[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Rules and Regulations]
[Pages 19232-19287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06197]



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Vol. 87

Friday,

No. 63

April 1, 2022

Part III





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Parts 223 and 226





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

Federal Register / Vol. 87 , No. 63 / Friday, April 1, 2022 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 220318-0072]
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: Final rule.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue this 
final rule to designate critical habitat for the Arctic subspecies of 
the ringed seal (Pusa hispida hispida) under the Endangered Species Act 
(ESA). The critical habitat designation comprises an area of marine 
habitat in the Bering, Chukchi, and Beaufort seas. Based on 
consideration of national security impacts, we have excluded an area 
north of the Beaufort Sea shelf from the designation.

DATES: This rule is effective May 2, 2022.

ADDRESSES: The final rule, critical habitat map, and associated Final 
Impact Analysis Report (i.e., report titled ``Final RIR/ESA Section 
4(b)(2) Preparatory Assessment/FRFA of Critical Habitat Designation for 
the Arctic Ringed Seal'') can be found on the NMFS website at 
www.fisheries.noaa.gov/species/ringed-seal#conservation-management.

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: 

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 listing 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 impacts of designating critical habitat for this 
species.
    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 comments 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).
    On March 17, 2016, the listing of Arctic ringed seals as a 
threatened species was vacated by the U.S. District Court for the 
District of Alaska (Alaska Oil & Gas Ass'n v. Nat'l Marine Fisheries 
Serv., Case Nos. 4:14-cv-29-RRB, 4:15-cv-2-RRB, 4:15-cv-5-RRB, 2016 WL 
1125744 (D. Alaska Mar. 17, 2016)). This decision was reversed by the 
U.S. Court of Appeals for the Ninth Circuit on February 12, 2018 
(Alaska Oil & Gas Ass'n v. Ross, 722 F. App'x 666 (9th Cir. 2018)), and 
the listing was reinstated on May 15, 2018.
    On June 13, 2019, the Center for Biological Diversity filed a 
complaint in the U.S. District Court for the District of Alaska 
alleging that NMFS had failed to timely designate critical habitat for 
the Arctic ringed seal. Under a court-approved stipulated settlement 
agreement between the parties, NMFS published a revised proposed rule 
to designate critical habitat for the Arctic ringed seal on January 8, 
2021 (86 FR 1452). Our revised proposed designation incorporated 
additional relevant information that became available since publication 
of the 2014 proposed rule, including information received during the 
comment period on that proposal. In the revised proposed rule, we 
discussed the differences from the 2014 proposal and described our 
revised proposed designation of critical habitat for the Arctic ringed 
seal. Specifically, we proposed to designate as critical habitat for 
the Arctic ringed seal an area of marine habitat in the northern 
Bering, Chukchi, and Beaufort seas containing physical and biological 
features essential to the conservation of the species and that may 
require special management considerations or protection. Based on 
consideration of national security impacts under section 4(b)(2) of the 
ESA, we also proposed to exclude an area north of the Beaufort Sea 
shelf from the critical habitat designation.
    We requested public comments on the revised proposed designation 
and associated Draft Impact Analysis Report (NMFS 2020) through March 
9, 2021, and held three public hearings (86 FR 7686, February 1, 2021). 
In response to requests, we extended the public comment period through 
April 8, 2021 (86 FR 13517, March 9, 2021). For a complete description 
of our proposed action, we refer readers to the revised proposed rule 
(86 FR 1452, January 8, 2021).
    This final rule describes the critical habitat designation for the 
Arctic ringed seal and the basis for the designation, including a 
summary of, and responses to, comments received. A detailed discussion 
and analysis of probable economic impacts associated with this critical 
habitat designation is provided in the Final Impact Analysis Report 
(NMFS 2021), which is referenced throughout this final rule. The Arctic 
ringed seal is listed with the scientific name Phoca (=Pusa) hispida 
hispida. In this final rule, we continue to 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).

Critical Habitat Definition and Process

    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)). 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)).
    Conservation is defined in section 3(3) of the ESA as the use of 
all methods

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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)). Therefore, a 
critical habitat designation is not limited to the areas necessary for 
the survival of the species, but rather includes areas necessary for 
supporting the species' recovery. (See Gifford Pinchot Task Force v. 
U.S. Fish and Wildlife Service, 378 F.3d 1059, 1070 (9th Cir. 2004) 
(``Clearly, then, the purpose of establishing `critical habitat' is for 
the government to carve out territory that is not only necessary for 
the species' survival but also essential for the species' recovery.''), 
amended on other grounds, 387 F.3d 968 (9th Cir. 2004); Alaska Oil and 
Gas Ass'n v. Jewell, 815 F.3d 544, 555-56 (9th Cir. 2016).)
    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 or she 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)).
    Critical habitat designations must be based on the best scientific 
data available, rather than the best scientific data possible. Bldg. 
Indus. Ass'n. of Superior Cal. v. Norton, 247 F.3d 1241, 1246-47 (D.C. 
Cir. 2001). See also Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 544, 
555 (9th Cir. 2016) (The ESA ``requires use of the best available 
technology, not perfection.''). Provided that the best available 
information is sufficient to enable us to make a determination as 
required under the ESA, we must rely on it even though there is some 
degree of imperfection or uncertainty. See Alaska v. Lubchenco, 825 F. 
Supp. 2d 209, 223 (D.D.C. 2011) (``[E]ven if plaintiffs can poke some 
holes in the agency's models, that does not necessarily preclude a 
conclusion that these models are the best available science. Some 
degree of predictive error is inherent in the nature of mathematical 
modeling.''); Oceana, Inc. v. Ross, 321 F. Supp. 3d 128, 142 (D.D.C. 
2018) (``[E]ven where data may be inconclusive, an agency must rely on 
the best available scientific information.''). There is no obligation 
to conduct independent studies and tests to acquire the best possible 
data. Ross, 321 F. Supp. 2d at 142 (citations omitted). See also San 
Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 
2014) (holding that the best available science standard ``does not 
require an agency to conduct new tests or make decisions on data that 
does not yet exist.''); Am. Wildlands v. Kempthorne, 530 F.3d 991, 999 
(D.C. Cir. 2008); Southwest Ctr. for Biological Diversity v. Babbitt, 
215 F.3d 58, 60 (D.C. Cir. 2000) (``The `best available data' 
requirement makes it clear that the Secretary has no obligation to 
conduct independent studies.'')
    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 
(sometimes referred to as the ``jeopardy'' standard). 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 (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.

Description and Natural History

    The Arctic ringed seal is the smallest of the northern seals, with 
typical adult body size of 1.5 meters (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 of age (Smith 1987, 
Holst et al. 1999, Quakenbush et al. 2011, Crawford et al. 2015), and 
for males ranges from 5 to 7 years of age (Frost and Lowry 1981), but 
with geographic and temporal variability depending on animal condition 
and population structure (Kelly et al. 2010a). It is well established 
that ringed seals can live to more than 40 years of age (Kelly et al. 
2010a), and that many females surviving into their 30s remain 
reproductive; the average life span is likely to be much lower, due to 
high first-year mortality rates (Kelly 1988a).

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 1988a, 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 breakup to freeze-up in the 
fall, when feeding occurs most intensively.
    Information on movements of individual ringed seals tagged in 
Alaska indicates that the seals can range extensively across the 
Bering, Chukchi, and Beaufort seas annually (Crawford et al. 2012a, Von 
Duyke 2018, Crawford et al. 2019, Quakenbush et al. 2019, Quakenbush 
2020, Von Duyke et al. 2020). Von Duyke et al. (2020) reported that 
during the August to December period, the median cumulative distance 
traveled by 17 ringed seals tagged in Alaska was 4,790 kilometers (km) 
per seal (range 2,719 to 5,988 km).
    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 season (Kelly et al. 2010b). For example, 
Kelly et al. (2010b) reported that the home ranges of 55 adult ringed 
seals inhabiting landfast (shorefast) ice in the Chukchi and Beaufort 
seas ranged from less than 1 to 27.9 square kilometers in April to 
June. However, some adult males have been found to make long-distance 
movements in the Chukchi and

[[Page 19234]]

Bering seas during January to March (Quakenbush et al. 2019). In 
contrast, subadult Arctic ringed seals have been observed to travel 
relatively long distances to remain near the ice edge in the Bering Sea 
in winter (Crawford et al. 2012a, 2019). Crawford et al. (2012a) 
suggested that this habitat may be important for overwintering subadult 
ringed seals; almost all of the subadults monitored by Crawford et al. 
(2019) showed this winter habitat use pattern along with dive behavior 
indicative of foraging.
    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 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 (i.e., rafting, ridging, or hummocking due to wind and 
ocean currents) 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).
    Once mature, females give birth annually 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 breakup of spring ice (McLaren 1958, Smith 
1973, Kelly 1988a, Smith et al. 1991).
    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 pups because they 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 
centimeters (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. Similarly, Alaska Native hunters from Kotzebue, 
Alaska, reported that when the snow melts early, there is no protection 
for ringed seal pups from predators such as jaegers, ravens, and foxes 
(Huntington et al. 2017a); and hunters in the Bering Strait region 
suggested that other land predators (grizzly bear (Ursus arctos), 
wolverine (Gulo gulo)) may also prey on ringed seal pups not protected 
in lairs (Gadamus et al. 2015).
    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 1988a). 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 (n=65; Lindsay et al. 2021), 
perhaps reflecting, at least in part, that pups were sheltered in 
subnivean lairs and thus would not have been detected during the 
surveys. Although highest pup densities were located in Norton Sound, 
pups were also documented in offshore habitat farther south (Lindsay et 
al. 2021). Satellite tracking data for ringed seals tagged in Kotzebue 
Sound, Alaska, showed that adults remained, for the most part, in the 
Chukchi Sea and Bering Sea north of St. Lawrence Island during winter 
and spring (Crawford et al. 2012a). However, movement data for ringed 
seals tagged near Utqia[gdot]vik, Alaska, in 2011 indicated that some 
adults overwintered toward the shelf break in the Bering Sea (North 
Slope Borough, 2012, unpublished data). Ringed seals tagged more 
recently in the Chukchi and Beaufort seas (primarily adults) used areas 
as far south as Nunivak Island during December to May, but the core-use 
area was located in southern Kotzebue Sound (Quakenbush et al. 2019, 
Quakenbush 2020). Finally, the subsistence harvest of ringed seal pups 
by hunters in Quinhagak, Alaska (Coffing et al. 1998), suggests that 
some ringed seals may whelp south of Nunivak Island.
    Basking Period: Numbers of ringed seals hauled out on the surface 
of the ice typically begin to increase during spring as the 
temperatures warm and the snow covering the seals' lairs melts. 
Although the snow cover can melt rapidly, the ice remains largely 
intact and serves as a substrate for annual molting, during which time 
seals spend many hours basking in the sun (Smith 1973, Finley 1979, 
Smith and Hammill 1981, Kelly and Quakenbush 1990, Kelly et al. 2010b). 
Adults generally molt from mid-May to mid-July (McLaren 1958), although 
there is regional variation (Ryg and [Oslash]ritsland 1991), and pups 
molt at or shortly after weaning (Kelly 1988a, Lydersen and Hammill 
1993). Subadult harbor seals (Phoca vitulina) and spotted seals (Phoca 
largha) tend to molt earlier than adults (Ashwell-Erickson et al. 1986, 
Burns 2002, Daniel et al. 2003), and this may also be the case for 
subadult ringed seals (Kelly and Quakenbush 1990). Usually, the largest 
numbers of basking seals are observed in June (Smith 1973, Finley 1979, 
Smith

