to migrate northward in 

spring as the ice edge recedes and spend 

the summer open-water foraging period 

in the pack ice of the northern Chukchi 

and Beaufort seas (Frost 1985). Arctic 

ringed seals are also dispersed in icefree areas of the Bering, Chukchi, and 

Beaufort seas during this period. 

Tracking data indicate that tagged 

ringed seals made extensive use of the 

continental shelf waters of the U.S. 

Chukchi and Beaufort seas during the 

open-water period (Crawford et al. 

2012a, Quakenbush et al. 2019, Von 

Duyke et al. 2020). Quakenbush et al. 

(2019) identified a high-use area for 

tagged ringed seals during the openwater period that included Barrow 

Canyon and the western Beaufort Sea 

over the continental shelf similar to 

where Citta et al. (2018) mapped a 

relatively high density of locations of 

tagged ringed seals during summer. 

Although tagged ringed seals tracked in 

U.S. waters tended to remain over the 

continental shelf, several individuals 

also made trips into the deep waters 

north of the shelf (Crawford et al. 2019, 

Quakenbush et al. 2019; Alaska 

Department of Fish and Game (ADF&G) 

and North Slope Borough, 2019, 

unpublished data, Von Duyke et al. 

2020). Von Duyke et al. (2020) reported 

that most of the forays by tagged ringed 

seals north of the shelf involved 

movements to retreating pack ice and 

included days when the seals hauled 

out on the ice. Dive recorders indicated 

that foraging-type movements occurred 

over both the continental shelf and 

north of the shelf, suggesting that both 

areas may be important during the openwater period. Similarly, during the 

open-water period, some, primarily 

subadult, ringed seals satellite-tagged in 

Svalbard, Norway, made forays into the 

Arctic Ocean Basin, and that time spent 

there increased after a major collapse of 

sea ice in this region, when the seals 

traveled farther to find sea ice (Hamilton 

et al. 2015, Hamilton et al. 2017). 

Observations of ringed seals near and 

beyond the outer extent of the U.S. 

Exclusive Economic Zone (EEZ) north of 

the shelf were also documented by 

marine mammal observers during a 

research geophysical survey conducted 

in the summer of 2010 (Beland and 

Ireland 2010). 

Diet 

High-quality abundant food is 

important to the annual energy budgets 

of Arctic ringed seals (Kelly et al. 

2010a). The seals eat a wide variety of 

prey spanning several trophic levels; 

however, most prey are small, and 

preferred fishes tend to be schooling 

species that form dense aggregations 

(Kovacs 2007). Arctic ringed seals rarely 

prey upon more than 10 to 15 species 

in any specific geographic location, and 

not more than 2 to 4 of those species are 

considered to be key prey (We ̨sławski et 

al. 1994). Despite regional and seasonal 

variations in the diets of Arctic ringed 

seals, fishes of the cod family tend to 

dominate their diet in many areas from 

late autumn through early spring (Kelly 

et al. 2010a). Arctic cod (Boreogadus 

saida) is often reported to be among the 

primary prey species, especially during 

the ice-covered periods of the year (e.g., 

Lowry et al. 1980, Bradstreet and Finley 

1983, Smith 1987, Belikov and Boltunov 

1998, Siegstad et al. 1998, Labansen et 

al. 2007, Quakenbush et al. 2011). 

Crustaceans are also commonly found in 

the diet of ringed seals and can be 

important in some regions, at least 

seasonally (e.g., Lowry et al. 1980, 

Bradstreet and Finley 1983, Smith 1987, 

Belikov and Boltunov 1998, Siegstad et 

al. 1998, Quakenbush et al. 2011). 

Critical Habitat Identification 

In the following sections, we describe 

the relevant definitions and 

requirements in the ESA and 

implementing regulations at 50 CFR part 

424, and the key information and 

criteria used to prepare this revised 

proposed critical habitat designation. In 

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

ESA, this revised proposed critical 

habitat designation is based on the best 

scientific data available. Our primary 

sources of information include the 

status review report for the ringed seal 

(Kelly et al. 2010a), our proposed and 

final rules to list four subspecies of 

ringed seals, including the Arctic ringed 

seal, under the ESA (75 FR 77476, 

December 10, 2010; 77 FR 76706, 

December 28, 2012), articles in peerreviewed journals, other scientific 

reports, and relevant Geographic 

Information System (GIS) and satellite 

data (e.g., shoreline data, U.S. maritime 

limits and boundaries data, sea ice 

extent) for geographic area calculations 

and mapping. 

To identify specific areas that may 

qualify as critical habitat for Arctic 

ringed seals, in accordance with 50 CFR 

424.12(b), we followed a five-step 

process: (1) Identify the geographical 

area occupied by the species at the time 

of listing; (2) identify physical or 

biological habitat features essential to 

the conservation of the species; (3) 

determine the specific areas within the 

geographical area occupied by the 

species that contain one or more of the 

physical or biological features essential 

to the conservation of the species; (4) 

determine which of these essential 

features may require special 

management considerations or 

protection; and (5) determine whether a 

critical habitat designation limited to 

geographical areas occupied would be 

inadequate to ensure the conservation of 

the species. Our evaluation and 

conclusions are described in detail in 

the following sections. 

Geographical Area Occupied by the 

Species 

The phrase ‘‘geographical areas 

occupied by the species,’’ which 

appears in the statutory definition of 

critical habitat, is defined by regulation 

as an area that may generally be 

delineated around species’ occurrences 

as determined by the Secretary (i.e., 

range) (50 CFR 424.02). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis, such as 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely, by vagrant individuals (Id.). 


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Based on existing literature, including 

available information on Arctic ringed 

seal sightings and movements, the range 

of the Arctic ringed seal was identified 

in the final ESA listing rule (77 FR 

76706; December 28, 2012) as the Arctic 

Ocean and adjacent seas, except west of 

157°00′ E (the Kamchatka Peninsula), 

where the Okhotsk subspecies of the 

ringed seal occurs, or in the Baltic Sea 

where the Baltic subspecies of the 

ringed seal is found. As noted 

previously, we cannot designate areas 

outside U.S. jurisdiction as critical 

habitat. Thus, the geographical area 

under consideration for this designation 

is limited to areas under the jurisdiction 

of the United States that Arctic ringed 

seals occupied at the time of listing. 

This area extends to the outer boundary 

of the U.S. EEZ in the Chukchi and 

Beaufort seas, and as far south as Bristol 

Bay in the Bering Sea (Kelly et al. 

2010a). 

Physical and Biological Features 

Essential to the Conservation of the 

Species 

The statutory definition of occupied 

critical habitat refers to ‘‘physical or 

biological features essential to the 

conservation of the species,’’ but the 

ESA does not specifically define or 

further describe these features. 

Implementing regulations at 50 CFR 

424.02, however, define such features as 

those that occur in specific areas and 

that are essential to support the lifehistory needs of the species. The 

regulations provide additional details 

and examples of such features. 

Based on the best scientific 

information available regarding the 

natural history of the Arctic ringed seal 

and the habitat features that are 

essential to support the species’ lifehistory needs, we have identified the 

following physical or biological features 

that are essential to the conservation of 

the Arctic ringed seal within U.S. waters 

occupied by the species. 

(1) Snow-covered sea ice habitat 

suitable for the formation and 

maintenance of subnivean birth lairs 

used for sheltering pups during 

whelping and nursing, which is defined 

as areas of seasonal landfast (shorefast) 

ice and dense, stable pack ice, 

excluding any bottom-fast ice extending 

seaward from the coastline (typically in 

waters less than 2 m deep), that have 

undergone deformation and contain 

snowdrifts of sufficient depth, typically 

at least 54 cm deep. 

Snow-covered sea ice habitat suitable 

for the formation and maintenance of 

subnivean birth lairs used for sheltering 

pups during whelping and nursing is 

essential to conservation of the Arctic 

ringed seal because without the 

protection of lairs, ringed seal pups are 

more vulnerable to freezing and 

predation (Lukin and Potelov 1978, 

Smith 1987, Hammill and Smith 1991, 

Smith et al. 1991, Smith and Lydersen 

1991, Stirling and Smith 2004, Ferguson 

et al. 2005). 

Snowdrifts of sufficient depth for 

birth lair formation and maintenance 

typically occur in deformed ice where 

drifting has taken place along pressure 

ridges or ice hummocks (Smith and 

Stirling 1975, Lydersen and Gjertz 1986, 

Smith 1987, Kelly 1988, Furgal et al. 

1996, Lydersen 1998). For purposes of 

assessing potential impacts of projected 

changes in April Northern Hemisphere 

snow conditions on ringed seals, Kelly 

et al. (2010a) considered 20 cm to be the 

minimum average snow depth required 

on areas of flat ice to form drifts of 

sufficient depth to support birth lair 

formation. Further, Kelly et al. (2010a) 

discussed that ringed seals require 

snowdrift depths of 50 to 65 cm or more 

to support birth lair formation. To 

identify the typical snowdrift depth for 

snow-covered sea ice habitat that we 

consider sufficient for Arctic ringed seal 

birth lair formation and maintenance, 

we derived a specific depth threshold as 

follows. At least seven studies have 

reported minimum snowdrift depth 

measurements at Arctic ringed seal birth 

lairs (typically measured near the center 

of the lairs or over the breathing holes) 

off the coasts of Alaska (Kelly et al. 

1986, Frost and Burns 1989), the 

Canadian Arctic Archipelago (Smith 

and Stirling 1975, Kelly 1988, Furgal et 

al. 1996), Svalbard (Lydersen and Gjertz 

1986), and in the White Sea (Lukin and 

Potelov 1978). The average minimum 

snowdrift depth measured at birth lairs 

was 54 cm across all of the studies 

combined, and 64 cm in the Alaska 

studies only. The average from studies 

in Alaska is based on data from fewer 

years over a shorter time span than from 

all seven studies combined (3 years 

during 1982–1984 versus 11 years 

during 1971–1993, respectively); 

consequently, the Alaska-specific 

average is more likely to be biased if an 

anomalous weather pattern occurred 

during its more limited timeframe. For 

this reason, we conclude that the 

average minimum snowdrift depth 

based on all studies combined (54 cm) 

provides the best estimate of the typical 

minimum snowdrift depth that is 

sufficient for birth lairs. 

Arctic ringed seals favor landfast ice 

as whelping habitat (e.g., Smith and 

Stirling 1975, 1978, Smith and Hammill 

1981, Lydersen and Gjertz 1986, Smith 

and Lydersen 1991, Pilfold et al. 2014). 

However, landfast ice extending 

seaward from shore may freeze to the 

sea bottom in very shallow water 

(typically less than about 1.5 to 2 m 

deep) during the course of winter 

(commonly referred to as ‘‘bottom-fast’’ 

ice; Reimnitz et al. 1977, Newbury 1983, 

Hill et al. 1991, Dammann et al. 2018, 

Dammann et al. 2019), rendering it 

unsuitable for ringed seal birth lairs. 

Arctic ringed seal whelping has also 

been observed on both nearshore and 

offshore drifting pack ice. As Reeves 

(1998) noted, nearly all research on 

Arctic ringed seal reproduction has been 

conducted in landfast ice, and the 

potential importance of stable but 

drifting pack ice has not been 

adequately investigated. Studies in the 

Barents Sea (Wiig et al. 1999), Baffin 

Bay (Finley et al. 1983) and the 

Canadian Beaufort Sea (Pilfold et al. 

2014) have documented pup production 

in pack ice, and Smith and Stirling 

(1975), citing unpublished data from the 

‘‘Western Arctic’’ (presumably the 

Canadian Beaufort Sea), also indicated 

that ‘‘the offshore areas of shifting but 

relatively stable ice are an important 

part of the breeding habitat.’’ Lentfer 

(1972) reported ‘‘a significant amount of 

ringed seal denning and pupping on 

moving heavy pack ice north of Barrow 

[i.e., Utqiag ̇vik].’’ Moreover, surveys 

conducted in the Bering and Chukchi 

seas during spring have documented 

ringed seals, including observations of 

pups, in offshore areas (NMFS Marine 

Mammal Laboratory, 2012–2013 and 

2016, unpublished data). Ringed seal 

vocalizations detected throughout the 

winter and spring in long-term 

autonomous acoustic recordings 

collected along the shelf break northnorthwest of Utqiag ̇vik, along with a 

seasonal change in the repertoire during 

the breeding season, also suggest that 

some Arctic ringed seals overwinter and 

breed in offshore pack ice (Jones et al. 

2014). We therefore conclude that the 

best scientific information available 

indicates that snow-covered sea ice 

habitat essential for the formation and 

maintenance of birth lairs includes areas 

of both landfast ice (except for any 

bottom-fast ice extending seaward from 

the coastline) and dense, stable pack ice 

that have undergone deformation and 

contain snowdrifts of sufficient depth, 

typically at least 54 cm deep. 

(2) Sea ice habitat suitable as a 

platform for basking and molting, which 

is defined as areas containing sea ice of 

15 percent or more concentration, 

excluding any bottom-fast ice extending 

seaward from the coastline (typically in 

waters less than 2 m deep). 

Sea ice habitat suitable as a platform 

for basking and molting is essential to 

conservation of the Arctic ringed seal 


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because molting is a biologicallyimportant, energy-intensive process that 

could incur increased energetic costs if 

it were to occur in water, or increased 

risk of predation if it were to occur on 

land due to the absence of readily 

accessible escape routes to avoid 

predators (i.e., breathing holes or 

natural openings in sea ice). Moreover, 

we are unaware of any studies 

establishing whether Arctic ringed seals 

can molt successfully in water, or 

reports of healthy Arctic ringed seals 

hauled out on land during the molt 

(they are known to come ashore during 

this period when sick). Traditional 

ecological knowledge indicates that 

ringed seals, mostly young individuals, 

have been occasionally seen hauled out 

on land in spring near Elim, Alaska, 

although molt status was not addressed 

(Huntington et al. 2015a). If Arctic 

ringed seals were unable to complete 

their annual molt successfully, they 

would be at increased risk from 

parasites and disease. 