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et al. 1979, Smith and Hammill 1981, Moulton et al. 2002a). Thometz et 
al. (2021) reported that metabolism in ringed seals increased markedly 
in association with the molt; and discussed that, although a study on 
the molt in harbor and spotted seals by Ashwell-Erickson et al. (1986) 
has often been cited as evidence of declines in metabolism, that study 
actually documented increasing metabolic rates during the regenerative 
phase of molt. Feeding is reduced during the molt, and 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).
    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 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, 1984, Ljungblad et al. 1985, Ljungblad et 
al. 1986, Alaska Fisheries Science Center 2020). Incidental sightings 
of ringed seals were recorded throughout the survey area, including in 
the limited areas surveyed north of the shelf.
    Open-Water Period: 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 period 
in the pack ice of the northern Chukchi and Beaufort seas (Frost 1985). 
Arctic ringed seals are also dispersed in ice-free areas of the Bering, 
Chukchi, and Beaufort seas during this period. Tracking data indicate 
that tagged ringed seals made extensive use of the continental shelf 
waters of the U.S. Chukchi and Beaufort seas during the open-water 
period (Crawford et al. 2012a, Quakenbush et al. 2019, Quakenbush 2020, 
Von Duyke et al. 2020). Kelly et al. (2010b) found that ringed seals 
tagged during their study ranged during the open-water period up to 
1,800 km from their small winter/spring home ranges. In addition, 
Harwood et al. (2012) documented long-distance westward movements of 
mostly subadult seals tagged in the Canadian Beaufort Sea through the 
Beaufort Sea offshore of the Alaska North Slope and continuing into the 
Chukchi Sea (range: 706-6,140 km).
    Quakenbush et al. (2019) identified a high-use area for tagged 
ringed seals during the open-water period that included Barrow Canyon 
and the western Beaufort Sea over the continental shelf similar to 
where Citta et al. (2018) mapped a relatively high density of locations 
of tagged ringed seals during summer. Although tagged ringed seals 
tracked in U.S. waters tended to remain over the continental shelf, 
several individuals also made trips into the deep waters north of the 
shelf (Crawford et al. 2019, Quakenbush et al. 2019, Quakenbush 2020, 
Von Duyke et al. 2020; Alaska Department of Fish and Game (ADF&G) and 
North Slope Borough, 2020, unpublished data). Von Duyke et al. (2020) 
reported that most of the forays by tagged ringed seals north of the 
shelf involved movements to retreating pack ice and included days when 
the seals hauled out on the ice. Dive recorders indicated that 
foraging-type movements occurred over both the continental shelf and 
north of the shelf, suggesting that both areas may be important during 
the open-water period. Similarly, during the open-water period, some, 
primarily subadult, ringed seals satellite-tagged in Svalbard, Norway, 
made forays into the Arctic Ocean Basin, and that time spent there 
increased after a major collapse of sea ice in this region, when the 
seals traveled farther to find sea ice (Hamilton et al. 2015, Hamilton 
et al. 2017). Observations of ringed seals near and beyond the outer 
boundary 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).
    Arctic ringed seals typically lose a significant proportion of 
their blubber mass in late winter to early summer and then replenish 
their blubber reserves during late summer or fall and into winter 
(Lowry et al. 1980b, Ryg et al. 1990, Ryg and [Oslash]ritsland 1991, 
Belikov and Boltunov 1998, Goodyear 1999, Quakenbush et al. 2011, Young 
and Ferguson 2013, Quakenbush et al. 2020).

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 final 
critical habitat designation. In accordance with section 4(b)(2) of the 
ESA, this critical habitat designation is based on the best scientific 
data available. Our primary sources of information include the status 
review report for the ringed seal (Kelly et al. 2010a), our proposed 
and final rules to list four subspecies of ringed seals, including the 
Arctic ringed seal, under the ESA (75 FR 77476, December 10, 2010; 77 
FR 76706, December 28, 2012), articles in peer-reviewed journals, other 
scientific reports, peer reviewer and public comments on the revised 
proposed rule, 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. We also rely upon Indigenous Knowledge (IK) of Alaska Native 
subsistence users.
    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 and 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 by the 
species at the time of listing would be inadequate to ensure the 
conservation of the species. Our evaluation and conclusions are 
described in detail in the following sections, and incorporate changes 
in response to peer reviewer and public comments (see Summary of 
Comments and Responses and Summary of Changes From the Revised Proposed 
Designation sections).

Geographical Area Occupied by the Species

    The phrase ``geographical area occupied by the species at the time 
it is listed,'' which appears in the statutory

[[Page 19236]]

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.).
    Based on existing literature, including available information on 
Arctic ringed seal sightings and movements, we identified the range of 
the Arctic ringed seal in the final ESA listing rule (77 FR 76706; 
December 28, 2012) as the Arctic Ocean and adjacent seas, except west 
of 157[deg]00' E longitude (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 U.S. jurisdiction 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 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 define such 
features as those that occur in specific areas and that are essential 
to support the life-history needs of the species. The regulations 
provide additional details and examples of such features.
    As described below in the section, Summary of Changes From the 
Revised Proposed Designation, peer reviewer and public comments led us 
to re-evaluate and revise the descriptions of the essential features 
identified in the revised proposed rule. Based on the best scientific 
information available regarding the natural history of the Arctic 
ringed seal and the habitat features that are essential to support the 
species' life-history needs, we have identified the following physical 
and 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 waters 3 m or more in depth 
(relative to MLLW) containing areas of seasonal landfast (shorefast) 
ice or dense, stable pack ice, that have undergone deformation and 
contain snowdrifts of sufficient depth to form and maintain birth lairs 
(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 on deformed ice where drifting has taken 
place along pressure ridges or ice hummocks (Smith and Stirling 1975, 
Lydersen and Gjertz 1986, Smith 1987, Kelly 1988a, 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, p. 109) 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 1988b, 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 available estimate of the typical minimum snowdrift depth that 
is sufficient for birth lairs.
    Arctic ringed seals have been reported to 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), such as in lagoons, near river 
deltas, and close to shore, 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). Where sea 
ice in very shallow waters is bottom-fast, there would presumably be 
little to no ice-free water present that would allow the seals to swim 
under and gain access to the ice surface for the construction and 
maintenance of birth lairs, except perhaps where cracks form in the 
ice, or where the ice is not uniformly frozen to or resting on the 
seafloor. Thus, we expect use of bottom-fast ice by Arctic ringed seals 
to be low relative to use of ice in deeper waters. Although we are 
aware of few scientific reports or publications that provide specific 
information on Arctic ringed seal use of sea ice in very shallow areas 
during the period of whelping and nursing, Lukin et al. (2006) reported 
that in the White Sea, Arctic ringed seal breathing holes and lairs 
were present in water less than 3 m deep; however, no birth lairs were 
recorded there. In addition, a study to investigate the effects of 
offshore oil development on ringed seals (Williams et al. 2002, 
Williams et al. 2006) documented several lairs, including two birth 
lairs, as well as breathing holes, seaward of the barrier islands west 
of Prudhoe Bay which, based on their locations relative to depths shown 
on the survey maps and navigation charts, appear to have been located 
in water that was about 3 m or less in depth, although water depth is 
approximate and it is possible that sea ice conditions may differ there 
from those along the mainland coast. There is also some evidence that 
observed ringed seal densities are lower in very shallow ice-covered 
waters, at least in the Alaskan

[[Page 19237]]

Beaufort Sea during late May to early June (during the molting period) 
in waters less than 3 m deep (Moulton et al. 2001, Moulton et al. 
2002b, Moulton et al. 2002a, Moulton et al. 2003), and in waters 
estimated to be between 3 and 5 m deep (Frost et al. 2004).
    The extent of landfast ice that becomes bottom-fast over winter 
varies along the coast (e.g., Dammann et al. 2018), and a portion of 
the landfast ice in very shallow waters becomes bottom-fast over 
winter. Use of such ice by Arctic ringed seals is expected to be low 
relative to use of ice in waters greater than 2 to 3 m depth, and there 
is some evidence that Arctic ringed seal densities are lower in waters 
less than 3 to 5 m deep, at least in the Beaufort Sea during late May 
to early June. We therefore concluded that sea ice habitat essential 
for birth lairs is best described in reference to a minimum water 
depth, rather than with a specific focus on bottom-fast ice in itself. 
Specifically, for the purpose of describing sea ice habitat that is 
essential for the formation and maintenance of birth lairs, we selected 
3 m as the minimum water depth for this essential feature.
    Arctic ringed seal whelping has also been observed on both 
nearshore and offshore drifting pack ice. As Reeves (1998) noted, 
nearly all research on Arctic ringed seal reproduction has been 
conducted in landfast ice, and the potential importance of stable but 
drifting pack ice has not been adequately investigated. Studies in the 
Barents Sea (Wiig et al. 1999), Baffin Bay (Finley et al. 1983) and the 
Canadian Beaufort Sea (Pilfold et al. 2014) have documented pup 
production in pack ice, and Smith and Stirling (1975), citing 
unpublished data from the ``Western Arctic'' (presumably the Canadian 
Beaufort Sea), also indicated that ``the offshore areas of shifting but 
relatively stable ice are an important part of the breeding habitat.'' 
Lentfer (1972) reported ``a significant amount of ringed seal denning 
and pupping on moving heavy pack ice north of Barrow [i.e., 
Utqia[gdot]vik].'' Moreover, surveys conducted in the Bering and 
Chukchi seas during spring have documented ringed seals, including 
observations of pups, in offshore areas (NMFS Marine Mammal Laboratory, 
2012-2013 and 2016, unpublished data). Ringed seal vocalizations 
detected throughout the winter and spring in multi-year acoustic 
recordings collected along the shelf break north-northwest of 
Utqia[gdot]vik, along with a seasonal change in the repertoire during 
the breeding season, also suggest that some Arctic ringed seals 
overwinter and breed in offshore pack ice (Jones et al. 2014). We 
therefore conclude that the best scientific information available 
indicates that snow-covered sea ice habitat essential for the formation 
and maintenance of birth lairs (in waters 3 m or more in depth relative 
to MLLW) includes areas of both landfast ice and dense, stable pack ice 
that have undergone deformation and contain snowdrifts of sufficient 
depth to form and maintain birth lairs, 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 in waters 3 m or more in depth (relative to MLLW).
    Sea ice habitat suitable as a platform for basking and molting is 
essential to conservation of the Arctic ringed seal because molting is 
a biologically-important, energy-intensive process that could incur 
increased energetic costs if it were to occur in water, or increased 
risk of predation if it were to occur on land due to the absence of 
readily accessible escape routes to avoid predators (i.e., breathing 
holes or natural openings in sea ice). Moreover, we are unaware of any 
studies establishing whether Arctic ringed seals can molt successfully 
in water, or reports of healthy Arctic ringed seals hauled out on land 
during the molt (they are known to come ashore during this period when 
sick). IK indicates that ringed seals, mostly young individuals, have 
been occasionally seen hauled out on land in spring near Elim, as well 
as south of Utqia[gdot]vik, Alaska, although molt status was not 
addressed (Huntington et al. 2015c, 2015d). If Arctic ringed seals' 
molt becomes more frequently interrupted by being forced to spend 
inordinate time in water while completing their annual molt, they could 
incur increased energetic costs and risk microbial infections of the 
skin (Fay et al. 1978).
    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) used 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, Lunn et al. 1997, Chambellant et al. 2012). 
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). Crawford et al. (2012a) reported 
that the average ice concentrations (and standard error (SE), a measure 
of variability in the data) used by several 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. For a normal distribution of ice concentrations used by the 
seals (i.e., is a bell-shaped curve), selecting the mean value for ice 
concentration as a lower threshold for the essential feature would 
exclude about half of the range of ice concentrations used by the 
seals. Therefore, to select a lower threshold that encompasses a 
majority of the ice concentrations used by the seals during molting, we 
subtracted one SE from each mean. The average of these adjusted values 
for subadults and adults (12.2 percent and 16.6 percent, respectively) 
is 14.4 percent. This is nearly identical to the value of 15 percent 
ice concentration that is commonly used to define the ice edge 
(National Snow and Ice Data Center (NSIDC) 2021) and for which there 
are spatial data layers readily available. For the purpose of 
describing the essential feature of sea ice habitat that is suitable as 
a platform for basking and molting, we selected 15 percent as the 
minimum ice concentration.
    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. 
Although some Arctic ringed seals may use very shallow ice covered 
waters, where ice is bottom-fast, there would presumably be little to 
no ice-free water present that would allow the seals to swim under and 
gain access to the ice