During their annual molt, Arctic 

ringed seals transition from lair use to 

basking on the surface of the ice for long 

periods of time near breathing holes, 

lairs, or cracks in the ice (Kelly et al. 

2010a). The relatively long periods of 

time that ringed seals spend out of the 

water during the molt (e.g., Smith 1973, 

Smith and Hammill 1981, Kelly et al. 

2010b) have been ascribed to the need 

to maintain elevated skin temperatures 

during new hair growth (Feltz and Fay 

1966, Kelly and Quakenbush 1990). 

Higher skin temperatures are facilitated 

by basking on the ice and this may 

accelerate shedding and regrowth of 

hair and skin (Feltz and Fay 1966). 

Limited data are available on ice 

concentrations (percentage of ocean 

surface covered by sea ice) favored by 

Arctic ringed seals during the basking 

period, in particular for the period 

following ice breakup. Although a 

number of studies have reported an 

apparent preference for consolidated 

stable ice (i.e., landfast ice and 

consolidated pack ice), at least during 

the initial weeks of the basking period, 

some of these studies have also reported 

observations of Arctic ringed seals 

hauled out at low densities in 

unconsolidated ice (e.g., Stirling et al. 

1982, Kingsley et al. 1985, Kingsley and 

Stirling 1991, Lunn et al. 1997, 

Chambellant et al. 2012). Crawford et al. 

(2012a) reported that the average ice 

concentrations (plus or minus standard 

error (SE), a measure of variability in the 

data) used by ringed seals in the 

Chukchi and Bering seas during the 

basking period in June was 20 percent 

(SE = 7.8 percent) for subadults and 38 

percent (SE = 21.4 percent) for adults. 

Arctic ringed seals in the Chukchi Sea 

have also been observed basking in high 

densities on the last remnants of the 

seasonal sea ice during late June to early 

July, near the end of the molting period 

(S. Dahle, NMFS, personal 

communication, 2013). As discussed 

above, landfast ice extending seaward 

from shore may freeze to the sea bottom 

in very shallow water (typically less 

than about 1.5 to 2 m deep) during the 

course of winter and remain so into 

spring, potentially during part of the 

basking and molting period. There is 

also some evidence that ringed seal 

densities are lower in very shallow 

waters, at least in the Beaufort Sea 

during late May to early June (Moulton 

et al. 2002, Frost et al. 2004). Based on 

the best scientific information available, 

we therefore conclude that sea ice 

habitat essential for basking and molting 

is of at least 15 percent ice 

concentration, but does not include 

bottom-fast ice extending from the 

coastline. 

(3) Primary prey resources to support 

Arctic ringed seals, which are defined to 

be Arctic cod, saffron cod, shrimps, and 

amphipods. 

Primary prey resources are essential 

to conservation of the Arctic ringed seal 

because the seals likely rely on these 

prey resources the most to meet their 

annual energy budgets. Although Arctic 

ringed seals feed on a wide variety of 

vertebrate and invertebrate prey species, 

certain prey species appear to occupy a 

prominent role in their diets in waters 

along the Alaskan coast. Quakenbush et 

al. (2011; Tables 4–6) reported that prey 

items frequently consumed by ringed 

seals (considered here to be prey items 

identified in at least 25 percent of 

ringed seal stomachs collected) within 

the 1961 to 1984 and 1998 to 2009 

periods in the Bering and Chukchi seas 

included Arctic cod, saffron cod 

(Eleginus gracilis), shrimps (from the 

families Hippolytidae, Pandalidae, and 

Crangonidae), and amphipods 

(primarily from the families 

Gammaridae and Hyperiidae). Results 

reported by Crawford et al. (2015; 

Tables 1 and 2) indicated that prey 

items frequently consumed by ringed 

seals during May through July within 

the 1975 to 1984 and 2003 to 2012 

periods in the Bering Strait near 

Diomede included Arctic cod and 

shrimps (for seals ≥1 year of age); and 

in the Chukchi Sea near Shishmaref 

included saffron cod and shrimps (for 

both pups and seals ≥1 year of age). 

Dehn et al. (2007; Table 2) reported that 

in the Utqiag ̇vik vicinity, prey items 

frequently consumed by ringed seals 

between 1996 and 2001 (primarily 

during summer) included euphausiids 

(Thysanoessa spp.), cods (primarily 

Arctic and saffron cod), mysids (Mysis 

and Neomysis spp.), amphipods, and 

pandalid shrimps. Finally, Lowry et al. 

(1980; Table 2) found that prey items 

frequently consumed by ringed seals 

(considered here to be at least 25 

percent of the total food volume in 

ringed seal stomachs collected in any of 

the five seasonal samples) in the Bering 

and Chukchi seas included Arctic cod, 

saffron cod, shrimps, and amphipods, 

and in the central Beaufort Sea 

(approximately 80 km northwest of 

Prudhoe Bay) included Arctic cod, as 

well as gammarid and hyperiid 

amphipods. 

In summary, Arctic cod, saffron cod, 

shrimps, and amphipods were 

identified as prominent prey species for 

the studies conducted in both the Bering 

Sea and the Chukchi Sea, and Arctic 

cod and amphipods were also identified 

as prominent prey species for ringed 

seals sampled in the central Beaufort 

Sea. Therefore, based on these studies, 

we conclude that Arctic cod, saffron 

cod, shrimps, and amphipods are the 

primary prey resources of Arctic ringed 

seals in U.S. waters. Because Arctic 

ringed seals feed on a variety of prey 

items and regional and seasonal 

differences in diet have been reported, 

we conclude that areas in which the 

primary prey essential feature occurs are 

those that contain one or more of these 

particular prey resources. 

Specific Areas Containing the Essential 

Features 

To determine which areas qualify as 

critical habitat within the geographical 

area occupied by the species, we are 

required to identify ‘‘specific areas’’ that 

contain one or more of the physical or 

biological features essential to the 

conservation of the species (and that 

may require special management 

considerations or protection, as 

described below) (50 CFR 

424.12(b)(1)(iii)). Delineation of the 

specific areas is done at a scale 

determined by the Secretary to be 

appropriate (50 CFR 424.12(b)(1)). 

Regulations at 50 CFR 424.12(c) also 

require that each critical habitat area be 

shown on a map. 

In determining the scale and 

boundaries for the specific areas, we 

considered, among other things, the 

scales at which biological data are 

available and the availability of 

standardized geographical data 

necessary to map boundaries. Because 

the ESA implementing regulations allow 

for discretion in determining the 

appropriate scale at which specific areas 

are drawn (50 CFR 424.12(b)(1)), we are 

not required, nor was it possible, to 


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determine that each square inch, acre, or 

even square mile independently meets 

the definition of ‘‘critical habitat.’’ A 

main goal in determining and mapping 

the boundaries of the specific areas is to 

provide a clear description and 

documentation of the areas containing 

the identified essential features. This is 

ultimately fundamental to ensuring that 

Federal action agencies are able to 

determine whether their particular 

actions may affect the critical habitat. 

As we explain below, the essential 

features of Arctic ringed seal critical 

habitat, in particular the sea ice 

essential features, are dynamic and 

variable on both spatial and temporal 

scales. As climatic conditions change 

there may be increased variability in sea 

ice characteristics and spatial/temporal 

coverage, including with respect to the 

southern extent of sea ice in the spring 

and the timing and rate of the retreat of 

sea ice during spring and early summer. 

Arctic ringed seal movements and 

habitat use are strongly influenced by 

the seasonality of sea ice and the seals 

can range widely in response to the 

specific locations of the most suitable 

habitat conditions. We have therefore 

identified one specific area to propose 

as critical habitat in the Bering, 

Chukchi, and Beaufort seas based on the 

expected occurrence of the identified 

essential features. 

We first focused on identifying where 

sea ice essential features that support 

the species’ life history functions of 

whelping and nursing (when birth lairs 

are constructed and maintained), and 

molting occur. As discussed above, 

Arctic ringed seals are highly associated 

with sea ice, and the seals tend to 

migrate seasonally to maintain access to 

the ice. Arctic ringed seal whelping, 

nursing, and molting takes place in the 

Bering, Chukchi, and Beaufort seas. 

Therefore, we considered where the sea 

ice essential features occur in all of 

these waters. 

The dynamic nature of sea ice and the 

spatial and temporal variations in sea 

ice and on-ice snow cover conditions 

constrain our ability to map with 

precision the specific geographic 

locations where the sea ice essential 

features will occur. Sea ice 

characteristics such as ice extent, ice 

concentration, and ice surface 

topography vary spatiotemporally (e.g., 

Iacozza 2011). Snowdrift depths on sea 

ice are also spatiotemporally variable, as 

drifting of snow is determined by 

characteristics of the ice, such as surface 

topography and weather conditions 

(e.g., wind speed/direction and snowfall 

amounts), among other factors (Iacozza 

and Ferguson 2014). The specific 

geographic locations where essential sea 

ice habitat used by Arctic ringed seals 

occur vary from year to year, or even 

day to day, depending on many factors, 

including time of year, local weather, 

and oceanographic conditions (e.g., 

Frost et al. 1988, Frost et al. 2004, 

Gadamus et al. 2015). In addition, the 

duration that sea ice habitat essential for 

birth lairs, or for basking and molting, 

is present in any given location can vary 

annually depending on the rate of ice 

melt and other factors. The temporal 

overlap of Arctic ringed seal molting 

with whelping and nursing, combined 

with the dynamic nature of sea ice and 

on-ice snow depths, also makes it 

impracticable to separately identify 

specific areas where each of these 

essential features occur. However, it is 

unnecessary to distinguish between 

specific areas containing sea ice 

essential for birth lairs and sea ice 

essential for basking and molting 

because the ESA permits the 

designation of critical habitat where one 

or more essential features occur. 

Arctic ringed seals can range widely, 

which, combined with the dynamic 

variations in sea ice and on-ice snow 

depths, results in individuals 

distributing broadly and using sea ice 

habitats within a range of suitable 

conditions. We integrated these physical 

and biological factors into our 

identification of specific areas where 

one or both sea ice essential features 

occur by considering the information 

currently available on the seasonal 

distribution and movements of Arctic 

ringed seals during the annual period of 

reproduction and molting, along with 

satellite-derived estimates of the 

position of the sea ice edge over time. 

Although this approach allowed us to 

identify specific areas that contain one 

or both of the sea ice essential features 

at certain times, the available data 

supported delineation of specific areas 

only at a coarse scale. Consequently, we 

delineated a single specific area that 

contains the sea ice features essential to 

the conservation of Arctic ringed seals, 

as follows. 

We first identified the southern 

boundary of this specific area. As 

explained in detail previously in the 

Summary of Revisions to Proposed 

Critical Habitat section, we delineated 

the southern boundary of where one or 

both of the sea ice essential features 

occur to reflect the estimated position of 

the May median ice edge for the 1990 

to 2019 period. To simplify the southern 

boundary for purposes of delineation on 

maps, we modified this ice edge contour 

line as follows: (1) Intermediate points 

along the contour line between its 

intersection point with the seaward 

limit of the U.S. EEZ (61°18′15′′ N/ 

177°45′56′′ W) and the point southwest 

of St. Matthew Island where the contour 

line turns northeastward (60°7′ N/172°1′ 

W) were removed to form the segment 

of the southern boundary that extends 

from the seaward limit of the U.S. EEZ 

southeastward approximately 340 km; 

and (2) intermediate points along the 

contour line between the point 

southwest of St. Matthew Island and the 

point where the contour line reaches the 

coast near Cape Romanzof were 

removed and connected to the coast to 

form the second segment of the southern 

boundary that extends northeastward 

approximately 370 km (at 61°48′42′′ N/ 

166°6′5′′ W). This editing produced a 

simplified southern boundary that 

retains the general shape of the original 

ice edge contour line. 

Because Arctic ringed seals use nearly 

the entire ice field over the Bering Sea 

shelf in the spring, depending upon ice 

conditions in a given year, some ringed 

seals may use sea ice for whelping south 

of the southern boundary described 

above. But we concluded that the 

variability in the annual extent and 

timing of sea ice in this southernmost 

portion of the Arctic ringed seal’s range 

in the Bering Sea (e.g., Boveng et al. 

2009, Stabeno et al. 2012b, Frey et al. 

2015) renders these waters unlikely to 

contain the sea ice essential features on 

a consistent basis in more than limited 

areas. 

We then identified the northern 

boundary of the specific area that 

contains one or both of the sea ice 

essential features. As discussed above, 

Arctic ringed seals have a widespread 

distribution, including in offshore pack 

ice. The period during which ringed 

seals bask and molt overlaps with when 

many ringed seals also migrate north 

with the receding ice edge, sea ice and 

on-ice snow depths are dynamic and 

variable on both spatial and temporal 

scales, and sea ice suitable for basking 

and molting, and potentially for birth 

lairs, occurs over waters extending up to 

and beyond the seaward limit of the 

U.S. EEZ (see, e.g., Fetterer et al. 2017, 

Sea Ice Index Version 3.0, accessed 

November 2019, BlanchardWrigglesworth et al. 2018). We therefore 

concluded that the outer extent of the 

U.S. EEZ to the north, west, and east 

best defines the remaining boundaries of 

the area containing the sea ice essential 

features. We note that Canada contests 

the limits of the U.S. EEZ in the eastern 

Beaufort Sea, asserting that the line 

delimiting the two countries’ EEZs 

should follow the 141st meridian out to 

a distance of 200 nautical miles (nm) (as 

opposed to an equidistant line that 

extends seaward perpendicular to the 

coast at the U.S.-Canada land border). 


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The primary prey species essential to 

Arctic ringed seals are found in a range 

of habitats in U.S. waters occupied by 

these seals. Amphipods documented in 

the diet of Arctic ringed seals in U.S. 

waters include the pelagic hyperiid 

amphipod Parathemisto libellula; 

gammarid amphipod species that 

inhabit the underside of sea ice; and 

benthic amphipods and shrimps, which 

were well represented in sampling 

conducted for benthic assessments in 

the Beaufort and Chukchi seas (e.g., 

Bluhm et al. 2009, Grebmeier et al. 

2015, Ravelo et al. 2015, Sigler et al. 

2017). Notably, Arctic cod and saffron 

cod make up a substantial portion of the 

fish biomass in the U.S. Chukchi Sea 

and Arctic cod dominates the fish 

biomass in the U.S. Beaufort Sea (North 

Pacific Fishery Management Council 

2009, Logerwell et al. 2015). Arctic cod 

are regularly observed in association 

with sea ice, but they are also found in 

seasonally ice-free waters (e.g., 

Bradstreet et al. 1986, Parker-Stetter et 

al. 2011, Logerwell et al. 2015). The 

southern extent of the distribution of 

Arctic cod and its abundance in the 

northern and eastern Bering Sea are 

more limited and linked to the extent of 

ice cover and associated cold bottom 

temperatures (Love et al. 2016, 

Mecklenburg et al. 2016, Forster 2019, 

Marsh and Mueter 2019). The 

distribution of saffron cod overlaps to 

some extent with that of Arctic cod in 

the Chukchi and Beaufort seas, but this 

species is typically found in warmer 

water and has a more shallow coastal 

distribution that extends farther south 

in the Bering Sea (Love et al. 2016, 

Mecklenburg et al. 2016). The 

movements and foraging activities of 

Arctic ringed seals are strongly 

influenced by the seasonality of ice 

cover, the seals forage throughout the 

year (albeit with reduced feeding during 

molting), and they are broadly 

distributed and can range widely. Thus, 

although Arctic ringed seals may forage 

seasonally in some particular areas, 

such as Barrow Canyon, the seals also 

make extensive use of a diversity of 

habitats for foraging across much 

broader areas in the Bering, Chukchi, 

and Beaufort seas. Although tagged 

ringed seals tracked in U.S. waters 

tended to remain over the continental 

shelf, several individuals also made 

trips into the deep waters north of the 

shelf during the open-water period, 

where dive recorders indicated that the 

seals showed foraging-type movements 

(see Distribution and Habitat Use 

section). Because of these 

considerations, as well as the limits of 

the currently available information on 

habitat use of foraging Arctic ringed 

seals, we conclude that the seaward 

boundaries delineated above for the sea 

ice essential features are also 

appropriate for defining the specific 

area where the primary prey essential 

feature occurs. 

Crawford et al. (2012b) suggested that 

southern ice edge habitat in the Bering 

Sea near the shelf break south of the 

southern boundary specified above may 

be important for overwintering of 

subadult ringed seals, including for 

foraging. But aside from the limited data 

on subadult movements and dive 

behavior during winter near the ice edge 

and shelf break in the Bering Sea, we 

lack specific information on the 

significance of this habitat to the 

conservation of the species. We 

therefore conclude that it is appropriate 

to delineate the southern boundary as 

described above. 

Finally, we considered the shoreward 

extent of where one or more of the 

essential features occur. Essential fish 

habitat (EFH) has been described and 

identified for certain life stages of both 

Arctic cod and saffron cod, which are 

two of the essential Arctic primary prey 

species (North Pacific Fishery 

Management Council 2009; 83 FR 

31340, July 5, 2018). EFH for late 

juvenile and adult Arctic cod includes 

shallow nearshore areas of the 

continental shelf in the Chukchi and 

Beaufort seas, and EFH for late juvenile 

and adult saffron cod also includes a 

substantial portion of the shallow 

nearshore shelf habitat in the Chukchi 

Sea. Studies conducted in very shallow 

nearshore waters have documented the 

presence of one or both species at 

sampling sites in the Alaskan Beaufort 

Sea (Craig et al. 1982, Underwood et al. 

1995, Wiswar et al. 1995, Johnson et al. 

2010, Logerwell et al. 2015) and in 

Norton Sound (Barton 1978). There have 

been limited ringed seal surveys 

conducted in areas with very shallow 

waters (less than 3 to 5 m in depth). 

Nevertheless, there is some evidence 

that ringed seal densities are lower in 

such areas, at least in the Beaufort Sea 

during late May to early June (Moulton 

et al. 2002, Frost et al. 2004). Still, 

during the open-water foraging period 

and into early winter, satellite tracking 

data indicate some tagged ringed seals 

used shallow nearshore waters, for 

example, in Harrison Bay and Smith 

Bay (Quakenbush et al. 2019), and we 

infer that this nearshore habitat use is 

due to the availability of suitable prey. 

Similarly, information from traditional 

ecological knowledge indicates that 

some, primarily juvenile, ringed seals 

use shallow nearshore waters, including 

river mouths, for feeding during the 

summer in the Bering Strait region 

(Oceana and Kawerak 2014), and that in 

the fall, ringed seals return to and feed 

in Kotzebue Sound, including the 

relatively shallow waters of Hotham 

Inlet (Gadamus et al. 2015, Northwest 

Arctic Borough 2016). After considering 

the information currently available as a 

whole, principally based on occurrence 

of the primary prey essential feature, we 

are proposing to define the shoreward 

boundary of critical habitat as the line 

that marks MLLW. This specific area 

does not extend into tidally-influenced 

channels of tributary waters of the 

Bering, Chukchi, or Beaufort seas. 

Data to determine the boundaries of 

the specific area containing the essential 

features are limited. We specifically 

seek additional data and comments on 

our proposed delineation of these 

boundaries (see Public Comments 

Solicited section). 

Special Management Considerations or 

Protection 

A specific area within the geographic 

area occupied by a species may only be 

designated as critical habitat if the area 

contains one or more essential physical 

or biological feature that may require 

special management considerations or 

protection (16 U.S.C. 1532(5)(A)(ii); 50 

CFR 424.12(b)(iv)). ‘‘Special 

management considerations or 

protection’’ is defined as methods or 

procedures useful in protecting the 

physical or biological features essential 

to the conservation of listed species (50 

CFR 424.02). Courts have indicated that 

the ‘‘may require’’ standard requires that 

NMFS determine that special 

management considerations or 

protection of the essential features 

might be required either now or in the 

future (i.e., such considerations or 

protection need not be immediately 

required). See Cape Hatteras Access 

Pres. Alliance v. U.S. Dep’t of Interior, 

344 F. Supp. 2d 108, 123–24 (D.D.C. 

2004); Home Builders Ass’n of N. Cal. v. 

U.S. Fish & Wildlife Serv., 268 F. Supp. 

2d 1197, 1218 (E.D. Cal. 2003). The 

relevant management need may be ‘‘in 

the future based on possibility.’’ See 

Bear Valley Mut. Water Co. v. Salazar, 

No. SACV 11–01263–JVS, 2012 WL 

5353353, at *25 (C.D. Cal. Oct. 17, 

2012); see also Ctr. for Biological 

Diversity v. Norton, 240 F. Supp. 2d 

1090, 1098–99 (D. Ariz. 2003) (noting 

that the ‘‘may require’’ phrase can be 

rephrased and understood as ‘‘can 

require’’ or ‘‘possibly requires’’). 

We have identified four primary 

sources of potential threats to each of 

the habitat features identified above as 

essential to the conservation of Arctic 

ringed seals: Climate change; oil and gas 


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exploration, development, and 

production; marine shipping and 

transportation; and commercial 

fisheries. As further detailed below, 

both sea ice essential features and the 

primary prey essential feature may 

require special management 

considerations or protection as a result 

of impacts (either independently or in 

combination) from these sources. We 

note that our evaluation does not 

consider an exhaustive list of threats 

that could have impacts on the essential 

features, but rather considers the 

primary potential threats that we are 

aware of at this time that support our 

conclusion that special management 

considerations or protection of each of 

the essential features may be required. 

Further, we highlight particular threats 

associated with each source of impacts 

while recognizing that certain threats 

are associated with more than one 

source (e.g., marine pollution and 

noise). 

Climate Change 

The principal threat to the persistence 

of the Arctic ringed seal is anticipated 

loss of sea ice and reduced on-ice snow 

depths stemming from climate change. 

Climate-change-related threats to the 

Arctic ringed seal’s habitat are 

discussed in detail in the ringed seal 

status review report (Kelly et al. 2010a), 

as well as in our proposed and final 

rules to list the Arctic ringed seal as 

threatened. Total Arctic sea ice extent 

has been showing a decline through all 

months of the satellite record since 1979 

(Meier et al. 2014). Although there will 

continue to be considerable annual 

variability in the rate and timing of the 

breakup and retreat of sea ice, trends in 

climate change are moving toward ice 

that is more susceptible to melt (Markus 

et al. 2009), and areas of earlier spring 

ice retreat (Stammerjohn et al. 2012, 

Frey et al. 2015). Notably, February and 

March ice extent in the Bering Sea in 

2018 and 2019 were the lowest on 

record (Stabeno and Bell 2019), and in 

the spring of 2019, melt onset in the 

Chukchi Sea occurred 20 to 35 days 

earlier than the 1981 to 2010 average 

(Perovich et al. 2019). Activities that 

release carbon dioxide and other heattrapping greenhouse gases (GHGs) into 

the atmosphere, most notably those that 

involve fossil fuel combustion, are a 

major contributing factor to climate 

change and loss of sea ice 

(Intergovernmental Panel on Climate 

Change 2013, U.S. Global Climate 

Change Research Program 2017). Such 

activities may adversely affect the 

essential features of Arctic ringed seal 

habitat by diminishing snow-covered 

sea ice suitable for birth lairs and sea ice 

suitable for basking and molting, and by 

causing changes in the distribution, 

abundance, and/or species composition 

of prey resources (including Arctic 

ringed seal primary prey resources) (e.g., 

Kortsch et al. 2015, Alabia et al. 2018, 

Holsman et al. 2018, Thorson et al. 

2019, Huntington et al. 2020). Declines 

in the extent and timing of sea ice cover 

may also lead to increased shipping 

activity (discussed below) and other 

changes in anthropogenic activities, 

with the potential for increased risks to 

the habitat features essential to Arctic 

ringed seal conservation (Kelly et al. 

2010a). The best scientific data available 

do not allow us to identify a causal 

linkage between any particular single 

source of GHG emissions and 

identifiable effects on the sea ice and 

primary prey features essential to the 

conservation of the Arctic ringed seal. 

Regardless, given that the quality and 

quantity of these essential features, in 

particular sea ice, may be diminished by 

the effects of climate change, we 

conclude that special management 

considerations or protection may be 

necessary, either now or in the future, 

although the exact focus and nature of 

that management is presently 

undeterminable. 

Oil and Gas Activity 

Oil and gas exploration, development, 

and production activities in the U.S. 

Arctic may include: Seismic surveys; 

exploratory, delineation, and 

production drilling operations; 

construction of artificial islands, 

causeways, ice roads, shore-based 

facilities, and pipelines; and vessel and 

aircraft operations. These activities have 

the potential to affect the essential 

features of Arctic ringed seal critical 

habitat, primarily through pollution 

(particularly in the event of a large oil 

spill), noise, and physical alteration of 

the species’ habitat. 

Large oil spills (considered in this 

section to be spills of relatively great 

size, consistent with common usage of 

the term) are generally considered to be 

the greatest threat associated with oil 

and gas activities in the Arctic marine 

environment (Arctic Monitoring and 

Assessment Programme (AMAP) 2007). 

In contrast to spills on land, large spills 

at sea, especially when ice is present, 

are difficult to contain or clean up 

(National Research Council 2014, 

Wilkinson et al. 2017). Responding to a 

sizeable spill in the Arctic environment 

would be particularly challenging. 

Reaching a spill site and responding 

effectively would be especially difficult, 

if not impossible, in winter when 

weather can be severe and daylight 

extremely limited. Oil spills under ice 

or in ice-covered waters are the most 

challenging to deal with due to, among 

other factors, limitations on the 

effectiveness of current containment 

and recovery technologies when sea ice 

is present. The extreme depth and the 

pressure that oil was under during the 

2010 oil blowout at the Deepwater 

Horizon well in the Gulf of Mexico may 

not exist in the shallow continental 

shelf waters of the Beaufort and 

Chukchi seas. Nevertheless, the 

difficulties experienced in stopping and 

containing the Deepwater Horizon 

blowout, where environmental 

conditions, available infrastructure, and 

response preparedness were 

comparatively good, point toward even 

greater challenges in containing and 

cleaning a large spill in a much more 

environmentally severe and 

geographically remote Arctic location. 

Although planning, management, and 

use of best practices can help reduce 

risks and impacts, the history of oil and 

gas activities indicates that accidents 

cannot be eliminated (AMAP 2007). 

Data on large spills (e.g., operational 

discharges, spills from pipelines, 

blowouts) in Arctic waters are limited 

because oil exploration and production 

there has been limited. The Bureau of 

Ocean Energy Management (BOEM) 

(BOEM 2011) estimated the chance of 

one or more oil spills greater than or 

equal to 1,000 barrels occurring if 

development were to take place in the 

Beaufort Sea or Chukchi Sea Planning 

Areas as 26 percent for the Beaufort Sea 

over the estimated 20 years of 

production and development, and 40 

percent for the Chukchi Sea over the 

estimated 25 years of production and 

development. 

Icebreaking vessels, which may be 

used for in-ice seismic surveys or to 

manage ice near exploratory drilling 

ships, also have the potential to affect 

the sea ice essential features of Arctic 

ringed seal critical habitat through 

physical alteration of the sea ice (also 

see Marine Shipping and 

Transportation section). Other examples 

of activities associated with oil and gas 

activities that may physically alter the 

essential sea ice features include 

construction and maintenance of 

offshore ice roads, ice pads, and camps; 

as well as other offshore through-ice 

activities such as trenching and 

installation of pipelines. In addition, 

there is evidence that noise associated 

with activities such as seismic surveys 

can result in behavioral and other 

effects on fishes and invertebrate 

species (Carroll et al. 2017, Slabbekoorn 

et al. 2019), although the available data 

on such effects are currently limited, in 

particular for invertebrates (Hawkins et 


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al. 2015, Hawkins and Popper 2017), 

and the nature of potential effects 

specifically on the primary prey 

resources of Arctic ringed seals are 

unclear. 