[[Page 19238]]

surface for basking and molting, except perhaps where cracks form in 
the ice, or where the ice is not uniformly frozen to or resting on the 
seafloor. Thus, we expect use of bottom-fast ice by Arctic ringed seals 
to be low relative to use of ice in deeper waters. Also, as indicated 
above, there is some evidence that observed ringed seal densities are 
lower in very shallow ice-covered waters, at least in the Alaskan 
Beaufort Sea during late May to early June in waters less than 3 to 5 m 
deep. 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 in waters 3 m or more in depth 
(relative to MLLW).
    (3) Primary prey resources to support Arctic ringed seals, which 
are defined to be small, often schooling, fishes, in particular Arctic 
cod, saffron cod, and rainbow smelt; and small crustaceans, in 
particular, 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. Arctic ringed seals rarely 
prey upon more than 10 to 15 species in any specific geographic 
location, and typically not more than 2 to 4 species are considered to 
be key prey (W[eogon]s[lstrok]awski et al. 1994). Most prey are small, 
and preferred fishes tend to be schooling species that form dense 
aggregations (Kovacs 2007). 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, and invertebrates can also be important in some regions, at 
least seasonally (as reviewed by Kelly et al. 2010a). 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 
commonly consumed by ringed seals (considered for the studies discussed 
here to be prey items identified in at least 25 percent of ringed seal 
stomachs with contents) 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). The authors found that diet 
composition shifted between the two periods toward an increased 
proportion and diversity of fish within the recent period, when other 
commonly consumed prey items included walleye pollock (Theragra 
chalcogramma) in the Bering Sea and rainbow smelt (Osmerus dentex; 
previously called O. mordax or O. mordax dentex, also Arctic smelt and 
boreal smelt in some references by authors cited herein) in the Chukchi 
Sea. An earlier study by Lowry et al. (1980b; Table 2) also indicated 
that ringed seals sampled in the Bering Strait region (at Nome) and in 
the Chukchi Sea (at Shishmaref) commonly consumed (considered here to 
be at least 25 percent of the total food volume in ringed seal stomachs 
with contents in any of the five seasonal samples) Arctic cod, saffron 
cod, shrimps, and amphipods (Shishmaref, specifically).
    Crawford et al. (2015; Tables 1 and 2) indicated that prey items 
commonly 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 non-pup seals [>=1 year of age]); 
and in the Chukchi Sea near Shishmaref included saffron cod and shrimps 
(for both pup and non-pup seals). This study similarly found that diet 
composition shifted between the two periods toward an increased 
proportion of fish within the recent period for non-pup seals from 
Diomode and pups from Shishmaref. Other prey items commonly consumed 
within the recent period near Diomede included walleye pollock and 
sculpins (family Cottidae) (for non-pup seals); and near Shishmaref 
included rainbow smelt (for both pup and non-pup seals) and Pacific 
herring (Clupea pallasi) (24.5 percent of non-pup seals).
    In addition, Quakenbush et al. (2020; Table 1) compared ringed seal 
diet in the Bering and Chukchi seas (not reported separately for each 
sea) by season and age class (pup and non-pup, i.e., >=1 year of age) 
between the recent 2016 to 2020 and earlier 2000 to 2015 periods. 
Within both periods, during the ice-covered (November to May) and/or 
open-water (June to October) season, ringed seals (both pup and non-
pup) commonly consumed Arctic cod, saffron cod, shrimps, and amphipods 
(primarily gammarids); and non-pup seals commonly consumed rainbow 
smelt. In addition, another prey species--capelin (Mallotus villosus)--
was commonly consumed within the 2016 to 2020 period by pups during 
both seasons, and mysids (family Mysidae, Neomysis sp.) were commonly 
consumed by pups within this period during the ice-covered season.
    Two studies provide limited information on the diet of ringed seals 
near Utqia[gdot]vik and in the central Beaufort Sea. Dehn et al. (2007; 
Table 2) indicated that in the Utqia[gdot]vik vicinity, prey items 
commonly 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. In addition, Frost and Lowry (1984; Table III) 
found that prey items commonly consumed by ringed seals (considered 
here to be at least 25 percent of the mean total food volume in ringed 
seal stomachs with contents in any of the three seasonal samples) 
collected near Utqia[gdot]vik and in the central Beaufort Sea 
(approximately 80 km northwest of Prudhoe Bay and near Pingok Island 
and Beaufort Lagoon), primarily between 1977 and 1980, included Arctic 
cod, as well as gammarid and hyperiid amphipods.
    IK about ringed seals documented for coastal communities located in 
western and northern Alaska aligns in general with the ringed seal diet 
information from the studies reviewed above. Alaska Native hunters 
interviewed in several communities in the Bering Strait region, as well 
as in two communities in the northern Bering Sea region, reported that 
ringed seals feed on Pacific herring, in particular during spawning 
(e.g., Oceana and Kawerak 2014, Gadamus et al. 2015, Huntington et al. 
2016, 2017c, 2017b). Other prey species reported for ringed seals in 
these regions included fishes such as capelin, saffron cod, Arctic cod, 
sculpins, salmon, and whitefish species, as well as invertebrates such 
as shrimps and crabs (Nelson 1981, Huntington 2000, Oceana and Kawerak 
2014, Gadamus et al. 2015, Huntington et al. 2015c, 2015a, 2016, 
2017b), and near Wainwright in the Chukchi Sea included smelt, saffron 
cod, and invertebrates such as shrimps (Nelson 1981).
    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 near 
Utqia[gdot]vik and in the central Beaufort Sea. Rainbow smelt was also 
a prominent prey species since about 2000 in the Bering and/or Chukchi 
seas. Several other prey species were reported as commonly consumed by 
ringed seals, but these reports were more spatially and temporally 
limited. Still, diet composition and the relative prominence of certain 
prey species varied both geographically and seasonally, and differences 
in diet between age classes (pups and non-pup

[[Page 19239]]

seals), as well as a temporal shift in diet in the Bering and Chukchi 
seas, have been reported. In addition, ringed seal diet information for 
the Beaufort Sea is relatively limited. Therefore, based on the best 
scientific data available, we conclude that small, often schooling, 
fishes, in particular, Arctic cod, saffron cod, and rainbow smelt; and 
small crustaceans, in particular, shrimps and amphipods, are the 
primary prey resources of Arctic ringed seals in U.S. waters. We find 
that this level of specificity, naming species known to be prominent in 
Arctic ringed seals' diet but not limiting the definition to only those 
species, is most appropriate for defining this essential feature based 
on the best scientific data available. Because Arctic ringed seals feed 
on a variety of prey items and regional and temporal 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 determine whether 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 described below in the section Summary of Changes From the 
Revised Proposed Designation, after revising the proposed definitions 
of the essential features, and in response to public comments that 
expressed concerns regarding our proposed delineation of the boundaries 
of critical habitat with respect to the primary prey resources 
essential feature, we re-evaluated the best scientific data available 
to ensure that those boundaries were drawn appropriately. As a result, 
we now identify one specific area that contains the primary prey 
resources essential feature in addition to the sea ice essential 
features as described in this section.
    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. 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. Based 
on the best scientific data available, we have therefore identified one 
specific area that comprises parts of the Bering, Chukchi, and Beaufort 
seas, within which all of the identified essential features can be 
found in any given year.
    We first focused on identifying where sea ice essential features 
occur that support the species' life history functions of whelping and 
nursing (when birth lairs are constructed and maintained) and molting. 
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 precisely the specific geographic locations where the 
sea ice essential features 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 of essential sea ice habitat used by Arctic ringed seals vary 
from year to year, or even day to day, depending on many factors, 
including time of year, local weather, and oceanographic conditions 
(e.g., 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 occurs. 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. We 
relied on the birth lair essential feature to determine the southern 
boundary of critical habitat 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 are especially variable 
in the southern periphery of the Arctic ringed seal's habitat in the 
Bering Sea (Boveng et al. 2009, Stabeno et al. 2012, Frey et al. 2015). 
Consequently, we concluded that the southern extent of sea ice suitable 
for birth lairs also

[[Page 19240]]

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 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 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. Although April is the peak month for ringed seal 
whelping, snow-covered sea ice would need to persist for several weeks 
for pups to be sheltered and nursed in birth lairs. We therefore 
considered information on the position of the ice edge in the Bering 
Sea during May to assess whether basing the southern boundary on this 
ice edge (rather than the April ice edge) would most accurately 
represent the southern extent of where the birth lair essential feature 
occurs on a consistent basis. 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, 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 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.
    To inform our evaluation of the above information relative to 
determining the southern boundary, we considered data available on the 
spring distribution of ringed seals in the Bering Sea from aerial 
surveys conducted in in 2012 and 2013 (NMFS Marine Mammal Laboratory, 
2012-2013, unpublished data). Briefly, these surveys collected paired 
thermal and high-resolution digital imagery. Semi-automated techniques 
were used to detect seals from the thermal imagery, and expert 
observers then assigned species and age class to the detections from 
the associated photographs (Moreland et al. 2013). For the revised 
proposed designation, we considered information on the spatial 
distribution of ringed seal detections (with species identification 
confidence classified as ``positive'' or ``likely''). After the revised 
proposed designation was published, a scientific publication by Lindsay 
et al. (2021) became available that produced maps of ringed seal 
densities from the aerial survey dataset (based on ringed seal 
detections for all values of species identification confidence). We 
therefore considered this information in developing the final 
designation. Overall, ringed seal densities in the Bering Sea appeared 
to be higher in areas proximate to and north of St. Matthew and Nunivak 
Islands (as compared to areas surveyed farther south toward the shelf 
break), with highest densities in Norton Sound, although ringed seals 
were documented as far south as Bristol Bay. Relatively few ringed seal 
pups were documented during these surveys (perhaps reflecting, at least 
in part, that pups were sheltered in subnivean lairs and thus would not 
have been detected during the surveys). Although pup densities were 
highest in Norton Sound, pups were also documented in offshore habitat, 
primarily proximate to and north of St. Matthew and Nunivak Island, and 
several pups were detected in offshore areas farther south.
    Taken as a whole, we concluded that the best scientific data 
available on the spring distribution of ringed seals in the Bering Sea 
suggests that the median position of the ice edge for May provides the 
best estimate of the southern extent of where the birth lair essential 
feature occurs on a consistent basis. In drawing this conclusion, we 
took into consideration that the 2012 and 2013 surveys were conducted 
in years with above-average ice extent and that our focus in 
delineating the southern boundary is on identifying the best estimate 
of the southern extent of where the birth lair essential feature (and 
potentially sea ice essential for molting) occurs on a consistent basis 
in more than limited areas. 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 base 
the southern boundary on the estimated position of the May median ice 
edge for the more recent 1990 to 2019 period. 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. 2012, Frey et al. 2015) renders these waters unlikely to 
contain the sea ice essential features on a consistent basis in more 
than limited areas.
    To simplify the southern boundary for purposes of delineation on 
maps, we modified the line representing the May median ice edge for the 
1990 to 2019 period as follows: (1) Intermediate points along this line 
between its intersection point with the seaward limit of the U.S. EEZ 
(61[deg]18'15'' N/177[deg]45'56'' W) and the point southwest of St. 
Matthew Island where it turns northeastward (60[deg]7' N/172[deg]1' W) 
were removed to form the segment of the southern boundary that extends 
from the seaward limit of the U.S. EEZ southeastward approximately 340 
km; and (2) intermediate points along this line between the point 
southwest of St. Matthew Island and the point where it reaches the 
coast near Cape Romanzof were removed and connected to the coast to 
form the second segment of the southern boundary that extends 
northeastward approximately 370 km (at 61[deg]48'42'' N/166[deg]6'5'' 
W). This editing produced a simplified southern boundary that retains 
the general shape of the original line representing the May median ice 
edge.
    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. In addition, sea ice and on-ice snow depths are 
dynamic and variable on both spatial and temporal scales, and sea ice 
suitable

[[Page 19241]]

for basking and molting, and potentially for birth lairs, occurs over 
waters extending up to and beyond the seaward limit of the U.S. EEZ 
(see, e.g., Fetterer et al. 2017, Sea Ice Index Version 3.0, accessed 
November 2019, Blanchard-Wrigglesworth et al. 2018). We therefore 
concluded that the outer limit of the U.S. EEZ to the north, west, and 
east best defines the remaining seaward 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. Finally, we defined the shoreward boundary of 
the specific area delineated for the sea ice essential features as the 
3-m isobath (relative to MLLW), consistent with the 3-m minimum water 
depth identified for both features.
    The primary prey species essential to support Arctic ringed seals 
are found in a range of habitats in U.S. waters occupied by these 
seals. For example, 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, Chukchi, 
and northern Bering seas (e.g., Bluhm et al. 2009, Goddard et al. 2014, 
Ravelo et al. 2014, 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 
widely distributed, and are regularly observed in association with sea 
ice, but they are also found in seasonally ice-free waters (Bluhm and 
Gradinger 2008, Love et al. 2016, Mecklenburg et al. 2016). Arctic cod 
have been documented in surveys of the Beaufort Sea and Chukchi Sea 
shelf and slope (e.g., Frost and Lowry 1983, Parker-Stetter et al. 
2011, Crawford et al. 2012b, Logerwell et al. 2015, Norcross et al. 
2017a, Norcross et al. 2017b, Forster et al. 2020), and their general 
distribution extends northward into deeper waters off the shelf (Cohen 
et al. 1990, Love et al. 2016, Mecklenburg et al. 2016), where Arctic 
cod were observed in water wedges along the edges of summer pack ice 
floes, along with amphipods under the ice, and diving ringed seals were 
observed at numerous locations (Gradinger and Bluhm 2004). 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). Similarly, rainbow smelt are found 
primarily in shallow coastal waters of the Bering, Chukchi, and 
Beaufort seas (Haldorson and Craig 1984, Burns 1990, Logerwell et al. 
2015, Love et al. 2016, Ormseth 2019).
    In summary, the available data on the distributions of Arctic 
ringed seal primary prey species indicate that they occur throughout 
the geographical area occupied by the species. However, except in 
limited circumstances that do not apply here, the Secretary cannot 
designate as critical habitat the entire geographical area occupied by 
a species. We have no information that suggests any portions of the 
species' occupied habitat contain prey species that are of greater 
importance or otherwise differ from those found within the specific 
area defined by the sea ice essential features. Although 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. Most importantly, the movements and habitat use of Arctic ringed 
seals are strongly influenced by the seasonality of sea ice and they 
forage throughout the year (albeit with reduced feeding during 
molting). Given this and our consideration of the best scientific data 
available, we concluded that the best approach to determine the 
appropriate boundaries for critical habitat is to base the delineation 
on the boundaries identified above for the sea ice essential features. 
We conclude this specific area contains sufficient primary prey 
resources to support the conservation of Arctic ringed seals. Thus, we 
are designating as critical habitat a single specific area that 
contains all three of the identified essential features.

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)(i); 50 
CFR 424.12(b)(1)(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). In determining whether the essential 
physical or biological features ``may require'' special management 
considerations or protection, it is necessary to find only that there 
is a possibility that the features may require special management 
considerations or protection in the future; it is not necessary to find 
that such management is presently or immediately required. Home 
Builders Ass'n of N. California v. U.S. Fish and Wildlife Serv., 268 F. 
Supp. 2d 1197, 1218 (E.D. Cal. 2003). The relevant management need may 
be ``in the future based on possibility.'' 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 Cape Hatteras Access Pres. Alliance v. U.S. 
Dept. of Interior, 731 F. Supp. 2d 15, 24 (D.D.C. 2010) (``The Court 
explained in CHAPA I that `the word ``may'' indicates that the 
requirement for special considerations or protections need not be 
immediate' but must require special consideration or protection `in the 
future.' '') (citing Cape Hatteras Access Pres. Alliance v. U.S. Dept. 
of Interior, 344 F. Supp. 2d 108, 123-24 (D.D.C. 2004)).
    We have identified four primary sources of potential threats to one 
or more of the habitat features identified above as essential to the 
conservation of Arctic ringed seals: Climate change; oil and gas 
exploration, development, and production; marine shipping and 
transportation; and commercial fisheries. As further detailed below, 
both sea ice essential features 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. 
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

[[Page 19242]]

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). Along with reductions in the extent and timing of sea ice 
cover, observations indicate a decline in spring snow depth on Arctic 
ice attributed to later sea ice formation in autumn (Webster et al. 
2014, Webster et al. 2018), and a trend toward earlier spring rain-on-
snow events throughout much of the Arctic Ocean in recent decades (Dou 
et al. 2021). Based on climate models, a study by Hezel et al. (2012) 
projected a substantial decline over this century in average snow depth 
on Arctic sea ice.
    Activities that release carbon dioxide and other heat-trapping 
greenhouse gases (GHGs) into the atmosphere, most notably those that 
involve fossil fuel combustion, are the major contributing factor to 
climate change and loss of sea ice (Intergovernmental Panel on Climate 
Change (IPCC) 2013, U.S Global Climate Change Research Program 2017, 
Stroeve and Notz 2018, IPCC 2021). 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) in association with changes 
in ocean conditions, such as warming and acidification (caused 
primarily by uptake of atmospheric CO<INF>2</INF>) (as reviewed by 
Kelly et al. 2010a, also, e.g., Kortsch et al. 2015, Alabia et al. 
2018, Arctic Monitoring and Assessment Programme (AMAP) 2018, Holsman 
et al. 2018, Thorson et al. 2019, Baker et al. 2020, 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). 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.

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 (AMAP 2007). 
Experiences with spills in subarctic regions, such as in Prince William 
Sound, Alaska, have shown that large oil spills can have lasting 
ecological effects (AMAP 2007, Barron et al. 2020). 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 (Wilkinson et al. 2017). The extreme depth and the 
pressure that oil was under during the 2010 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) (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 (see 
also Marine Shipping and Transportation section). Other examples of 
activities associated with oil and gas exploration and development 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 al. 2015, Hawkins and Popper 2017), and the 
nature of potential effects specifically

[[Page 19243]]

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 essential for whelping, 
nursing, and/or for basking and molting could be oiled. Arctic ringed 
seal primary prey resources could also become contaminated, experience 
mortality, or be otherwise adversely affected by spilled oil. In 
addition, disturbance effects (both physical alteration of habitat and 
acoustic effects) could alter the quality of the essential features of 
Arctic ringed seal critical habitat, or render habitat unsuitable. We 
conclude that the essential features of the habitat of the Arctic 
ringed seal may require special management considerations or protection 
in the future to minimize the risks posed to these features by oil and 
gas exploration, development, and production.

Marine Shipping and Transportation

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

Commercial Fisheries

    The specific area identified in this final 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 Management Area in the 
future (North Pacific Fishery Management Council 2009).

[[Page 19244]]

    In the northern portion of the Bering Sea and Aleutian Islands 
Management Area, commercial fisheries overlap with the southernmost 
portion of the critical habitat. Portions of the critical habitat also 
overlap with certain state commercial fisheries management areas. 
Commercial catches from waters in the critical habitat area primarily 
include: Pacific halibut (Hippoglossus stenolepis), several other 
flatfish species, Pacific cod (Gadus macrocephalus), several crab 
species, walleye pollock, 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 the revised proposed rule (86 FR 1452, 
January 9, 2021), 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 an INRMP 
addressing twelve radar sites, 10 of which (7 active and 3 inactive) 
are located adjacent to the area that was 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 10 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 we are designating as critical habitat, all of which 
occurs seaward of the 3-m isobath, does not overlap with DOD lands 
subject to this INRMP. 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 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 
described qualitatively or quantitatively. 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 scientific and commercial data available that 
the exclusion will not result in extinction of the species (16 U.S.C. 
1533(b)(2)). We have adopted a policy setting out non-binding guidance 
explaining generally how we exercise our discretion under 4(b)(2). See 
Policy Regarding Implementation of Section 4(b)(2) of the Endangered 
Species Act (``4(b)(2) policy,'' 81 FR 7226, February 11, 2016).
    While section 3(5) of the ESA defines critical habitat as 
``specific areas,'' section 4(b)(2) requires the agency to consider the 
impacts of designating any ``particular area.'' Depending on the 
biology of the species, the characteristics of its habitat, and the 
nature of the impacts of designation, ``particular'' areas may be--but 
need not necessarily be--delineated so that they are the same as the 
already identified ``specific'' areas of potential critical habitat. 
For the reasons set forth below, we exercised the discretion delegated 
to us by the Secretary to conduct an exclusion analysis based on 
national