In summary, a large oil spill could 

render areas containing the identified 

essential features unsuitable for use by 

Arctic ringed seals. In such an event, sea 

ice habitat suitable for whelping, 

nursing, and/or for basking and molting 

could be oiled. The primary prey 

resources could also become 

contaminated, experience mortality, or 

be otherwise adversely affected by 

spilled oil. In addition, disturbance 

effects (both physical alteration of 

habitat and acoustic effects) could alter 

the quality of the essential features of 

Arctic ringed seal critical habitat, or 

render habitat unsuitable. We conclude 

that the essential features of the habitat 

of the Arctic ringed seal may require 

special management considerations or 

protection in the future to minimize the 

risks posed to these features by oil and 

gas exploration, development, and 

production. 

Marine Shipping and Transportation 

The reduction in Arctic sea ice that 

has occurred in recent years has 

renewed interest in using the Arctic 

Ocean as a potential waterway for 

coastal, regional, and trans-Arctic 

marine operations and in extension of 

the navigation season in surrounding 

seas (Brigham and Ellis 2004, Arctic 

Council 2009). Marine traffic along the 

western and northern coasts of Alaska 

includes tug, towing, and cargo vessels, 

tankers, research and government 

vessels, vessels associated with oil and 

gas exploration and development, 

fishing vessels, and cruise ships (Adams 

and Silber 2017, U.S. Committee on the 

Marine Transportation System 2019). 

Automatic Identification System data 

indicate that the number of unique 

vessels operating annually in U.S. 

waters north of the Bering Sea in 2015 

to 2017 increased 128 percent over the 

number recorded in 2008 (U.S. 

Committee on the Marine 

Transportation System 2019). Climate 

models predict that the warming trend 

in the Arctic will accelerate, causing the 

ice to begin melting earlier in the spring 

and resume freezing later in the fall, 

resulting in an expansion of potential 

transit routes and a lengthening of the 

potential navigation season, and a 

continuing increase in vessel traffic 

(Khon et al. 2010, Smith and 

Stephenson 2013, Stephenson et al. 

2013, Huntington et al. 2015b, Melia et 

al. 2016, Aksenov et al. 2017, Khon et 

al. 2017). For instance, analysis of four 

potential growth scenarios (ranging from 

reduced activity to accelerated growth) 

suggests from 2008 to 2030, the number 

of unique vessels operating in U.S. 

waters north of 60° N (i.e., northern 

Bering sea and northward) may increase 

by 136 to 346 percent (U.S. Committee 

on the Marine Transportation System 

2019). 

The fact that nearly all vessel traffic 

in the Arctic, with the exception of 

icebreakers, purposefully avoids areas of 

ice, and primarily occurs during the icefree or low-ice seasons, helps to mitigate 

the risks of shipping to the essential 

habitat features identified for Arctic 

ringed seals. However, icebreakers pose 

greater risks to these features since they 

are capable of operating year-round in 

all but the heaviest ice conditions and 

are often used to escort other types of 

vessels (e.g., tankers and bulk carriers) 

through ice-covered areas. Furthermore, 

new classes of ships are being designed 

that serve the dual roles of both tanker/ 

carrier and icebreaker (Arctic Council 

2009). Therefore, if icebreaking 

activities increase in the Arctic in the 

future, as expected, the likelihood of 

negative impacts (e.g., habitat alteration 

and risk of oil spills) occurring in icecovered areas where Arctic ringed seals 

reside will likely also increase. We are 

not aware of any data currently 

available on the effects of icebreaking on 

the habitat of Arctic ringed seals during 

the reproductive and molting periods. 

Although impacts of icebreaking are 

likely to vary between species 

depending on a variety of factors, we 

note that Wilson et al. (2017) 

demonstrated the potential for impacts 

of icebreaking on Caspian seal (Pusa 

caspica) mothers and pups, including 

displacement, break-up of whelping and 

nursing habitat, and vessel collisions 

with mothers or pups. The authors 

noted that while pre-existing shipping 

channels were used by seals as artificial 

leads, which expanded access to 

whelping habitat, seals that whelp on 

the edge of such leads are vulnerable to 

vessel collision and repeated 

disturbance. 

In addition to the potential effects of 

icebreaking on the essential features, the 

maritime shipping industry transports 

various types of petroleum products, 

both as fuel and cargo. In particular, if 

increased shipping involves the tanker 

transport of crude oil or oil products, 

there would be an increased risk of 

spills (Arctic Climate Impact 

Assessment 2005, U.S. Arctic Research 

Commission 2012). Similar to oil and 

gas activities, the most significant threat 

posed by shipping activities is 

considered to be the accidental or illegal 

discharge of oil or other toxic 

substances carried by ships (Arctic 

Council 2009). 

Vessel discharges associated with 

normal operations, including sewage, 

grey water, and oily wastes are expected 

to increase as a result of increasing 

marine shipping and transportation in 

Arctic waters (Arctic Council 2009, 

Parks et al. 2019), which could affect the 

primary prey of Arctic ringed seals. 

Increases in marine shipping and 

transportation and other vessel traffic is 

also introducing greater levels of 

underwater noise (Arctic Council 2009, 

Moore et al. 2012), with the potential for 

behavioral and other effects in fishes 

and invertebrates (Slabbekoorn et al. 

2010, Hawkins and Popper 2017, 

Popper and Hawkins 2019), although 

there are substantial gaps in the 

understanding of such effects, in 

particular for invertebrates (Hawkins et 

al. 2015, Hawkins and Popper 2017), 

and the nature of potential effects 

specifically on the primary prey of 

Arctic ringed seals are unclear. 

We conclude that the essential 

features of the habitat of the Arctic 

ringed seal may require special 

management considerations or 

protection in the future to minimize the 

risks posed by potential shipping and 

transportation activities because: (1) 

Physical alteration of sea ice by 

icebreaking activities could reduce the 

quantity and/or quality of the sea ice 

essential features; (2) in the event of an 

oil spill, sea ice essential for birth lairs 

and/or for basking and molting could 

become oiled; and (3) the quantity and/ 

or quality of the primary prey resources 

could be diminished as a result of spills, 

vessel discharges, and noise associated 

with shipping, transportation, and icebreaking activities. 

Commercial Fisheries 

The specific area identified in this 

revised proposed rule as meeting the 

definition of critical habitat for the 

Arctic ringed seal overlaps with the 

Arctic Management Area and the Bering 

Sea and Aleutian Islands Management 

Area identified by the North Pacific 

Fishery Management Council. No 

commercial fishing is permitted within 

the Arctic Management Area due to 

insufficient data to support the 

sustainable management of a 

commercial fishery there. However, as 

additional information becomes 

available, commercial fishing may be 

allowed in this management area. Two 

of the primary Arctic ringed seal prey 

species identified as essential to the 

species’ conservation—Arctic cod and 

saffron cod—have been identified as 

likely initial target species for 

commercial fishing in the Arctic 


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Management Area in the future (North 

Pacific Fishery Management Council 

2009). 

In the northern portion of the Bering 

Sea and Aleutian Islands Management 

Area, commercial fisheries overlap with 

the southernmost portion of the 

proposed critical habitat. Portions of the 

proposed critical habitat also overlap 

with certain state commercial fisheries 

management areas. Commercial catches 

from waters of the specific area 

identified as containing the features 

essential to the conservation of the 

Arctic ringed seal primarily include: 

Pacific halibut (Hippoglossus 

stenolepis), several other flatfish 

species, Pacific cod (Gadus 

macrocephalus), several crab species, 

walleye pollock (Theragra 

chalcogramma), and several salmon 

species. 

Commercial fisheries may affect the 

primary prey resources identified as 

essential to the conservation of the 

Arctic ringed seal, through removal of 

prey biomass and potentially through 

modification of benthic habitat by 

fishing gear that contacts the seafloor. 

Given the potential changes in 

commercial fishing that may occur with 

the expected increasing length of the 

open-water season and distribution 

shifts of some economically valuable 

species responding to climate change 

(e.g., Stevenson and Lauth 2019, 

Thorson et al. 2019, Spies et al. 2020), 

we conclude that the primary prey 

resources essential feature may require 

special management considerations or 

protection in the future to address 

potential adverse effects of commercial 

fishing on this feature. 

Unoccupied Areas 

Section 3(5)(A)(ii) of the ESA 

authorizes the designation of specific 

areas outside the geographical area 

occupied by the species, if those areas 

are determined to be essential for the 

conservation of the species. Our 

regulations at 50 CFR 424.12(b)(2) 

require that we first evaluate areas 

occupied by the species, and only 

consider unoccupied areas to be 

essential where a critical habitat 

designation limited to geographical 

areas occupied would be inadequate to 

ensure the conservation of the species. 

Because Arctic ringed seals are 

considered to occupy their entire 

historical range that falls within U.S. 

jurisdiction, we find that there are no 

unoccupied areas within U.S. 

jurisdiction that are essential to their 

conservation. 

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

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

precludes designating as critical habitat 

any lands or other geographical areas 

owned or controlled by the Department 

of Defense (DOD), or designated for its 

use, that are subject to an Integrated 

Natural Resources Management Plan 

(INRMP) prepared under section 101 of 

the Sikes Act (16 U.S.C. 670a), if the 

Secretary determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation. See 16 U.S.C. 

1533(a)(3)(B)(i); 50 CFR 424.12(h). 

Where these standards are met, the 

relevant area is ineligible for 

consideration as potential critical 

habitat. The regulations implementing 

the ESA set forth a number of factors to 

guide consideration of whether this 

standard is met, including the degree to 

which the plan will protect the habitat 

of the species (50 CFR 424.12(h)(4)). 

This process is separate and distinct 

from the analysis governed by section 

4(b)(2) of the ESA, which directs us to 

consider the economic impact, the 

impact on national security, and any 

other relevant impact of designation, 

and affords the Secretary discretion to 

exclude particular areas if the benefits 

of exclusion outweigh the benefits of 

inclusion of such areas. See 16 U.S.C. 

1533(b)(2). 

Before publication of this revised 

proposed rule, we contacted DOD (Air 

Force and Navy) and requested 

information on any facilities or managed 

areas that are subject to an INRMP and 

are located within areas that could 

potentially be designated as critical 

habitat for the Arctic ringed seal. In 

response to our request, the Air Force 

provided information regarding twelve 

radar sites with an INRMP in place, 10 

of which (7 active and 3 inactive) are 

located adjacent to the area under 

consideration for designation as critical 

habitat: Barter Island Long Range Radar 

Site (LRRS), Cape Lisburne LRRS, Cape 

Romanzof, LRRS, Kotzebue LRRS, 

Oliktok LRRS, Point Barrow LRRS, Tin 

City LRRS, Bullen Point Short Range 

Radar Site (SRRS), Point Lay LRRS, and 

Point Lonely SRRS. The Air Force 

requested exemption of these radar sites 

pursuant to section 4(a)(3)(B)(i) of the 

ESA. Based on our review of the INRMP 

(draft 2020 update), the area being 

considered for designation as critical 

habitat, all of which occurs seaward of 

the MLLW line, does not overlap with 

DOD lands. Therefore, we conclude that 

there are no properties owned, 

controlled, or designated for use by 

DOD that are subject to ESA section 

4(a)(3)(B)(i) for this revised proposed 

critical habitat designation, and thus the 

exemptions requested by the Air Force 

are not necessary because no critical 

habitat would be designated in those 

radar sites. 

Analysis of Impacts Under Section 

4(b)(2) of the ESA 

Section 4(b)(2) of the ESA requires the 

Secretary to designate critical habitat for 

threatened and endangered species on 

the basis of the best scientific data 

available after taking into consideration 

the economic impact, the impact on 

national security, and any other relevant 

impact, of specifying any particular area 

as critical habitat. Regulations at 50 CFR 

424.19(b) also specify that the Secretary 

will consider the probable impacts of 

the designation at a scale that the 

Secretary determines to be appropriate, 

and that such impacts may be 

qualitatively or quantitatively described. 

The Secretary is also required to 

compare impacts with and without the 

designation (50 CFR 424.19(b)). In other 

words, we are required to assess the 

incremental impacts attributable to the 

critical habitat designation relative to a 

baseline that reflects existing regulatory 

impacts in the absence of the critical 

habitat. 

Section 4(b)(2) also describes an 

optional process by which the Secretary 

may go beyond the mandatory 

consideration of impacts and weigh the 

benefits of excluding any particular area 

(that is, avoiding the economic, national 

security, or other relevant impacts) 

against the benefits of designating it 

(primarily, the conservation value of the 

area). If the Secretary concludes that the 

benefits of excluding particular areas 

outweigh the benefits of designation, the 

Secretary may exclude the particular 

area(s) so long as the Secretary 

concludes on the basis of the best 

available scientific and commercial 

information that the exclusion will not 

result in extinction of the species (16 

U.S.C. 1533(b)(2)). NMFS and the U.S. 

Fish and Wildlife Service have adopted 

a joint policy setting out non-binding 

guidance explaining generally how we 

exercise our discretion under 4(b)(2). 

See Policy Regarding Implementation of 

Section 4(b)(2) of the Endangered 

Species Act (‘‘4(b)(2) policy,’’ 81 FR 

7226, February 11, 2016). 

While section 3(5) of the ESA defines 

critical habitat as ‘‘specific areas,’’ 

section 4(b)(2) requires the agency to 

consider the impacts of designating any 

‘‘particular area.’’ Depending on the 

biology of the species, the 

characteristics of its habitat, and the 

nature of the impacts of designation, 

‘‘particular’’ areas may be—but need not 

necessarily be—delineated so that they 


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are the same as the already identified 

‘‘specific’’ areas of potential critical 

habitat. For the reasons set forth below, 

we have exercised the discretion 

delegated to us by the Secretary to 

conduct an exclusion analysis based on 

national security impacts with respect 

to a particular area north of the Beaufort 

Sea shelf that meets the definition of 

critical habitat for the Arctic ringed seal, 

and we are proposing to exclude this 

area from the designation because we 

have concluded that the benefits of 

exclusion outweigh the benefits of 

inclusion. 

The primary impacts of a critical 

habitat designation arise from the ESA 

section 7(a)(2) requirement that Federal 

agencies ensure that their actions are 

not likely to result in the destruction or 

adverse modification of critical habitat 

(i.e., adverse modification standard). 