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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 exclude this area from the designation 
because we 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 
designation), and other benefits that may arise, such as education of 
the public regarding 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 USFWS 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 final rule is described in detail in the 
associated Final Impact Analysis Report. 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. However, we could not monetize or quantify such costs, as 
forecasting potential future Federal actions that may require section 7 
consultation regarding Arctic ringed seal critical habitat becomes 
increasingly speculative 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 final rule as meeting the definition 
of critical habitat for the Arctic ringed seal. Additional detail is 
provided in the Final Impact Analysis Report prepared for this final 
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 any actions authorized, funded, or carried out by 
such agencies 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 Federal 
agencies and the public specific notice of the areas and features 
essential to the conservation of the Arctic ringed seal, and the types 
of activities that may reduce the conservation value or otherwise 
affect the habitat. This information will consistently focus future ESA 
section 7 consultations on key habitat attributes. 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 
avoid, minimize, and/or mitigate adverse effects to critical habitat 
from the outset.
    In addition, the critical habitat designation may result in 
indirect benefits, as discussed in detail in the Final 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 enhanced or sustained 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, could experience indirect benefits by enjoying 
subsistence activities associated with this species. As another 
example, the geographic area identified 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 enhance conservation of the polar bear, and in turn provide 
indirect benefits (e.g., existence and option values). Indirect 
benefits may also be associated with enhanced habitat conditions for 
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

[[Page 19246]]

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 Final 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 the best available information does not provide an estimate to 
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 (``section 7 consultations'') 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. Based on the best scientific and commercial data 
available and our assessment of the record of section 7 consultations 
from 2013 to 2019 on activities that may have affected the essential 
features (relatively few relevant consultations were identified for the 
3 years prior to when the Arctic ringed seal was listed under the ESA), 
as well as available information on planned activities, we have not 
identified any likely incremental economic impacts associated with 
project modifications that would be required solely to avoid impacts to 
Arctic ringed seal critical habitat. 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 Marine Mammal Protection Act (MMPA) both 
typically address habitat-associated effects to the seals even in the 
absence of a critical habitat designation. This is not to say such 
project modifications could not occur in situations we are unable to 
predict at this time, but based on the best information available for 
the 10-year period of the analysis, it is likely that any project 
modifications necessary to avoid impacts to Arctic ringed seal critical 
habitat would also be necessary to avoid impacts to the species in 
section 7 consultations that would occur irrespective of this 
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 from 2013 to 2019. 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 because of their 
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 section 7 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; however, we did not receive any new relevant 
information in response to our specific request for comments and 
information regarding the types of activities that are likely to be 
subject to section 7 consultation as a result of the designation that 
changed our projection of future Federal actions that may trigger 
consultation.
    We expect that the majority of future ESA section 7 consultations 
analyzing potential effects on the 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 section 7 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 Final 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, BOEM's 2017-2022 OCS Oil 
and Gas Leasing Program, and the reinstatement of the 2016 withdrawal 
of the Chukchi Sea and most of the Beaufort Sea from consideration for 
oil and gas leasing in January 2021 (Executive Order (E.O.) 13990). 
Although NMFS completed formal consultations for oil and gas 
exploration activities in the Chukchi Sea in all but 2 years between 
2006 and 2015, no such activities or related consultations with NMFS 
have occurred since that time.
    As detailed in the Final Impact Analysis Report, the total 
incremental costs associated with the critical habitat designation over 
the next 10 years, in discounted present value terms, are estimated to 
be $714,000 at a 7 percent discount rate and $834,000 at a 3 percent 
discount rate, for an annualized cost of $95,000 at both a 7 percent 
and a 3 percent discount rate. About 83 percent of these incremental 
costs are expected to accrue from ESA section 7 consultations 
associated with oil and gas activities in the Chukchi and Beaufort seas 
and adjacent onshore areas.
    We have 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 Final Impact Analysis Report, we are not 
exercising our discretion to further consider and weigh the benefits of 
excluding any particular area based on economic impacts against the 
benefits of designation.

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 military operations 
impacts of designating critical habitat for the Arctic ringed seal. In 
a letter dated June 3, 2013, the DOD Regional Environmental Coordinator 
indicated that no impacts on national security were foreseen from such 
a

[[Page 19247]]

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 an area that is used by 
the U.S. Navy for training and testing activities. This area was 
described as waters north of Prudhoe Bay off the Beaufort Sea shelf 
between approximately 125 and 200 nm from shore, extending east to the 
Canadian border and seaward to the outer boundary of the U.S. EEZ. 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 include waters off the Beaufort 
Sea shelf between approximately 100 and 200 nm from shore (noting that 
ice conditions have required the Navy to conduct some recent activities 
closer to shore). However, in developing this final rule, we followed 
up with the Navy regarding the location of this area. The Navy 
clarified that the description in its 2020 letter was outdated and 
inconsistent with the map included in the letter. The particular area 
the Navy intended to request be excluded from designation includes 
waters off the Beaufort Sea shelf between approximately 50 to 80 and 
200 nm from 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. 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 do not exempt the radar sites 
pursuant to section 4(a)(3)(B)(i) of the ESA, as discussed above, here 
we consider whether to exclude critical habitat located adjacent to 
these sites under section 4(b)(2) based on national security impacts.
    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 DOD'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 
authorize, 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 specific area 
identified as meeting the definition of critical for Arctic ringed 
seals in this final rule includes marine habitat extending seaward from 
the 3-m isobath (relative to MLLW), rather than from the line of MLLW 
as we had proposed. Thus, waters adjacent to the radar sites identified 
by the Air Force overlap to lesser extent with this specific area. 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 Final Impact Analysis Report, 
with respect to the Air Force's

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request, we have concluded that the benefits of exclusion do not 
outweigh the benefits of designation and therefore we are not 
exercising our discretionary authority to exclude these particular 
areas pursuant to section 4(b)(2) of the ESA 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 exclude the area requested by the Navy 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. 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 critical 
habitat 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.

Exclusion Based on National Security Impacts

    In the revised proposed rule, we proposed to exclude an area north 
of the Beaufort Sea shelf that is used by the Navy for training and 
testing activities based on our finding that the benefits to national 
security of exclusion outweigh the benefits of designation. In 
developing this final rule, we followed up with the Navy regarding the 
location of this area. The Navy clarified that the spatial data it 
previously provided to NMFS to map the requested exclusion 
inadvertently contained outdated information that did not reflect the 
full southern extent of the particular area they intended to request be 
excluded from the designation, which includes waters about 50 nm south 
of the southern boundary of the proposed exclusion area east of 
150[deg] W longitude. In reference to the southern extent of the 
requested exclusion, the Navy explained that the camp location for 
recent ICEXs has been positioned to the south of the area we proposed 
to exclude from designation in the revised proposed rule. In addition, 
the Navy requested that the western boundary of the proposed exclusion 
be extended one degree west to account for research activities being 
conducted by the Office of Naval Research within this area.
    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 
southern and western boundaries 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 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 possibility 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 18 percent 
of the marine habitat that meets the definition of critical habitat for 
the Arctic ringed seal, and approximately 60 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 suggests that habitat areas closer to the northern boundary of 
the U.S. EEZ are likely to retain sea ice suitable for birth lairs and/
or basking and molting longer than habitat areas further to the south. 
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 the 
westernmost part of the area requested for exclusion (Crawford et al. 
2019, Quakenbush et al. 2019, Quakenbush et al. 2020, Von Duyke et al. 
2020; ADF&G and North Slope Borough, 2020, unpublished data). We note 
that the telemetry data for these seals are unlikely to fully reflect 
the distribution of this species in U.S. waters for a number of 
reasons. For example, 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 
at this time 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 boundary of the 
U.S. EEZ in the Arctic Ocean Basin were also documented by marine 
mammal observers during a research geophysical

[[Page 19249]]

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. Based on our analysis of past Navy activities in the area, we 
think it is unlikely that modifications to such activities would be 
required if the particular area is designated as critical habitat 
(beyond modifications necessary to avoid impacts to ringed seals). 
However, we defer to the Navy's assessment of the critical importance 
of these activities to national security and acknowledge that any 
possibility of modifications could have adverse impacts on activities 
important to national security. 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.
    In the revised proposed rule, we found that the benefits of 
excluding the requested area due to national security impacts 
outweighed the benefits of designating this area as critical habitat 
for the Arctic ringed seal, and exclusion of the area is not expected 
to result in the extinction of the species. As discussed in the Summary 
of Comments and Responses section of this final rule, we received 
public comments that expressed opposition to the exclusion and 
requested that we reduce or better justify it. In response to public 
comments, we followed up with the Navy and requested any additional 
information the Navy could provide regarding the size of the area 
requested for exclusion and how the Navy's activities would be impacted 
by the critical habitat designation.
    In its written response, the Navy explained that to conduct ICEXs, 
the ice floe must meet strict criteria to support a camp and runway, 
such as thickness, lack of pressure ridges for the runway portion, and 
adjacent first-year and second-year ice. The Navy stated that given the 
variable nature of Arctic sea ice suitable to support the establishment 
of ice camps, the Navy's ICEX program requires flexibility for the area 
within which an ice camp may be established, as a location cannot be 
selected until just before the start of ICEX. The Navy explained that 
once established ice camps drift long distances (for example, as much 
as 100 miles) due to ocean currents and that the requested exclusion 
area ensures that the ice camp always remains within the bounds of that 
area for the entirety of ICEX.
    The Navy qualified that because it has not consulted with NMFS 
under section 7 on Arctic ringed seal critical habitat, and because 
Navy tactics, technologies, and training events evolve over time, any 
descriptions of probable impacts to military readiness of designating 
the area requested for exclusion are necessarily in part theoretical. 
The Navy explained that the specific requirements for Navy camps along 
with the ephemeral nature of ice floes significantly limits the 
physical space in which Navy activities may occur, even apart from 
avoiding impacts to critical habitat. The Navy stated that it is not 
inconceivable that a warming climate would further reduce available 
space suitable for the Navy's activities, and if site selection of the 
camp were further constrained--i.e., if Navy had to avoid locations in 
which its activities could have adverse impacts on the sea ice 
essential features--a suitable location may not be found, and 
necessitate cancellation of an exercise, which would result in impacts 
to Navy readiness. The Navy also stated that if impacts to the critical 
habitat were determined to be unacceptable in a future section 7 
consultation, it would not be possible to shift ICEX to a suitable area 
not designated as critical habitat given the proposed boundaries of the 
designation. The Navy emphasized that the area requested for exclusion 
is uniquely suited for Navy training and testing in direct support of 
the National Command Authority's National Security Strategy in the 
Arctic region.
    With regard to Office of Naval Research activities for which the 
Navy requested the western boundary of the proposed exclusion be 
extended one degree west, the Navy explained that these research 
activities include the deployment of moored acoustic sources that 
transmit intermittently year-round for the purpose of developing 
capabilities of navigating gliders or unmanned vehicles that can 
observe effects of climate change. The Navy described that the 
deployment or recovery of equipment may involve the use of an 
icebreaking vessel, which may remove or break up sea ice suitable for 
ringed seal basking and molting or birth lairs. The Navy stated that 
because locations to deploy and recover research equipment are pre-
selected and there is little flexibility, there is similarly little to 
no flexibility in conducting icebreaking activities. The Navy discussed 
that for this reason, if NMFS required modifications to these research 
activities in a future section 7 consultation to avoid impacts to the 
critical habitat--such as seasonal or spatial avoidance areas or not 
breaking ice which has certain conditions--it would have significant 
impact on these activities. The Navy stated that understanding changing 
Arctic conditions is critical for maintaining U.S. naval effectiveness 
and ensuring national security capabilities.
    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. However, we do not 
think this portion of ringed seal habitat contains features that are 
not found throughout the specific area designated as critical habitat, 
nor that exclusion would inhibit protection of the physical and 
biological features essential to the conservation of the species. 
Therefore, given the Navy's specific justification regarding potential 
impacts of the critical habitat designation on its military readiness 
activities that occur within the area requested for exclusion, 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 area we are designating as critical habitat, we 
have no reason to believe it is more valuable for Arctic ringed seals 
than other portions of the critical habitat based on the best 
information currently available, and threats to Arctic ringed seals in 
this area (including habitat-related threats) from Federal actions will 
continue to be subject to section 7 consultations. In addition, few to 
no other Federal actions are anticipated to occur in this particular 
area that would no longer be subject to consultation regarding impacts 
to ringed seal critical habitat if this area is excluded. Consequently, 
we are excluding this area from the designation of critical habitat for 
the Arctic ringed seal, and we have adjusted the critical habitat 
boundaries accordingly. We modified the curvilinear southern boundary 
of the exclusion area recommended by the Navy to simplify its 
delineation while still including the full area the Navy recommended, 
resulting in a slightly larger excluded area (about 0.5 percent more 
area).