Determining these impacts is 

complicated by the fact that section 

7(a)(2) contains the overlapping 

requirement that Federal agencies 

ensure that their actions are not likely 

to jeopardize the species’ continued 

existence. One incremental impact of 

critical habitat designation is the extent 

to which Federal agencies change their 

proposed actions to ensure they are not 

likely to adversely modify critical 

habitat, beyond any changes they would 

make to ensure actions are not likely to 

jeopardize the continued existence of 

the species. Additional impacts of 

critical habitat designation include any 

state and/or local protection that may be 

triggered as a direct result of designation 

(we did not identify any such impacts 

for this proposed designation), and 

benefits that may arise from education 

of the public to the importance of an 

area for species conservation. 

In determining the impacts of 

designation, we focused on the 

incremental change in Federal agency 

actions as a result of critical habitat 

designation and the adverse 

modification standard (see Ariz. Cattle 

Growers’ Ass’n v. Salazar, 606 F.3d 

1160, 1172–74 (9th Cir. 2010) (holding 

that the U.S. Fish and Wildlife Service 

permissibly attributed the economic 

impacts of protecting the northern 

spotted owl as part of the baseline and 

was not required to factor those impacts 

into the economic analysis of the effects 

of the critical habitat designation)). We 

analyzed the impacts of this designation 

based on a comparison of conditions 

with and without the designation of 

critical habitat for the Arctic ringed seal. 

The ‘‘without critical habitat’’ scenario 

represents the baseline for the analysis. 

It includes process requirements and 

habitat protections already extended to 

the Arctic ringed seal under its ESA 

listing and under other Federal, state, 

and local regulations. The ‘‘with critical 

habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

critical habitat for the Arctic ringed seal. 

Our analysis for this revised proposed 

rule is described in detail in the 

associated Draft Impact Analysis Report 

that is available for public review and 

comment (see Public Comments 

Solicited). This analysis assesses the 

incremental costs and benefits that may 

arise due to the critical habitat 

designation, with economic costs 

estimated over the next 10 years. We 

chose the 10-year timeframe because it 

is lengthy enough to reflect the planning 

horizon for reasonably predicting future 

human activities, yet it is short enough 

to allow reasonable projections of 

changes in use patterns in an area, as 

well as of exogenous factors (e.g., world 

supply and demand for petroleum, U.S. 

inflation rate trends) that may be 

influential. This timeframe is consistent 

with guidance provided in Office of 

Management and Budget (OMB) 

Circular A–4 (OMB 2003, 2011). We 

recognize that economic costs of the 

designation are likely to extend beyond 

the 10-year timeframe of the analysis, 

though we have no information 

indicating that such costs in subsequent 

years would be different from those 

projected for the first 10-year period. 

Although not quantified or analyzed in 

detail due to the high level of 

uncertainty regarding longer-term 

effects, the Draft Impact Analysis Report 

includes a discussion of the potential 

types of costs and benefits that may 

accrue beyond the 10-year time window 

of the analysis. 

Below, we summarize our analysis of 

the impacts of designating the specific 

area identified in this revised proposed 

rule as meeting the definition of critical 

habitat for the Arctic ringed seal. 

Additional detail is provided in the 

Draft Impact Analysis Report prepared 

for this revised proposed rule. 

Benefits of Designation 

We expect that Arctic ringed seals 

will increasingly experience the ongoing 

loss of sea ice and changes in ocean 

conditions associated with climate 

change, and the significance of other 

habitat threats will likely increase as a 

result. As noted above, the primary 

benefit of a critical habitat designation— 

and the only regulatory consequence— 

stems from the ESA section 7(a)(2) 

requirement that all Federal agencies 

ensure that their actions are not likely 

to destroy or adversely modify the 

designated habitat. This benefit is in 

addition to the section 7(a)(2) 

requirement that all Federal agencies 

ensure that their actions are not likely 

to jeopardize listed species’ continued 

existence. Another benefit of critical 

habitat designation is that it provides 

specific notice of the areas and features 

essential to the conservation of the 

Arctic ringed seal. This information will 

focus future ESA section 7 consultations 

on key habitat attributes. By identifying 

the specific areas where the features 

essential to the conservation of the 

Arctic ringed seal occur, there may also 

be enhanced awareness by Federal 

agencies and the general public of 

activities that might affect those 

essential features. The designation of 

critical habitat can also inform Federal 

agencies regarding the habitat needs of 

Arctic ringed seals, which may facilitate 

using their authorities to support the 

conservation of this species pursuant to 

ESA section 7(a)(1), including to design 

proposed projects in ways that 

minimize adverse effects to critical 

habitat. 

In addition, the critical habitat 

designation may result in indirect 

benefits, as discussed in detail in the 

Draft Impact Analysis Report, including 

education and enhanced public 

awareness, which may help focus and 

contribute to conservation efforts for the 

Arctic ringed seal and its habitat. For 

example, by identifying areas and 

features essential to the conservation of 

the Arctic ringed seal, complementary 

protections may be developed under 

state or local regulations or voluntary 

conservation plans. These other forms of 

benefits may be economic in nature 

(whether market or non-market, 

consumptive, non-consumptive, or 

passive), educational, cultural, or 

sociological, or they may be expressed 

through beneficial changes in the 

ecological functioning of the species’ 

habitat, which itself yields ancillary 

welfare benefits (e.g., improved quality 

of life) to the region’s human 

population. For example, because the 

critical habitat designation is expected 

to result in enhanced conservation of 

the Arctic ringed seal over time, 

residents of the region who value these 

seals, such as subsistence users, are 

expected to experience indirect benefits. 

As another example, the geographic area 

identified in this revised proposed rule 

as meeting the definition of critical 

habitat for the Arctic ringed seal 

overlaps substantially with the range of 

the polar bear in the United States, and 

the Arctic ringed seal is the primary 

prey species of the polar bear, so the 

designation may also provide indirect 

conservation benefits to the polar bear. 

Indirect conservation benefits may also 


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extend to other co-occurring species, 

such as the Pacific walrus (Odobenus 

rosmarus divergens), the Beringia DPS 

bearded seal, and other seal species. 

It is not presently feasible to 

monetize, or even quantify, each 

component part of the benefits accruing 

from the designation of critical habitat 

for the Arctic ringed seal. Therefore, we 

augmented the quantitative 

measurements that are summarized here 

and discussed in detail in the Draft 

Impact Analysis Report with qualitative 

and descriptive assessments, as 

provided for under 50 CFR 424.19(b) 

and in guidance set out in OMB Circular 

A–4. Although we cannot monetize or 

quantify all of the incremental benefits 

of the critical habitat designation, we 

conclude that they are not 

inconsequential. 

Economic Impacts 

Direct economic costs of the critical 

habitat designation accrue primarily 

through implementation of section 

7(a)(2) of the ESA in consultations with 

Federal agencies to ensure that their 

proposed actions are not likely to 

destroy or adversely modify critical 

habitat. Those economic impacts may 

include both administrative costs and 

costs associated with project 

modifications. At this time, on the basis 

of how protections are currently 

implemented for Arctic ringed seals 

under the Marine Mammal Protection 

Act (MMPA) and as a threatened species 

under the ESA, we do not anticipate 

that additional requests for project 

modifications will result specifically 

from this designation of critical habitat. 

In other words, the critical habitat 

designation is not likely to result in 

more requested project modifications 

because our section 7 consultations on 

potential effects to Arctic ringed seals 

and our incidental take authorizations 

for Arctic activities under section 101(a) 

of the MMPA both typically address 

habitat-associated effects to the seals 

even in the absence of a critical habitat 

designation. As a result, the direct 

incremental costs of this critical habitat 

designation are expected to be limited to 

the additional administrative costs of 

considering Arctic ringed seal critical 

habitat in future section 7 consultations. 

To identify the types of Federal 

activities that may affect critical habitat 

for the Arctic ringed seal, and therefore 

would be subject to the ESA section 7 

adverse modification standard, we 

examined the record of section 7 

consultations for 2013 to 2019 to 

identify Federal activities that occur 

within the specific area being 

considered as critical habitat for the 

Arctic ringed seal and that may affect 

the essential features of the critical 

habitat. These activities include oil and 

gas related activities, dredge mining, 

navigation dredging, in-water 

construction, commercial fishing, oil 

spill response, and certain military 

activities. We projected the occurrence 

of these activities over the timeframe of 

the analysis (the next 10 years) using the 

best available information on planned 

activities and the frequency of recent 

consultations for particular activity 

types. Notably, all of the projected 

future Federal actions that may trigger 

an ESA section 7 consultation due to the 

potential to affect one or more of the 

essential habitat features also have the 

potential to affect Arctic ringed seals. In 

other words, none of the activities we 

identified would trigger a consultation 

solely on the basis of the critical habitat 

designation. We recognize there is 

inherent uncertainty involved in 

predicting future Federal actions that 

may affect the essential features of 

Arctic ringed seal critical habitat. We 

specifically seek comments and 

information regarding the types of 

activities that are likely be subject to 

section 7 consultation as a result of the 

proposed designation, and we will 

consider any relevant information 

received during the comment period in 

developing the economic analysis 

supporting the final rule (see Public 

Comment Solicited section). 

We expect that the majority of future 

ESA section 7 consultations analyzing 

potential effects on the proposed 

essential habitat features will involve 

NMFS and BOEM authorizations and 

permitting of oil and gas related 

activities. In assessing costs associated 

with these consultations, we took a 

conservative approach by estimating 

that future formal and informal 

consultations addressing these activities 

would be more complex than for other 

activities, and would therefore incur 

higher third party (i.e., applicant/ 

permittee) incremental administrative 

costs per consultation to consider effects 

to Arctic ringed seal critical habitat (see 

Draft Impact Analysis Report). These 

higher third party costs may not be 

realized in all cases because the 

administrative effort required for a 

specific consultation depends on factors 

such as the location, timing, nature, and 

scope of the potential effects of the 

proposed action on the essential 

features. There is also considerable 

uncertainty regarding the timing and 

extent of future oil and gas exploration 

and development in Alaska’s Outer 

Continental Shelf (OCS) waters, as 

indicated by Shell’s 2015 withdrawal 

from exploratory drilling in the Chukchi 

Sea and BOEM’s 2017–2022 OCS Oil 

and Gas Leasing Program. Although 

NMFS completed formal consultations 

for oil and gas exploration activities in 

the Chukchi Sea in all but two years 

between 2006 and 2015, no such 

activities or related consultations with 

NMFS have occurred since that time. 

As detailed in the Draft Impact 

Analysis Report, the total incremental 

costs associated with designating the 

entire area identified in this revised 

proposed rule as meeting the definition 

of critical habitat for the Arctic ringed 

seal over the next 10 years, in 

discounted present value terms, are 

estimated to be $800,000 (discounted at 

7 percent). In annual terms, the 

estimated range of discounted 

incremental costs is $58,000 to 

$106,000. About 80 percent of these 

incremental costs are expected to accrue 

from ESA section 7 consultations 

associated with oil and gas related 

activities in the Chukchi and Beaufort 

seas and adjacent onshore areas. 

Although not quantifiable at this time, 

the Draft Impact Analysis Report 

acknowledges that the oil and gas 

industry may also incur indirect costs 

associated with the critical habitat 

designation if future third-party 

litigation over specific section 7 

consultations creates delays or other 

sources of regulatory uncertainty. 

We have preliminarily concluded that 

the potential economic impacts 

associated with the critical habitat 

designation are modest both in absolute 

terms and relative to the level of 

economic activity expected to occur in 

the affected area, which is primarily 

associated with oil and gas activities 

that may occur in the Beaufort and 

Chukchi seas. As a result, and in light 

of the benefits of critical habitat 

designation discussed above and in the 

Draft Impact Analysis Report, we are not 

proposing to exercise our discretion to 

exclude any particular area from the 

critical habitat designation by 

evaluating whether the benefits of 

excluding such area based on economic 

impacts outweighs the benefits of 

including such area. 

National Security Impacts 

Section 4(b)(2) of the ESA also 

requires consideration of national 

security impacts. As noted in the 

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

section above, before publication of our 

2014 proposed rule, we contacted DOD 

regarding any potential impacts of 

designating critical habitat for the Arctic 

ringed seal on military operations. In a 

letter dated June 3, 2013, the DOD 

Regional Environmental Coordinator 

indicated that no impacts on national 


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security were foreseen from such a 

designation. As a result, in that 

proposed rule we did not identify any 

direct impacts from the critical habitat 

designation on activities associated with 

national security. 

Following publication of our 2014 

proposed rule, by a letter dated April 

17, 2015, DOD indicated that upon 

further review, it had identified national 

security concerns with the designation 

due to overlap of the proposed critical 

habitat with the area north of Prudhoe 

Bay to the Canadian border extending 

seaward from approximately 125 to 200 

nm that is used by the U.S. Navy for 

training and testing activities. DOD 

requested that NMFS exclude this area 

from the critical habitat designation due 

to national security impacts, expressing 

the view that designation of this area 

will impact national security if training 

and testing activities are prohibited or 

severely degraded, as detailed in a 

comment letter from the Navy dated 

March 30, 2015. More recently, by letter 

dated March 17, 2020, the Navy 

reiterated its request for this exclusion 

due to national security impacts, but 

modified the description of the 

particular area to extend seaward from 

approximately 100 to 200 nm (noting 

that ice conditions have required a shift 

closer to shore). 

The Navy indicated in its written 

communications that it conducts Arctic 

training and testing exercises, referred 

to by the Navy as Ice Exercises (ICEXs), 

on and below the sea ice within the 

particular area requested for exclusion. 

ICEXs and the accompanying base 

camps are established anywhere from 

100 to 200 nm north of Prudhoe Bay, 

Alaska. These exercises are planned to 

occur every 2 years and typically last 25 

to 45 days. ICEX camps include 

approximately 15 to 20 temporary 

shelters which support 30 to 65 

personnel. Training and testing 

activities include: Submarine activities; 

submarine surfacing, in which 

submarines avoid pressure ridges and 

conduct surfacings in first year ice or in 

polynyas; aircraft operations; building 

of runways; and other on-ice activities. 