[[Page 19250]]

    As explained in the Final Impact Analysis Report, the total 
incremental costs associated with designating the entire area 
identified 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 about $726,000 (discounted at 7 percent). The total 
incremental costs associated with the particular area excluded, which 
stem from administrative costs that would have been incurred from 
adding critical habitat analyses to consultations on the Navy's ICEX 
activities over the next 10 years, are estimated to be $12,000 
(discounted at 7 percent).

Final Critical Habitat Designation

    We are designating 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. 
We exclude from the designation a particular area of marine habitat 
north of the Beaufort Sea shelf that is used by the Navy for training 
and testing activities based on our finding 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 designating 
any such areas as critical habitat. In accordance with our regulations 
regarding critical habitat designation (50 CFR 424.12(c)), the map we 
include in the regulation, clarified by the accompanying regulatory 
text, constitutes the official boundary of the critical habitat 
designation.

Effects of Critical Habitat Designation

    Section 7(a)(2) of the ESA requires Federal agencies 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. Destruction or adverse modification means a direct or indirect 
alteration that appreciably diminishes the value of critical habitat as 
a whole for the conservation of a listed species (50 CFR 402.02). 
Federal agencies must consult with us on any agency action that may 
affect listed species or critical habitat. During interagency 
consultation, we evaluate the agency action to determine whether the 
action is likely to adversely affect listed species or critical 
habitat. The potential effects of a proposed action may depend on, 
among other factors, the specific timing and location of the action 
relative to the seasonal presence of essential features or seasonal use 
of critical habitat by listed species for essential life history 
functions. Although the requirement to consult on an action that may 
affect critical habitat applies regardless of the season, NMFS 
addresses spatial-temporal considerations when evaluating the potential 
impacts of a proposed action during the ESA section 7 consultation 
process. For example, if an action with short-term effects is proposed 
during a time of year that sea ice is not present, we may advise that 
consequences to critical habitat are unlikely. If we conclude in a 
biological opinion pursuant to section 7(a)(2) of the ESA that the 
agency action would likely result in the destruction or adverse 
modification of critical habitat, we would recommend one or more 
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 (among other reasons): (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. 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 is not required for Federal actions that do not affect listed 
species or designated critical habitat, and is not 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 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 certain military 
readiness activities. Section 7 consultations must be based on the best 
scientific and commercial information available, and outcomes are case-
specific. Inclusion (or exclusion) from this list, therefore, does not 
predetermine the occurrence or outcome of any section 7 consultation. 
However, as explained above, based on our review of prior consultations 
in the area, we have not identified a circumstance in which project 
modifications would be necessary solely to avoid impacts to Arctic 
ringed seal critical habitat, as it is likely any such modifications 
would also be necessary to avoid impacts to the species.
    Private or non-Federal entities may also be affected by the 
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. For ongoing activities, this designation 
of critical habitat may trigger reinitiation of past consultations. 
Although we cannot predetermine the outcome of section 7 consultations, 
we do not anticipate at this time that the outcome of reinitiated 
consultations would likely require project

[[Page 19251]]

modifications because habitat-related effects on Arctic ringed seals 
would likely have been assessed in the original consultation. We are 
committed to working closely with other Federal agencies to conduct any 
reinitiated consultations in an efficient and streamlined manner to the 
maximum extent possible and consistent with our statutory and 
regulatory requirements.

Summary of Comments and Responses

    We solicited comments on the revised proposed rule to designate 
critical habitat for Arctic ringed seals and the associated Draft 
Impact Analysis Report during a 90-day comment period and held three 
public hearings, as described above. We also contacted Federal, State, 
Tribal, and local agencies, and other interested parties by mail and 
invited them to comment on the revised proposed rule, and we issued 
news releases and published notices in local newspapers summarizing the 
revised proposed rule and inviting public comments. We received fifty 
unique written comment submissions and testimony from seven people 
during the public hearings.
    In addition, we solicited peer review from three reviewers of our 
evaluation, interpretation, and use of available data regarding what 
areas meet the definition of critical habitat in the revised proposed 
rule. The peer reviewers generally agreed that we relied on the best 
available data regarding the Arctic ringed seal's habitat requirements 
and generally concurred with our application of this information in 
determining specific areas that meet the definition of critical 
habitat, except for some particular aspects that we address below in 
our responses to peer reviewer comments. We also solicited peer review 
from three reviewers of the information we considered in the Draft 
Impact Analysis Report for the proposed designation. The peer reviewers 
found the information considered in the Draft Impact Analysis Report to 
be thorough and analyzed using appropriate methods. Most of the peer 
reviewers provided additional information, clarifications, and 
suggestions to further inform and improve the analyses. Some peer 
reviewers provided comments of an editorial nature that noted minor 
errors in the revised proposed rule or Draft Impact Analysis Report and 
offered non-substantive but clarifying changes in wording. We have 
addressed these editorial comments in the final rule and the Final 
Impact Analysis Report, as appropriate. Because these editorial 
comments did not result in substantive changes to the final rule, we 
have not detailed them here. The peer reviewer comments are available 
online (see Information Quality Act and Peer Review section). A few 
peer reviewers volunteered comments related to aspects of the proposed 
designation that were outside the scope of the requested reviews. We 
address those comments below in our responses to public comments.
    We have reviewed and fully considered all comments and significant 
new information received from peer reviewers and the public. Summaries 
of the substantive comments received and our responses are provided 
below. As some peer reviewer and public comments were similar, we have, 
in certain cases, combined the comments, and respond to both the peer 
reviewer and public comments in the Peer Review Comments section below. 
General comments that did not provide information pertinent to the 
revised proposed rule have been noted but are not addressed further 
here. We have not responded to comments or concerns outside the scope 
of this rulemaking, such as comments disagreeing with NMFS's prior 
decision to list the Arctic ringed seal as threatened under the ESA.

Peer Review Comments

Evaluation of Critical Habitat
    Comment 1: We received comments from the three peer reviewers and 
several other commenters related to our proposed delineation of the 
southern boundary of critical habitat. Two peer reviewers, as well as 
two other commenters, recommended that we identify winter-spring Bering 
Sea ice edge foraging habitat of subadults as an additional essential 
feature of Arctic ringed seal critical habitat and base the southern 
boundary of critical habitat on the position of the ice edge for March 
or April rather than May to include areas that contain this feature. 
These peer reviewers and commenters referred to information on the 
movement and dive behavior of tagged subadult ringed seals in the 
vicinity of the Bering Sea ice edge in winter and spring (Crawford et 
al. 2012a, 2019). The peer reviewers further noted that the seasonal 
pattern of southern ice edge use by subadults is distinct from adults 
and discussed reasons why it may be important habitat to this age 
class, including for winter foraging. The third peer reviewer commented 
that our description of the findings of Crawford et al. (2012a) 
understated data showing that almost all tagged subadults (11 of 12) 
wintered in Bering Sea ice edge habitat (Crawford et al. 2019). The 
peer reviewers and commenters stated that the first few years of life 
after seals are weaned are an important life history period for 
maintaining the population.
    Response: We thoroughly considered the information available on 
winter-spring use of Bering Sea ice edge habitat by subadult Arctic 
ringed seals. Regarding our description of the findings of Crawford et 
al. (2012a), our intent was not to downplay those data, but rather to 
explain our consideration of this information relative to our reasoning 
that the southern boundary of the specific area delineated for the sea 
ice essential features is also appropriate for defining the southern 
extent of where the primary prey resources essential feature occurs. We 
have clarified in the preamble to this final rule that almost all of 
the tagged subadult ringed seals monitored during the studies cited by 
the peer reviewer overwintered in Bering Sea ice edge habitat. The 
study by Crawford et al. (2012) provides information on certain aspects 
of winter-spring habitat in the Bering Sea used by tagged subadult 
ringed seals, such as distance to the southern ice edge, sea ice 
concentration, and water depth. However, there is insufficient 
information available at this time to identify what particular habitat 
characteristics are important determinants of subadult ringed seal use 
of such habitat, and to assess how those habitat characteristics 
provide for the species' life history requirements such that they are 
essential to the conservation of the Arctic ringed seal. We recognize 
that the survival of subadult ringed seals is important to the 
conservation of Arctic ringed seals and that subadults may select 
habitat differently than adults. However, the comments did not include 
any additional data or specific information to describe the physical or 
biological features that characterize this habitat, or to evaluate its 
importance to the conservation of the Arctic ringed seal, and we are 
not aware of any such data or information. Consequently, we have not 
identified ice edge habitat for overwintering subadults as an essential 
feature of Arctic ringed seal critical habitat. We note, however, that 
the ESA allows us to consider revising the critical habitat designation 
if, in the future, new information becomes available that indicates 
revision may be warranted. With regard to identification of critical 
habitat for the primary prey resources essential feature, see our 
response to Comment 31.
    Comment 2: One peer reviewer and several other commenters stated 
that because Arctic ringed seal whelping occurs from mid-March through 
April it would be more appropriate to base the southern boundary of 
critical habitat on