The Navy noted that ICEX activities 

alter the ice by creating holes to deploy 

training and testing equipment and 

surfacing submarines. The Navy 

explained that due to the need for stable 

ice, flights are conducted immediately 

prior to buildup of the ICEX camp to 

determine the final location. 

The Navy also noted that the Office of 

Naval Research conducts research 

testing activities in the deep waters of 

the Beaufort Sea with acoustic sources 

and the use of icebreaking ships to 

deploy and retrieve these sources, 

which it plans to continue in the future, 

and expressed concern that the 

designation of critical habitat could 

impact these activities. The Navy 

indicated that it also conducts other 

training and testing activities in the 

Arctic region in support of gaining and 

maintaining military readiness in this 

region, and expects additional training 

and testing activities to occur in this 

region. The activities may be similar to 

those identified for ICEXs, and likely 

also would include vessel movements, 

icebreaking, and support transport by 

air and sea. Testing activities may 

include air platform/vehicle tests, 

missile testing, gunnery testing, and 

anti-submarine warfare tracking testing. 

The Navy expressed the concern that 

the critical habitat may impact national 

security if training and testing activities 

are prohibited or are required to be 

mitigated (for the protection of critical 

habitat) to the point where training and 

testing value is severely degraded, or if 

the Navy is unable to access certain 

locations within the Arctic region. The 

Navy indicated that if the critical habitat 

designation maintains the same 

boundaries identified in our 2014 

proposed designation, it does not 

foresee a way that its training and 

testing activities will be able to be 

conducted without significant impacts 

on those activities. In support of this 

assertion the Navy noted that through 

consultation with NMFS under section 

7 of the ESA for training on the east 

coast of the United States, the Navy 

agreed to restrict certain training 

activities in North Atlantic right whale 

critical habitat during the calving 

season, noting that those training 

activities can be conducted in nearby 

areas that are not designated as critical 

habitat during the calving season. The 

Navy indicated that due to the size of 

the area proposed in 2014 as critical 

habitat for the Arctic ringed seal and the 

uniqueness of Arctic conditions, the 

Navy would not be able to shift its 

training activities to other areas or to 

different times of the year. 

In addition to the information 

provided by the Navy, by letter dated 

April 30, 2020, the Air Force provided 

information concerning its activities at 

radar sites located adjacent to the area 

under consideration for designation as 

critical habitat (relevant sites identified 

above in the Application of ESA Section 

4(a)(3)(B)(i) section). The Air Force 

requested that we consider excluding 

critical habitat near these sites under 

section 4(b)(2) of the ESA due to 

impacts on national security. Although 

we are not proposing to exempt the 

radar sites pursuant to section 

4(a)(3)(B)(i) of the ESA, as discussed 

above, here we consider whether to 

propose excluding critical habitat 

located adjacent to these sites under 

section 4(b)(2). 

The Air Force noted that annual fuel 

and cargo resupply activities occur at 

these radar sites primarily in the 

summer and installation beaches are 

used for offload. The Air Force 

indicated that coastal operations at 

these installations are limited, and 

when barge operations occur, protective 

measures are implemented per the Polar 

Bear and Pacific Walrus Avoidance Plan 

(preliminary final 2020) associated with 

the INRMP in place for these sites. The 

Air Force discussed that it also conducts 

sampling and monitoring at these sites 

as part of the department’s Installation 

Restoration Program, and conducts 

larger scale contaminant or debris 

removal in some years that can require 

active disturbance of the shoreline. 

Coastal barge operations are a feature of 

both monitoring and removal actions. 

Federal agencies have an existing 

obligation to consult with NMFS under 

section 7(a)(2) of the ESA to ensure the 

activities they fund or carry out are not 

likely to jeopardize the continued 

existence of the Arctic ringed seal, 

regardless of whether or where critical 

habitat is designated for the species. The 

activities described in the Air Force’s 

exclusion request are localized and 

small in scale, and it is unlikely that 

modifications to these activities would 

be needed to address impacts to critical 

habitat beyond any modifications that 

may be necessary to address impacts to 

Arctic ringed seals. We therefore 

anticipate that the time and costs 

associated with consideration of the 

effects of future Air Force actions on 

Arctic ringed seal critical habitat under 

section 7(a)(2) of the ESA would be 

limited if any, and the consequences for 

the Air Force’s activities, even if we do 

not exempt or exclude the requested 

areas from critical habitat designation, 

would be negligible. 

As a result, and in light of the benefits 

of critical habitat designation discussed 

above and in the Draft Impact Analysis 

Report, we have preliminarily 

concluded that the benefits of exclusion 

do not outweigh the benefits of 

designation and are therefore not 

proposing to exercise our discretionary 

authority to exclude these particular 

areas pursuant to section 4(b)(2) of the 

ESA with respect to the Air Force’s 

request based on national security 

impacts. However, given the specific 

national security concerns identified by 

the Navy, below we provide an analysis 

of our decision to exercise our 

discretionary authority under section 

4(b)(2) of the ESA to propose excluding 


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the area requested by the Navy based on 

national security impacts. We will 

continue to coordinate with DOD 

regarding the identification of potential 

national security impacts that could 

result from the critical habitat 

designation to further inform our 

determinations regarding exclusions 

from the designation under section 

4(b)(2) based on national security 

impacts. 

Other Relevant Impacts 

Finally, under ESA section 4(b)(2) we 

consider any other relevant impacts of 

critical habitat designation to inform our 

decision as to whether to exclude any 

areas. For example, we may consider 

potential adverse effects on existing 

management or conservation plans that 

benefit listed species, and we may 

consider potential adverse effects on 

tribal lands or trust resources. In 

preparing this revised proposed 

designation, we have not identified any 

such management or conservation 

plans, tribal lands or resources, or 

anything else that would be adversely 

affected by the critical habitat 

designation. Some Alaska Native 

organizations and tribes have expressed 

concern that the critical habitat 

designation might restrict subsistence 

hunting of ringed seals or other marine 

mammals, such that important hunting 

areas should be considered for 

exclusion, but no restrictions on 

subsistence hunting are associated with 

this designation. Accordingly, we are 

not exercising our discretion to conduct 

an exclusion analysis pursuant to 

section 4(b)(2) of the ESA based on 

other relevant impacts. 

Proposed Exclusion Based on National 

Security Impacts 

Based on the written information 

provided by the Navy (summarized in 

the National Security Impacts section 

above), and clarifications provided 

through subsequent communications 

with the Navy regarding the location of 

the particular area requested for 

exclusion, we evaluated whether there 

was a reasonably specific justification 

indicating that designating certain areas 

as critical habitat would have a probable 

incremental impact on national security. 

In accordance with our 4(b)(2) policy 

(81 FR 7226, February 11, 2016), when 

the Navy provides a reasonably specific 

justification, we will defer to its expert 

judgment as to: (1) Whether activities on 

its lands or waters, or its activities on 

other lands or waters, have national 

security or homeland-security 

implications; (2) the importance of those 

implications; and (3) the degree to 

which the cited implications would be 

adversely affected by the critical habitat 

designation. In conducting our review of 

this exclusions request under section 

4(b)(2) of the ESA, we also gave great 

weight to the Navy’s national security 

concerns. To weigh the national security 

impacts against conservation benefits of 

a potential critical habitat designation, 

we considered the following: (1) The 

size of the area requested for exclusion 

compared with the total size of the 

specific area that meets the definition of 

critical habitat for the Arctic ringed seal; 

(2) the conservation value of the area 

requested for exclusion; (3) the 

likelihood that the Navy’s activities 

would affect the area requested for 

exclusions and trigger ESA section 7 

consultations, and the likelihood that 

Navy activities would need to be 

modified to avoid adverse modification 

or destruction of critical habitat; and (4) 

the likelihood that other Federal actions 

may occur that would no longer be 

subject to the ESA’s critical habitat 

provisions if the particular area were 

excluded from the designation. 

The area requested for exclusion 

comprises approximately 12 percent of 

the marine habitat that meets the 

definition of critical habitat for the 

Arctic ringed seal, and approximately 

41 percent of the portion of this marine 

habitat north of the Beaufort Sea shelf 

(north of the 200-m isobath). As noted 

by the Navy in its exclusion request, 

and as discussed above in the 

Distribution and Habitat Use and 

Specific Areas Containing the Essential 

Features sections, data currently 

available on ringed seal use of the 

requested exclusion area, particularly 

for the northernmost portion, are 

limited. As we discussed above (see 

Specific Areas Containing the Essential 

Features section), aerial surveys of 

ringed seals during the periods of 

reproduction and molting have been 

conducted for the most part over the 

continental shelf within about 25 to 40 

km of the Alaska coast. However, 

incidental sightings of ringed seals were 

documented up to about 100 km north 

of the Beaufort Sea shelf during 

bowhead whale aerial surveys 

conducted during spring and early 

summer. Although we are not aware of 

any similar data for U.S. waters farther 

north, the trend toward areas of earlier 

spring ice retreat lends support for our 

decision to propose defining the 

northern boundary of the specific area 

that meets the definition of critical 

habitat for the Arctic ringed seal as the 

outer extent of the U.S. EEZ. In 

addition, recent satellite telemetry data 

for ringed seals tagged on the Alaska 

coast show that during the open-water 

season, some of these seals made forays 

north of the Beaufort Sea shelf, 

including into parts of the area 

requested for exclusion (Crawford et al. 

2019, Quakenbush et al. 2019; Alaska 

Department of Fish and Game (ADF&G) 

and North Slope Borough, 2019, 

unpublished data, Von Duyke et al. 

2020). We note that the telemetry data 

for these seals are unlikely to fully 

reflect the distribution of this species in 

U.S. waters, for instance because, as 

discussed by Citta et al. (2018), the 

distribution of telemetry locations for 

tagged ringed seals is influenced by the 

location and season of tagging. Thus, 

although the area requested for 

exclusion contains one or more of the 

essential features of the Arctic ringed 

seal’s critical habitat, data are limited to 

inform our assessment of the relative 

value of this area to the conservation of 

the species. Dive recorders indicated 

that foraging-type movements of some of 

these tagged seals occurred over both 

the continental shelf and north of the 

shelf, suggesting that both areas may be 

important to ringed seals during the 

open-water period. Observations of 

ringed seals near and beyond the outer 

extent of the U.S. EEZ in the Arctic 

Ocean Basin were also documented by 

marine mammal observers during a 

research geophysical survey conducted 

in the summer of 2010. 

The testing and training activities 

described in the Navy’s exclusion 

request are temporally limited, 

localized, and small in scale, and it is 

very unlikely that modifications to these 

activities would be needed to address 

impacts to critical habitat beyond any 

modifications that may be necessary to 

address impacts to Arctic ringed seals. 

Moreover, the Navy has an existing 

obligation to consult with NMFS under 

section 7(a)(2) of the ESA to ensure the 

activities it funds or carries out are not 

likely to jeopardize the continued 

existence of the Arctic ringed seal, 

regardless of whether or where critical 

habitat is designated for the species. 

Aside from the Navy’s training and 

testing activities, we are aware of few 

other Federal actions that would be 

expected to affect the particular area 

requested for exclusion. 

We recognize that there are limited 

data currently available to inform our 

evaluation of the conservation value to 

the Arctic ringed seal of the particular 

area requested for exclusion. Therefore, 

given the Navy’s specific justification 

regarding potential impacts on national 

security stemming from the potential 

designation of critical habitat for the 

Arctic ringed seal in the particular area 

requested for exclusion, and the fact 

that few other Federal actions are 


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expected to occur that would no longer 

be subject to consideration of effects on 

Arctic ringed seal critical habitat if the 

particular area were excluded from the 

designation, we have concluded that the 

benefits of excluding this particular area 

due to national security impacts 

outweigh the benefits of designating this 

area as critical habitat for the Arctic 

ringed seal. Moreover, failure to 

designate this area as critical habitat is 

not expected to result in the extinction 

of the species because the area is small 

in comparison to the entirety of the 

proposed critical habitat, we have no 

reason to believe it is more valuable for 

Arctic ringed seals than other portions 

of the proposed critical habitat, and 

threats to Arctic ringed seals in this area 

(including habitat-related threats) from 

Federal actions would continue to be 

subject to section 7 consultations. 

Consequently, we are proposing to 

exclude this area from the designation 

of critical habitat for the Arctic ringed 

seal, and we adjusted the proposed 

boundaries accordingly. We modified 

the curvilinear southern boundary of the 

proposed exclusion area recommended 

by the Navy to simplify its delineation 

while still including the full area the 

Navy recommended, resulting in a 

slightly larger area (about 1 percent 

more area) being proposed for 

exclusion. 

As explained in the Draft Impact 

Analysis Report, the total incremental 

costs associated with the particular area 

we are proposing to exclude, which 

stem from administrative costs of 

adding critical habitat analyses to 

consultations on the Navy’s ICEX 

activities over the next 10 years, are 

estimated to be $13,300 (discounted at 

7 percent). Thus, the total incremental 

costs associated with the revised 

proposed critical habitat designation 

over the next 10 years, if this area is 

excluded, are estimated to be $786,000 

(discounted at 7 percent). In annual 

terms, the estimated range of discounted 

incremental costs is $57,000 to 

$105,000. 

Revised Proposed Critical Habitat 

Designation 

We propose to designate as critical 

habitat a specific area of marine habitat 

in Alaska and offshore Federal waters of 

the Bering, Chukchi, and Beaufort seas, 

within the geographical area presently 

occupied by the Arctic ringed seal. This 

critical habitat area contains physical or 

biological features essential to the 

conservation of Arctic ringed seals that 

may require special management 

considerations or protection. Based on 

national security impacts, we propose to 

exclude a particular area of marine 

habitat north of the Beaufort Sea shelf 

that is used by the Navy for training and 

testing activities because we determined 

that the benefits to national security of 

exclusion outweigh the benefits of 

designation. We have not identified any 

unoccupied areas that are essential to 

the conservation of the Arctic ringed 

seal, and thus we are not proposing any 

such areas for designation as critical 

habitat. In accordance with our 

regulations regarding critical habitat 

designation (50 CFR 424.12(c)), the map 

included in the proposed regulation, as 

clarified by the accompanying 

regulatory text, would constitute the 

official boundary of the proposed 

designation. 