[[Page 19252]]

the position of the ice edge for March or April rather than for May. 
The commenters expressed concern that because ice conditions fluctuate, 
areas south of the proposed southern boundary may be important for 
ringed seal whelping in some years, with one commenter suggesting that 
the timing of life-cycle activities is changing, for example basking is 
sometimes observed before May, which they believe also supports 
designating critical habitat further south. Two commenters also noted 
that because the seals move with the ice as it contracts northward, the 
May ice edge is largely inhabited by the same seals that previously 
occupied the ice edge further south. In addition, a commenter stated 
that we should clarify our statement that the majority of the limited 
detections of pups during aerial surveys of the Bering Sea (conducted 
in 2012 and 2013) occurred in Norton Sound. The commenter also 
suggested that we seek additional records of ringed seals and pups in 
the Bering Sea from Outer Continental Shelf Assessment Program (OCSEAP) 
cruises and a bowhead whale survey conducted in 1979, and stated that 
the historical presence of whelping ringed seals on the Bering Sea ice 
front in April indicates that it served as suitable habitat; therefore, 
discounting April ice because of recent deterioration of the ice 
implies that the critical habitat will shrink continuously as the ice 
further diminishes. One commenter also stated that because it is 
important to account for the habitat needs of young Arctic ringed seals 
that require sea ice for molting beginning in mid-April, the southern 
boundary should be based on the position of ice edge for March. In 
contrast, the Marine Mammal Commission concurred with our use of the 
estimated position of the sea ice edge in May to delineate the southern 
boundary of critical habitat.
    Response: We understand the concern expressed by the peer reviewer 
and commenters. However, as we explained in the revised proposed rule 
and the Specific Areas Containing the Essential Features section of 
this final rule, in determining the southern boundary, we focused on 
delineating the southern extent of where the sea ice essential feature 
associated with birth lairs is found on a consistent basis. We relied 
on this essential feature in determining the southern boundary 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. Although April is the peak 
month for ringed seal whelping, snow-covered sea ice would need to 
persist for several weeks for pups to be sheltered and nursed in birth 
lairs. Taken as a whole, we continue to conclude that information 
available on the spring distribution of ringed seals in the Bering Sea 
suggests that the median position of the ice edge for May provides the 
best estimate of the southern extent of where the birth lair essential 
feature occurs on a consistent basis. We recognize that some ringed 
seals may use sea ice to whelp or molt south of the areas we are 
designating as critical habitat, depending upon ice conditions in a 
given year. However, as we stated in the revised proposed rule and this 
final rule, given 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, these waters are unlikely to contain the sea ice 
essential feature on a consistent basis in more than limited areas. 
This does not imply that habitat in the Bering Sea not included in the 
designation is unimportant to Arctic ringed seals, or may not support 
their conservation. Rather, the designation delineates the subset of 
habitat within the area occupied by the Arctic ringed seal in U.S. 
waters that meets the definition of critical habitat under the ESA 
based on the best scientific data currently available, and includes the 
majority of molting and reproductive habitat in the Bering Sea.
    Regarding the comments concerning our statement in the revised 
proposed rule that the majority of ringed seal pups documented during 
aerial surveys were located in Norton Sound, as indicated above, this 
general spatial pattern was similarly reported in terms of pup 
densities in the recent publication by Lindsay et al. (2021), which we 
reference in this final rule. As for the comment concerning additional 
records of ringed seals and pups in the Bering Sea, the commenter did 
not provide any specific reference information, and we thoroughly 
considered all available evidence on the spring distribution of ringed 
seals in the Bering Sea and where they may whelp, including information 
from older OCSEAP and other surveys where references were readily 
available.
    Comment 3: One peer reviewer commented that quality of Arctic 
ringed seal whelping habitat under climate change could be further 
considered, in particular regarding what is considered the sufficient 
depth of snowdrifts for birth lairs. The peer reviewer stated that it 
could be surmised that pup survival is variably affected by a continuum 
of snow depths, and argued that there is insufficient information 
available to establish a specific threshold snowdrift depth for the 
birth lair essential feature. The peer reviewer pointed out that the 
few studies that have measured snow depths at birth lairs were 
completed several decades ago before the modern period of substantial 
declines in sea ice, and noted that because these studies were not 
designed to measure snow depth requirements for successful whelping, 
per se, they are not necessarily the best source for determining a 
specific threshold snowdrift depth for birth lairs. The peer reviewer 
also commented that snow accumulation on sea ice is affected by several 
factors that have dramatically changed in recent years, for example, 
late formation of sea ice in the fall limits snow accumulation that 
contributes to lair construction and maintenance; and suggested that in 
recent years, it is possible that somewhat marginal whelping habitat is 
already found in the Pacific Arctic region, in the Bering and Chukchi 
seas in particular. Another commenter stated that because ringed seals 
will necessarily be faced with decreasing snow for birth lairs, we 
should base the minimum snowdrift depth for birth lairs on a 
measurement closer to the minimum depths that support ringed seal 
survival. In addition, a commenter stated that the snow depth data we 
relied on were typically from higher latitudes than the Bering Strait 
region, where habitat conditions are very different, and that it is 
well known that on-ice whelping occurs in this region.
    Response: We based the minimum snowdrift depth for the proposed 
birth lair essential feature on the best scientific data available from 
measurements taken at Arctic ringed seal birth lairs during studies 
conducted in a number of different locations within an 11-year time 
span to account for variability in environmental conditions. We 
recognize that the minimum snowdrift depth sufficient for birth lairs 
is unlikely to be a sharp threshold, so there may be many cases where 
successful birth lairs are created and maintained by ringed seals in 
snowdrifts shallower than that minimum depth. We also acknowledge that 
there may be regional and local variability in the conditions of sea 
ice habitat used by Arctic ringed seals for birth lairs. However, we 
are not aware of available data that would allow us to define the birth 
lair essential feature with more specificity on a regional or local 
basis. We note that although we considered the average minimum

[[Page 19253]]

snowdrift depth measured at birth lair sites in Alaska, the average 
from these studies is based on data from fewer years over a shorter 
time span than from all the available studies combined (see Physical 
and Biological Features Essential to the Conservation of the Species 
section) and is more likely to be biased if an anomalous weather 
pattern occurred during a more limited timeframe. As we indicated in 
the revised proposed rule, given the limitations of the best scientific 
data available, for the birth lair essential feature, we defined 
snowdrifts of sufficient depth as ``typically'' at least 54 cm deep. 
This wording is to inform the reader that the minimum snowdrift depth 
is provided as guidance regarding where birth lairs may occur, rather 
than as a specific threshold snowdrift depth. With regard to the 
comment that the minimum snowdrift depth should be based on the minimum 
depths that support ringed seal survival, we are not aware of available 
scientific data that could provide a basis for identifying such depths.
    Regarding changes in Arctic ringed seal whelping habitat under 
climate change, in the rule listing the Arctic ringed seal as 
threatened under the ESA, we recognized that the depths and duration of 
on-ice snow cover are projected to decrease substantially throughout 
the species' range (77 FR 76706; December 28, 2012). Thus, habitat 
conditions for ringed seal whelping are expected to deteriorate over 
time, in particular within the southern portion of the species' range. 
Although we acknowledge that some Arctic ringed seals may whelp and/or 
nurse their pups without the protection of lairs where snow depths are 
insufficient or lairs have collapsed, available data indicate that 
under these circumstances pup mortality is substantially higher as a 
result of hypothermia and predation. In addition, it is very likely 
that decreased snow cover over birth lairs would leave Arctic ringed 
seal pups more accessible to Arctic foxes. Furthermore, both polar 
bears and Arctic foxes would require less time to detect and attempt to 
catch Arctic ringed seal mothers and pups that are not concealed in 
birth lairs. Predation on pups by gulls and ravens is typically 
prevented by the pups' concealment in subnivean lairs. However, when 
the pups are prematurely exposed, predation by birds can be substantial 
(e.g., Lydersen and Smith 1989). Alaska Native hunters from Kotzebue, 
Alaska, have similarly reported that when snow melts early, there is no 
protection for ringed seal pups from predators such as jaegers and 
ravens, as well as foxes (Huntington et al. 2017a).
    Comment 4: One peer reviewer commented that the average life span 
of ringed seals that we identified is low relative to sample 
collections from the subsistence harvest in Alaska between 2000 and 
2019, which indicate that life span, as well as reproductively active 
age, is likely longer than 25 years, and the reviewer summarized other 
related information (Quakenbush et al. 2020; Alaska Depatment of Fish 
and Game (ADF&G), unpublished data).
    Response: We have updated the Description and Natural History 
section of this final rule to reflect the peer reviewer's comment 
regarding ringed seal life span and reproductively active age.
    Comment 5: One peer reviewer commented that our description of the 
``open water foraging period'' as when Arctic ringed seals feed most 
intensively is misleading without further explanation, as it implies 
this is the most important period for feeding, which is not correct, 
and recommended that the name for this period be changed. The peer 
reviewer stated that seasonal changes in ringed seal weight and/or 
blubber reserves documented by several studies indicate that ringed 
seals are thinnest in spring and summer and that they begin to regain 
fat stores toward the end of the open-water season and continuing into 
winter. In addition, the peer reviewer provided information on seasonal 
changes in the dive rate (an index of foraging effort) (Crawford et al. 
2019; ADF&G, unpublished data), which overall was lower during July-
September than October-February. The peer reviewer suggested that the 
reason why ringed seals are moving more but feeding less, or at least 
gaining little weight during the open-water period, may be due to what 
prey are available. The peer review noted that Lowry et al. (1980a) 
reported a seasonal switch from Arctic cod in winter to invertebrates 
in later summer, and suggested that invertebrate prey that are 
numerically more available but patchy in their distribution may explain 
an increase in movement and foraging intensity in summer without a 
corresponding weight gain.
    Response: To address the peer review's comments, we have revised 
the statement regarding seasonal changes in ringed seal blubber 
reserves in the Distribution and Habitat Use section of this final rule 
to clarify that the seals lose a significant proportion of their 
blubber mass in late winter to early summer, and then replenish their 
blubber reserves during late summer or fall and into winter. In 
addition, in the preamble to this final rule we refer to the ``open-
water period'' instead of the ``open-water foraging period.''
    Comment 6: One peer reviewer commented that we should address a new 
publication by Thometz et al. (2021) in our discussion of the ``basking 
period.'' The peer reviewer noted that this study found that there were 
significant, but short-term, increases in captive ringed seal resting 
metabolic rate during molt, which is in contrast to the finding of 
Ashwell-Erickson et al. (1986) that resting metabolic rate in spotted 
seals decreased during molt. The peer reviewer also commented that the 
earlier molt documented for a ringed seal kept at local photoperiod in 
California, as compared to two ringed seals kept at local photoperiod 
in Alaska, suggests some flexibility in the timing of molt.
    Response: We have updated the discussion of the basking period in 
the Distribution and Habitat Use section of this final rule to 
incorporate the information on ringed seal metabolic rate during the 
molt reported by Thometz et al. (2021). We disagree that photoperiod-
driven molt timing reflects flexibility in the process, especially if 
the reviewer meant to suggest that this implies ringed seals may be 
able to shift the timing of critical life history functions as a way of 
adapting to earlier snow melt and ice breakup. The tight linkage 
between photoperiod and molt timing actually suggests a fairly rigid, 
rather than a flexible process, constrained by complex, highly evolved, 
long chains of dependence in photo-chemical and hormonal signaling 
pathways (Walker et al. 2019). In addition, photoperiod is not 
something we expect to change with Arctic warming (Walker et al. 2019). 
Therefore, we would not expect that the timing of molt or other 
critical life history events that are hormonally linked to photoperiod 
to naturally shift to track the loss of sea ice and snow cover that 
threaten Arctic ringed seals. Perhaps the reviewer meant that molt 
timing could be flexible in the sense that ringed seals could move 
latitudinally to align hormonal timing with local snow/ice conditions. 
However, the study by Thometz et al. (2021), which used ringed seals 
translocated to captive care facilities, doesn't address the capability 
or likelihood for wild ringed seal individuals to relocate their 
breeding and molting areas in response to degrading snow/ice habitat; 
nor does it address whether, on a population basis, shifts in breeding 
and molting areas can occur as rapidly as suitable habitat is 
anticipated to be lost.