Effects of Critical Habitat Designation 

Section 7(a)(2) of the ESA requires 

Federal agencies, including NMFS, to 

ensure that any action authorized, 

funded, or carried out by the agency is 

not likely to jeopardize the continued 

existence of any threatened or 

endangered species or destroy or 

adversely modify designated critical 

habitat. Federal agencies must consult 

with us on any agency action that may 

affect listed species or critical habitat. 

During interagency consultation, we 

evaluate the agency action to determine 

whether the action is likely to adversely 

affect listed species or critical habitat. 

The potential effects of a proposed 

action may depend on, among other 

factors, the specific timing and location 

of the action relative to the seasonal 

presence of essential features or 

seasonal use of critical habitat by listed 

species for essential life history 

functions. Although the requirement to 

consult on an action that may affect 

critical habitat applies regardless of the 

season, NMFS addresses spatialtemporal considerations when 

evaluating the potential impacts of a 

proposed action during the ESA section 

7 consultation process. For example, if 

an action with short-term effects is 

proposed during a time of year that sea 

ice is not present, we may advise that 

consequences to critical habitat are 

unlikely. If we conclude in a biological 

opinion pursuant to section 7(a)(2) of 

the ESA that the agency action would 

likely result in the destruction or 

adverse modification of critical habitat, 

we would recommend reasonable and 

prudent alternatives to the action that 

avoid that result. 

Reasonable and prudent alternatives 

are defined in 50 CFR 402.02 as 

alternative actions identified during 

formal consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid the destruction or adverse 

modification of critical habitat. NMFS 

may also provide with the biological 

opinion a statement containing 

discretionary conservation 

recommendations. Conservation 

recommendations are advisory and are 

not intended to carry any binding legal 

force. 

Regulations at 50 CFR 402.16 require 

Federal agencies that have retained 

discretionary involvement or control 

over an action, or where such 

discretionary involvement or control is 

authorized by law, to reinitiate 

consultation on previously reviewed 

actions in instances where: (1) Critical 

habitat is subsequently designated; or 

(2) new information or changes to the 

action may result in effects to critical 

habitat not previously considered 

(among other reasons for reinitiation). 

Consequently, some Federal agencies 

may request reinitiation of consultation 

or conference with us on actions for 

which consultation has been completed, 

if those actions may affect designated 

critical habitat for the Arctic ringed seal. 

Activities subject to the ESA section 7 

consultation process include activities 

on Federal lands as well as activities 

requiring a permit or other authorization 

from a Federal agency (e.g., a section 

10(a)(1)(B) permit from NMFS), or some 

other Federal action, including funding 

(e.g., Federal Highway Administration 

or Federal Emergency Management 

Agency funding). Consultation under 

section 7 of the ESA would not be 

required for Federal actions that do not 

affect listed species or designated 

critical habitat, and would not be 

required for actions on non-Federal and 

private lands that are not carried out, 

funded, or authorized by a Federal 

agency. 

Activities That May Be Affected by 

Critical Habitat Designation 

Section 4(b)(8) of the ESA requires, to 

the maximum extent practicable, in any 

proposed regulation to designate critical 

habitat, an evaluation and brief 

description of those activities that may 

adversely modify such habitat or that 

may be affected by such designation. A 

variety of activities may affect Arctic 

ringed seal critical habitat and, if carried 

out, funded, or authorized by a Federal 

agency, may be subject to ESA section 

7 consultation. Such activities include: 

In-water and coastal construction; 

activities that generate water pollution; 

dredging; commercial fishing; oil and 

gas exploration, development, and 

production; oil spill response; and 


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certain military readiness activities. As 

explained above, at this time, on the 

basis of how protections are currently 

implemented for Arctic ringed seals 

under the MMPA and as a threatened 

species under the ESA, we do not 

anticipate that additional requests for 

project modifications will result 

specifically from this proposed 

designation of critical habitat. 

Private or non-Federal entities may 

also be affected by the proposed critical 

habitat designation if a Federal permit is 

required, Federal funding is received, or 

the entity is involved in or receives 

benefits from a Federal project. These 

activities would need to be evaluated 

with respect to their potential to destroy 

or adversely modify Arctic ringed seal 

critical habitat. As noted in the Public 

Comments Solicited section below, 

NMFS also requests information on the 

types of non-Federal activities that may 

be affected by this rulemaking. 

Public Comments Solicited 

To ensure the final action resulting 

from this revised proposal will be as 

accurate and effective as possible, we 

solicit comments and information from 

the public, other concerned government 

agencies, Alaska Native tribes and 

organizations, the scientific community, 

industry, non-governmental 

organizations, and any other interested 

parties concerning our revised proposed 

designation of critical habitat for the 

Arctic ringed seal. In particular, we are 

interested in data and information 

regarding the following: (1) The 

distribution and habitat use of Arctic 

ringed seals; (2) the identification, 

location, and quality of physical or 

biological features essential to the 

conservation of the Arctic ringed seal, 

including in particular, the delineation 

of the northern, southern, and 

shoreward boundaries of where one or 

more of these features occur; (3) the 

potential impacts of designating the 

proposed critical habitat, including 

information on the types of Federal 

activities that may trigger an ESA 

section 7 consultation; (4) current or 

planned activities in the area proposed 

for designation and their possible 

impacts on the proposed critical habitat; 

(5) the potential effects of the 

designation on Alaska Native cultural 

practices and villages; (6) any 

foreseeable economic, national security, 

Tribal, or other relevant impacts 

resulting from the revised proposed 

designation; (7) whether any data used 

in the economic analysis needs to be 

updated; (8) foreseeable additional costs 

arising specifically from the designation 

of critical habitat for the Arctic ringed 

seal that have not been identified in the 

Draft Impact Analysis Report; (9) 

additional information regarding 

impacts on small businesses and 

federally recognized tribes not 

identified in the Draft Impact Analysis 

Report; and (10) whether any particular 

areas that we are proposing for critical 

habitat designation should be 

considered for exclusion under section 

4(b)(2) of the ESA and why. For these 

described impacts or benefits, we 

request that the following specific 

information (if relevant) be provided to 

inform our ESA section 4(b)(2) analysis: 

(1) A map and description of the 

affected area; (2) a description of the 

activities that may be affected within 

the area; (3) a description of past, 

ongoing, or future conservation 

measures conducted within the area that 

may protect Arctic ringed seal habitat; 

and (4) a point of contact. 

You may submit your comments and 

information concerning this revised 

proposed rule by any one of the 

methods described under ADDRESSES

above. The revised proposed rule and 

supporting documentation can be found 

on the Federal eRulemaking Portal at 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2013- 

0114. We will consider all comments 

and information received during the 

reopened comment period for this 

revised proposed rule in preparing the 

final rule. Accordingly, the final 

decision may differ from this revised 

proposed rule. 

References Cited 

A complete list of all references cited 

in this revised proposed rule can be 

found on the Federal eRulemaking 

Portal and is available upon request 

from the NMFS office in Juneau, Alaska 

(see ADDRESSES). 

Classifications 

National Environmental Policy Act 

We have determined that an 

environmental analysis as provided for 

under the National Environmental 

Policy Act of 1969 for critical habitat 

designations made pursuant to the ESA 

is not required. See Douglas Cnty. v. 

Babbitt, 48 F.3d 1495, 1502–08 (9th Cir. 

1995). 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

(RFA) (5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996, whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

not-for-profit organizations, and small 

government jurisdictions). We have 

prepared an initial regulatory flexibility 

act analysis (IRFA) that is included as 

part of the Draft Impact Analysis Report 

for this revised proposed rule. The IRFA 

estimates the potential number of small 

businesses that may be directly 

regulated by this revised proposed rule, 

and the impact (incremental costs) per 

small entity for a given activity type. 

Specifically, based on an examination of 

the North American Industry 

Classification System (NAICS), this 

analysis classifies the economic 

activities potentially directly regulated 

by the proposed action into industry 

sectors and provides an estimate of their 

number in each sector, based on the 

applicable NAICS codes. A summary of 

the IRFA follows. 

A description of the action (i.e., 

revised proposed designation of critical 

habitat), why it is being considered, and 

its legal basis are included in the 

preamble of this revised proposed rule. 

This proposed action does not impose 

new recordkeeping or reporting 

requirements on small entities. The 

analysis did not reveal any Federal rules 

that duplicate, overlap, or conflict with 

the proposed action. Existing Federal 

laws and regulations overlap with the 

revised proposed rule only to the extent 

that they provide protection to natural 

resources within the area proposed as 

critical habitat generally. However, no 

existing regulations specifically prohibit 

destruction or adverse modification of 

critical habitat for the Arctic ringed seal. 

This revised proposed critical habitat 

rule does not directly apply to any 

particular entity, small or large. The 

regulatory mechanism through which 

critical habitat protections are enforced 

is section 7 of the ESA, which directly 

regulates only those activities carried 

out, funded, or permitted by a Federal 

agency. By definition, Federal agencies 

are not considered small entities, 

although the activities they fund or 

permit may be proposed or carried out 

by small entities. In some cases, small 

entities may participate as third parties 

(e.g., permittees, applicants, grantees) 

during ESA section 7 consultations (the 

primary parties being the Federal action 

agency and NMFS) and thus they may 

be indirectly affected by the critical 

habitat designation. 

Based on the best information 

currently available, the Federal actions 

projected to occur within the time frame 

of the analysis (i.e., the next 10 years) 

that may trigger an ESA section 7 

consultation due to the potential to 

affect one or more of the essential 


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habitat features also have the potential 

to affect Arctic ringed seals. Thus, as 

discussed above, we expect that none of 

the activities we identified would 

trigger a consultation solely on the basis 

of this critical habitat designation; in 

addition, we do not anticipate that 

additional requests for project 

modifications will result specifically 

from this designation of critical habitat. 

As a result, the direct incremental costs 

of this critical habitat designation are 

expected to be limited to the additional 

administrative costs of considering 

Arctic ringed seal critical habitat in 

future section 7 consultations that 

would occur regardless based on the 

listing of Arctic ringed seals. 

As detailed in the Draft Impact 

Analysis Report, the oil and gas 

exploration, development, and 

production industries participate in 

activities that are likely to require 

consideration of critical habitat in ESA 

section 7 consultations. The Small 

Business Administration size standards 

used to define small businesses in these 

cases are: (1) An average of no more 

than 1,250 employees (crude petroleum 

and natural gas extraction industry); or 

(2) average annual receipts of no more 

than $41.5 million (support activities for 

oil and gas operations industry). Only 

two of the parties identified in the oil 

and gas category appear to qualify as 

small businesses based on these criteria. 

Based on past ESA section 7 

consultations, the additional third party 

administrative costs in future 

consultations involving Arctic ringed 

seal critical habitat over the next 10 

years are expected to be borne 

principally by large oil and gas 

operations. The estimated range of 

annual third party costs over this 10 

year period is $32,000 to $59,000 

(discounted at 7 percent), virtually all of 

which is expected to be associated with 

oil and gas activities. It is possible that 

a limited portion of these administrative 

costs may be borne by small entities 

(based on past consultations, an 

estimated maximum of two entities). 

Two government jurisdictions with 

ports appear to qualify as small 

government jurisdictions (serving 

populations of fewer than 50,000). The 

total third party costs that may be borne 

by these small government jurisdictions 

over 10 years are less than $1,000 

(discounted at 7 percent) for the 

additional administrative effort to 

consider Arctic ringed seal critical 

habitat as part of a future ESA section 

7 consultation involving one port. 

As required by the RFA (as amended 

by the SBREFA), we considered 

alternatives to the proposed critical 

habitat designation for the Arctic ringed 

seal. We considered and rejected the 

alternative of not designating critical 

habitat for the Arctic ringed seal, 

because such an alternative does not 

meet our statutory requirements under 

the ESA. We also considered and 

rejected the alternative of designating as 

critical habitat the entire specific area 

that contains at least one identified 

essential feature (i.e., no areas 

excluded), because the alternative does 

not allow the agency to take into 

account circumstances in which the 

benefits of exclusion for national 

security impacts outweigh the benefits 

of critical habitat designation. Finally, 

through the ESA 4(b)(2) exclusion 

analysis process, we identified and 

selected an alternative under which a 

particular area is proposed for exclusion 

based on national security impacts after 

determining that the benefits of 

exclusion outweigh the conservation 

benefits to the species, while the 

remainder of the specific area that 

contains at least one identified essential 

feature would be designated as critical 

habitat. We selected this alternative 

because it would result in a critical 

habitat designation that provides for the 

conservation of the species and is 

consistent with the ESA and joint NMFS 

and U.S. Fish and Wildlife Service 

regulations concerning critical habitat at 

50 CFR part 424 while potentially 

reducing national security impacts. 

Based on the best information currently 

available, we concluded that this 

alternative would result in minimal 

impacts to small entities and the 

economic impacts associated with the 

critical habitat designation would be 

modest. 

Paperwork Reduction Act 

The purpose of the Paperwork 

Reduction Act is to minimize the 

paperwork burden for individuals, small 

businesses, educational and nonprofit 

institutions, and other persons resulting 

from the collection of information by or 

for the Federal government. This revised 

proposed rule does not contain any new 

or revised collection of information. 

This rule, if adopted, would not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, we make the 

following findings: 

(1) This revised proposed rule will 

not produce a Federal mandate. In 

general, a Federal mandate is a 

provision in legislation, statute or 

regulation that would impose an 

enforceable duty upon State, local, tribal 

governments, or the private sector and 

includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ The 

designation of critical habitat does not 

impose an enforceable duty on nonFederal government entities or private 

parties. Under the ESA, the only 

regulatory effect of a critical habitat 

designation is that Federal agencies 

must ensure that their actions are not 

likely to destroy or adversely modify 

critical habitat under section 7. NonFederal entities that receive Federal 

funding, assistance, permits, or 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly affected by 

the designation of critical habitat, but 

the legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly affected because they receive 

Federal assistance or participate in a 

voluntary Federal aid program, the 

Unfunded Mandate Reform Act would 

not apply, nor would critical habitat 

shift to state governments the costs of 

the large entitlement programs listed 

above. 

(2) This revised proposed rule will 

not significantly or uniquely affect small 

governments because it is not likely to 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. In addition, the designation of 

critical habitat imposes no obligations 

on local, state, or tribal governments. 

Therefore, a Small Government Agency 

Plan is not required. 

Information Quality Act and Peer 

Review 

The data and analyses supporting this 

proposed action have undergone a predissemination review and have been 

determined to be in compliance with 

applicable information quality 

guidelines implementing the 

Information Quality Act (Section 515 of 

Pub. L. 106–554). 

On December 16, 2004, the OMB 

issued its Final Information Quality 

Bulletin for Peer Review (Bulletin) 

establishing minimum peer review 

standards, a transparent process for 

public disclosure of peer review 

planning, and opportunities for public 

participation. The Bulletin was 

published in the Federal Register on 

January 14, 2005 (70 FR 2664). The 

primary purpose of the Bulletin, which 

was implemented under the Information 


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Quality Act, is to improve the quality 

and credibility of scientific information 

disseminated by the Federal government 

by requiring peer review of ‘‘influential 

scientific information’’ and ‘‘highly 

influential scientific information’’ prior 

to public dissemination. Influential 

scientific information is defined as 

information the agency reasonably can 

determine will have or does have a clear 

and substantial impact on important 

public policies or private sector 

decisions. The Bulletin provides 

agencies broad discretion in 

determining the appropriate process and 

level of peer review. Stricter standards 

were established for the peer review of 

‘‘highly influential scientific 

assessments,’’ defined as information 

whose dissemination could have a 

potential impact of more than $500 

million in any one year on either the 

public or private sector or that the 

information is novel, controversial, or 

precedent-setting, or has significant 

interagency interest. 

The evaluation of critical habitat 

presented in this revised proposed rule 

and the information presented in the 

supporting Draft Impact Analysis Report 

are considered influential scientific 

information subject to peer review. To 

satisfy our requirements under the OMB 

Bulletin, we obtained independent peer 

review of the critical habitat analysis 

contained in our 2014 proposed rule 

from five reviewers, and of the 

information used to prepare the 

associated impact analysis report from 

three reviewers. We reviewed the 

comments received from these 

reviewers for substantive issues and 

new information regarding critical 

habitat for the Arctic ringed seal, and 

we used this information as applicable 

in the development of this revised 

proposed rule and the associated Draft 

Impact Analysis Report. The peer 

review comments are compiled in two 

reports that are available on the Federal 

eRulemaking Portal or upon request (see 

ADDRESSES). We are obtaining additional 

independent peer review of the 

information used to prepare this revised 

proposed rule, and will address all 

comments received in developing the 

final rule. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, executive orders, 

judicial decisions, and co-management 

agreements, which differentiate tribal 

governments from the other entities that 

deal with, or are affected by, the Federal 

Government. This relationship has 

given rise to a special Federal trust 

responsibility involving the legal 

responsibilities and obligations of the 

United States toward Indian tribes and 

the application of fiduciary standards of 

due care with respect to Indian lands, 

tribal trust resources, and the exercise of 

tribal rights. Executive Order 13175 on 

Consultation and Coordination with 

Indian Tribal Governments outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. Section 161 of Public Law 

108–199 (188 Stat. 452), as amended by 

section 518 of Public Law 108–447 (118 

Stat. 3267), directs all Federal agencies 

to consult with Alaska Native 

corporations on the same basis as Indian 

tribes under E.O. 13175. 

As the entire proposed critical habitat 

area is located seaward of the line of 

MLLW and does not extend into tidallyinfluenced channels of tributary waters, 

no tribal-owned lands overlap with the 

revised proposed designation. However, 

we seek comments and information 

concerning tribal and Alaska Native 

corporation activities that are likely to 

be affected by the proposed designation 

(see Public Comments Solicited 

section). Although this revised proposed 

designation overlaps with areas used by 

Alaska Natives for subsistence, cultural, 

and other purposes, no restrictions on 

subsistence hunting are associated with 

the critical habitat designation. We 

coordinate with Alaska Native hunters 

regarding management issues related to 

Arctic ringed seals through the Ice Seal 

Committee (ISC), a co-management 

organization under section 119 of the 

MMPA. We discussed the designation of 

critical habitat for Arctic ringed seals 

with the ISC and provided updates 

regarding the timeline for publication of 

this revised proposed rule. We will also 

contact potentially affected tribes and 

Alaska Native corporations by mail and 

offer them the opportunity to consult on 

the revised designation of critical 

habitat for the Arctic ringed seal and 

discuss any concerns they may have. If 

we receive any such requests in 

response to this revised proposed rule, 

we will respond to each request before 

issuing a final rule. 

Executive Order 12630, Takings 

Under E.O. 12630, Federal agencies 

must consider the effects of their actions 

on constitutionally protected private 

property rights and avoid unnecessary 

takings of property. A taking of property 

includes actions that result in physical 

invasion or occupancy of private 

property, and regulations imposed on 

private property that substantially affect 

its value or use. In accordance with E.O. 

12630, the revised proposed rule does 

not have significant takings 

implications. The designation of critical 

habitat directly affects only Federal 

agency actions (i.e., those actions 

authorized, funded, or carried out by 

Federal agencies). Further, no areas of 

private property exist within the revised 

proposed critical habitat and hence 

none would be affected by this action. 

Therefore, a takings implication 

assessment is not required. 

Executive Order 12866, Regulatory 

Planning and Review, and Executive 

Order 13771, Reducing Regulation and 

Controlling Regulatory Costs 

OMB has determined that this revised 

proposed rule is significant for purposes 

of E.O. 12866 review. A Draft Impact 

Analysis Report has been prepared that 

considers the economic costs and 

benefits of the revised proposed critical 

habitat designation and alternatives to 

this rulemaking as required under E.O. 

12866. To review this report, see the 

ADDRESSES section above. 

Based on the Draft Impact Analysis 

Report, the total estimated present value 

of the incremental impacts of the 

revised proposed critical habitat 

designation is approximately $786,000 

over the next 10 years (discounted at 7 

percent). Assuming a 7 percent discount 

rate, the range of annual impacts is 

estimated to be $57,000 to $105,000. 

Overall, economic impacts are expected 

to be small and Federal agencies are 

anticipated to bear at least 45 percent of 

these costs. While there are expected 

beneficial economic impacts of 

designating critical habitat for the Arctic 

ringed seal, there are insufficient data 

available to monetize those impacts (see 

Benefits of Designation section). 

This proposed rulemaking is expected 

to be regulatory under E.O. 13771. 

Executive Order 13132, Federalism 

Executive Order 13132 requires 

agencies to take into account any 

federalism impacts of regulations under 

development. It includes specific 

consultation directives for situations in 

which a regulation may preempt state 

law or impose substantial direct 

compliance costs on state and local 

governments (unless required by 

statute). Pursuant to E.O. 13132, we 

determined that this revised proposed 

rule does not have significant federalism 

effects and that a federalism assessment 

is not required. The designation of 

critical habitat directly affects only the 

responsibilities of Federal agencies. As 

a result, the revised proposed rule does 

not have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 


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on the distribution of power and 

responsibilities among the various 

levels of government, as specified in the 

Order. State or local governments may 

be indirectly affected by the revised 

proposed designation if they require 

Federal funds or formal approval or 

authorization from a Federal agency as 

a prerequisite to conducting an action. 

In these cases, the State or local 

government agency may participate in 

the ESA section 7 consultation as a third 

party. However, in keeping with 

Department of Commerce policies and 

consistent with ESA regulations at 50 

CFR 424.16(c)(1)(ii), we will request 

information for this revised proposed 

rule from the appropriate state resource 

agencies in Alaska. 

Executive Order 13211, Energy Supply, 

Distribution, and Use 

Executive Order 13211 requires 

agencies to prepare Statements of 

Energy Effects when undertaking a 

significant energy action. Under E.O. 

13211, a significant energy action means 

any action by an agency that is expected 

to lead to the promulgation of a final 

rule or regulation that is a significant 

regulatory action under E.O. 12866 and 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. We have considered the 

potential impacts of this revised 

proposed critical habitat designation on 

the supply, distribution, or use of 

energy (see Draft Impact Analysis 

Report for this revised proposed rule). 

This proposed critical habitat 

designation overlaps with five BOEM 

planning areas for Outer Continental 

Shelf oil and gas leasing; however, the 

Beaufort and Chukchi Sea planning 

areas are the only areas with existing or 

planned leases. 

Currently, the majority of oil and gas 

production occurs on land adjacent to 

the Beaufort Sea and the proposed 

critical habitat area. Any proposed 

offshore oil and gas projects would 

likely undergo an ESA section 7 

consultation to ensure that the project 

would not likely destroy or adversely 

modify designated critical habitat. 

However, as discussed in the Draft 

Impact Analysis Report for this revised 

proposed rule, such consultations will 

not result in any new and significant 

effects on energy supply, distribution, or 

use. ESA section 7 consultations have 

occurred for numerous oil and gas 

projects within the area of the critical 

habitat designation (e.g., regarding 

possible effects on endangered bowhead 

whales, a species without designated 

critical habitat) without adversely 

affecting energy supply, distribution, or 

use, and we would expect the same 

relative to critical habitat for Arctic 

ringed seals. We have, therefore, 

determined that the energy effects of 

this revised proposed rule are unlikely 

to exceed the impact thresholds 

identified in E.O. 13211, and that this 

rulemaking is not a significant energy 

action. 

List of Subjects 

50 CFR Part 223 

Endangered and threatened species. 

50 CFR Part 226 

Endangered and threatened species. 

Dated: December 28, 2020. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR parts 223 and 226 are 

proposed to be amended as follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

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

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

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

§ 223.206(d)(9). 

■ 2. In § 223.102, amend the table in 

paragraph (e), under Marine Mammals, 

by revising the entry for the ‘‘Seal, 

ringed (Arctic subspecies)’’ to read as 

follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

(e) * * * 

Species 1

Citation(s) for listing determination(s) Critical habitat ESA rules 

Common name Scientific name Description of listed entity 

Marine Mammals 

*******

Seal, ringed (Arctic subspecies).Phoca (=Pusa) hispida 

hispida.

Entire subspecies ............ 77 FR 76706, Dec. 28, 

2012.

226.229 NA 

* * * * * * * 

1Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722; February 7, 

1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612; November 20, 1991). 

* * * * * 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 3. The authority citation for part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 4. Add § 226.229 to read as follows: 

§ 226.229 Critical Habitat for the Arctic 

Subspecies (Pusa hispida hispida) of the 

Ringed Seal. 

Critical habitat is designated for the 

Arctic subspecies of the ringed seal as 

depicted in this section. The map, 

clarified by the textual descriptions in 

this section, is the definitive source for 

determining the critical habitat 

boundaries. 

(a) Critical habitat boundaries. 

Critical habitat for the Arctic subspecies 

of the ringed seal includes marine 

waters within one specific area in the 

Bering, Chukchi, and Beaufort seas, 

extending from the line of mean lower 

low water (MLLW) to an offshore limit 

within the U.S. Exclusive Economic 

Zone (EEZ). Critical habitat does not 

extend into tidally-influenced channels 

of tributary waters of the Bering, 

Chukchi, or Beaufort seas. The 

boundary extends offshore from the 

northern limit of the United StatesCanada border approximately 190 km to 

71°17′29′′ N139°28′8′′ W, and from this 

point runs generally westward along the 

line connecting the following points: 

71°43′32′′ N/141°59′29′′ W, 71°46′18′′ N/ 

144°31′13′′ W, 71°50′25′′ N/145°53′17′′ 

W, 72°10′39′′ N/149°10′58′′ W, 72°20′4′′ 

N/150° W, and 72°20′4′′ N/152° W. From 

this point (72°20′4′′ N/152° W) the 

boundary follows longitude 152° W 

northward to the seaward limit of the 


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U.S. EEZ, and then follows the limit of 

the U.S. EEZ northwestward; then 

southwestward and south to the 

intersection of the southern boundary of 

the critical habitat in the Bering Sea at 

61°18′15′′ N/177°45′56′′ W. The 

southern boundary extends 

southeastward from this intersection 

point to 60°7′ N/172°1′ W, then 

northeastward along a line extending to 

near Cape Romanzof at 61°48′42′′ N/ 

166°6′5′′ W, with the shoreward 

boundary defined by line of MLLW. 

Critical habitat does not include 

permanent manmade structures such as 

boat ramps, docks, and pilings that were 

in existence within the legal boundaries 

on or before the effective date of this 

rule. 

(b) Essential features. The essential 

features for the conservation of the 

Arctic subspecies of the ringed seal are: 

(1) Snow-covered sea ice habitat 

suitable for the formation and 

maintenance of subnivean birth lairs 

used for sheltering pups during 

whelping and nursing, which is defined 

as areas of seasonal landfast (shorefast) 

ice and dense, stable pack ice, excluding 

any bottom-fast ice extending seaward 

from the coastline (typically in waters 

less than 2 m deep), that have 

undergone deformation and contain 

snowdrifts of sufficient depth, typically 

at least 54 cm deep. 

(2) Sea ice habitat suitable as a 

platform for basking and molting, which 

is defined as areas containing sea ice of 

15 percent or more concentration, 

excluding any bottom-fast ice extending 

seaward from the coastline (typically in 

waters less than 2 m deep). 

(3) Primary prey resources to support 

Arctic ringed seals, which are defined to 

be Arctic cod (Boreogadus saida), 

saffron cod (Eleginus gracilis), shrimps, 

and amphipods. 

(c) Map of Arctic ringed seal critical 

habitat. 

BILLING CODE 3510–22–P 

[FR Doc. 2020–29008 Filed 1–7–21; 8:45 am] 

BILLING CODE 3510–22–C 


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