[[Page 19254]]

    Comment 7: One peer reviewer suggested adding rainbow smelt to the 
proposed definition of the primary prey resources essential feature 
because available diet information for Arctic ringed seals in Alaska 
indicates that this fish species has increased in importance in the 
seals' diets in the 2000s (Quakenbush et al. 2011, Crawford et al. 
2015, Quakenbush et al. 2020). In addition, another commenter requested 
that euphausiids and mysids be identified as primary prey resources 
because they were reported as frequently consumed by ringed seals near 
Utqia[gdot]vik. A commenter also expressed concern that herring was not 
identified as a primary prey species. This commenter reported that as a 
local subsistence hunter, they have observed ringed seals feeding on 
herring in bays located south of the proposed critical habitat, and 
suggested that it is likely this is also the case within the area being 
proposed for designation. In contrast, two other commenters stated that 
the best scientific information available demonstrates that Arctic 
ringed seals eat a variety of prey and, therefore, no particular prey 
species is essential to their conservation. The commenters referred to 
the status review of the ringed seal (Kelly et al. 2010a), which 
reported that the seals eat a wide variety of prey resources spanning 
several trophic levels; and also referred to a study by Quakenbush et 
al. (2011), which documented numerous prey species in the stomach 
contents of ringed seals, and found that ringed seals are consuming a 
greater diversity of fish species than they did historically.
    Response: While we acknowledge that Arctic ringed seals have a 
diverse diet, and that Quakenbush et al. (2011) reported that the diet 
of Arctic ringed seals in the Alaskan Bering and Chukchi seas shifted 
between the historic and recent periods toward a greater proportion and 
diversity of fish during the recent period, we do not interpret this 
information as indicating that no particular prey species are essential 
to the seals' conservation. As we discussed in the revised proposed 
rule, the available data also indicate that certain prey species occupy 
a prominent role in the diets of ringed seals in waters along the 
Alaskan coast. Because the seals likely rely on these prey species the 
most to meet their annual energy budgets, they are an important habitat 
characteristic that supports the species' conservation. Accordingly, we 
continue to find that primary prey resources to support Arctic ringed 
seals compose an essential feature of Arctic ringed seal critical 
habitat.
    We proposed to define primary prey resources to support Arctic 
ringed seals as Arctic cod, saffron cod, shrimps, and amphipods, based 
on our assessment of the diet information available for ringed seals in 
Alaska from studies that relied on stomach content analysis. Our 
initial goal was to identify a small number of the most important prey 
species to ringed seals across their range in Alaskan waters, and not 
just important in a single region or time period. We considered primary 
prey resources to be those particular prey species that were commonly 
consumed by ringed seals in more than one region (i.e., Bering, 
Chukchi, and/or Beaufort seas), and for studies that reported diet 
information within both an historical and recent period, those 
particular prey species that were commonly consumed by ringed seals 
during both periods. However, in response to comments requesting 
additional prey species be included in the definition of the primary 
prey resources essential feature, we re-evaluated the information on 
ringed seal diets in Alaska used to support the proposed definition of 
this essential feature, along with new diet information provided in a 
recent report cited in the peer reviewer's comments (Quakenbush et al. 
2020), to determine if revising the definition of this essential 
feature may be appropriate.
    As noted by the peer reviewer, evidence from the available diet 
studies indicates that consumption of rainbow smelt by ringed seals in 
Alaska has increased since about 2000. The studies reported this 
species as commonly consumed (considered here to be prey items 
identified in at least 25 percent of ringed seal stomachs): (1) In the 
Bering and Chukchi seas (by non-pup seals) during the ice-covered and 
open-water seasons within both the 2016 to 2020 and 2000 to 2015 
periods (Quakenbush et al. 2020); (2) in the Chukchi Sea (not reported 
by age class) during the ice-covered and open-water seasons within the 
1998 to 2000 period (Quakenbush et al. 2011); and (3) near Shishmaref 
(pups and non-pup seals) during May through July (study results were 
limited to these specific months) within the 2003 to 2012 period 
(Crawford et al. 2015). With regard to the comment requesting inclusion 
of euphausiids and mysids as primary prey species, as indicated in the 
revised proposed rule, Dehn et al. (2007; Table 2) found that in the 
Utqia[gdot]vik vicinity, euphausiids and mysids were commonly consumed 
by ringed seals (primarily during summer). However, the other diet 
studies we reviewed did not indicate that ringed seals commonly 
consumed euphausiids. Mysids were also commonly consumed by pups in the 
Bering and Chukchi seas within the 2016 to 2020 period during the ice-
covered season specifically (Quakenbush et al. 2020), but they were 
otherwise reported only as prey items commonly consumed by ringed seals 
in these regions during the historical period evaluated (Quakenbush et 
al. 2011, Crawford et al. 2015). Regarding the commenter's concern over 
Pacific herring (Clupea pallasi), this species was commonly consumed by 
non-pup seals near Shishmaref during May through July within the 2003 
to 2012 period specifically (Crawford et al. 2015), but for the diet 
studies we reviewed (Lowry et al. 1980b, Frost and Lowry 1984, Dehn et 
al. 2007, Quakenbush et al. 2011, Crawford et al. 2015, Quakenbush et 
al. 2020), this species was not otherwise identified as a commonly 
consumed prey species. Still, the commenter is a subsistence hunter 
with knowledge of ringed seals feeding on herring near Bristol Bay, and 
we note that IK documented for several communities in the Bering Strait 
and northern Bering Sea regions also indicates that ringed seals feed 
on Pacific herring, in particular during spawning (e.g., Oceana and 
Kawerak 2014, Gadamus et al. 2015, Huntington et al. 2016, 2017c, 
2017b).
    As described in more detail in the Physical and Biological Features 
Essential to the Conservation of the Species section of this final 
rule, the available information on ringed seal diets in Alaska indicate 
that diet composition and the relative prominence of certain prey 
species vary both geographically and seasonally, and differences in 
diet between age classes (pups and non-pup seals), as well as a 
temporal shift in diet in the Bering and Chukchi seas, have been 
reported. In addition, ringed seal diet information for the Beaufort 
Sea is relatively limited. We have therefore revised the regulatory 
definition of the primary prey resources essential feature to include a 
description of the seals' most common types of prey, which are small, 
often schooling fishes, and small crustaceans, and to identify for 
those types of prey, the prominent prey species in the seals' diets in 
Alaska. We find that this level of specificity, naming species known to 
be prominent in Arctic ringed seals' diet but not limiting the 
definition to only those species, is most appropriate for defining this 
essential feature based on the best scientific data available. Although 
in the revised proposed rule we focused on prey species that were 
commonly consumed in both historical and more recent periods for 
studies that

[[Page 19255]]

provided this information, given the reported increase in occurrence of 
rainbow smelt in the diets of ringed seals in the Bering and/or Chukchi 
seas since about 2000, we concluded that it is appropriate to identify 
rainbow smelt as a primary prey species, along with those primary prey 
species identified in the revised proposed rule (i.e., Arctic cod, 
saffron cod, shrimps, and amphipods). Because these prey species were 
prominent in the diets of ringed seals in Alaska, we conclude that they 
are essential to the conservation of the Arctic ringed seal. Although 
other prey items, such as those that commenters requested be identified 
as primary prey species (i.e., euphausiids, mysids, and Pacific 
herring), were reported as commonly consumed by ringed seals (per the 
same 25 percent of stomachs with contents criterion considered above), 
these reports were more spatially and temporally limited. We identify 
the primary prey resources essential feature in this final rule as 
follows: Primary prey resources to support Arctic ringed seals, which 
are defined to be small, often schooling, fishes, in particular, Arctic 
cod, saffron cod, and rainbow smelt; and small crustaceans, in 
particular, shrimps and amphipods.
    Comment 8: One peer reviewer commented that although there are not 
satellite tracking data available indicating ringed seals haul out on 
land during the molt, they likely do not need to, because sea ice is 
available during the molting period. The peer reviewer noted that four 
tagged ringed seals (three adults and one pup) were documented hauled 
out on land at other times (Quakenbush et al. 2019), which the reviewer 
suggested indicates that ringed seals could haul out on land to molt if 
necessary. In addition, with regard to the discussion of sea ice 
suitable for molting, the peer reviewer requested that we add 
references to support the following statement: ``If Arctic ringed seals 
were unable to complete their annual molt successfully, they would be 
at increased risk from parasites and disease.''
    Response: We recognize that Arctic ringed seals have sometimes been 
observed hauled out on land, typically during the open-water period 
following their annual molt. However, several studies (Hamilton et al. 
2015, Lone et al. 2019, Von Duyke et al. 2020) found that some tagged 
ringed seals made long excursions offshore to reach sea ice and haul 
out, even when the ice was in areas that seemed to be suboptimal for 
foraging or energetically costly to get to. This, and the fact that 
observations of ringed seals ashore remain rare, are consistent with 
our conclusion that the best scientific data available indicate a 
strong preference by Arctic ringed seals to haul out on sea ice during 
the molt, perhaps reflecting fitness tradeoffs such as predation risk 
associated with hauling out on shore. With regard to the statement 
concerning risk from parasites and disease, it is reasonable to infer 
that if ringed seals' molt becomes more frequently interrupted by being 
forced to spend inordinate amounts of time in water while completing 
their annual molt, they could incur increased energetic costs and risk 
microbial infections of the skin (Fay et al. 1978). We have revised the 
statement in question in the preamble of this final rule to reflect 
this reasoning.
    Comment 9: One peer reviewer felt that referring to the median ice 
edge as a ``contour line'' is somewhat confusing, as this term is often 
used in the context of the marine environment to refer to bathymetric 
contours. The peer reviewer suggested it might be more straightforward 
to use different terminology, e.g., ``the southern boundary,'' or to 
equate the median May ice edge with the nearest bathymetric contour to 
define a more natural boundary.
    Response: We have modified the language used in this final rule 
preamble to instead refer to the ``line representing'' the sea ice 
edge. We appreciate the suggestion to use the nearest bathymetric 
contour line to define the southern boundary of critical habitat. 
However, the depth contours do not align well with the position and 
shape of the median May ice edge, so we have not based the southern 
boundary of critical habitat for Arctic ringed seals on a depth 
contour.
    Comment 10: In reference to our discussion of primary sources of 
potential threats to the essential features that may require special 
management considerations or protection, one peer reviewer suggested 
that the analysis by Quakenbush et al. (2019) of tagged Arctic ringed 
seal movements relative to both oil and gas lease areas in the Chukchi 
and Beaufort seas, and shipping traffic in the northern Bering and 
Chukchi seas, could be used to describe the temporal overlap of ringed 
seals and these activities.
    Response: We appreciate this suggestion. However, our evaluation of 
oil and gas activity and marine shipping and transportation as sources 
of threats that may require special management considerations or 
protection focuses on potential impacts to each of the essential 
features of Arctic ringed seal critical habitat. Because the analysis 
referenced by the peer reviewer does not pertain directly to effects of 
these activities on the essential features, we have not incorporated 
the suggested information into that evaluation.
    Comment 11: One peer reviewer commented that of the four sources of 
potential threats for which we concluded the essential features may 
require special management considerations or protection (climate 
change, oil and gas activity, marine shipping and transportation, and 
commercial fisheries), only oil and gas activity and commercial 
fisheries typically have a Federal nexus requiring ESA section 7 
consultation. The peer reviewer stated that although climate change is 
the source of the most serious habitat threats, it does not appear to 
lend itself to management that would benefit Arctic ringed seals now or 
in the future. Similarly, several other commenters asserted that our 
finding that the essential features may require special management 
considerations or protection relied on threats that are nonexistent or 
minor compared to climate change. Commenters further asserted that this 
finding is not consistent with ESA requirements because we did not 
identify any specific management considerations or measures that would 
be useful in protecting the essential features or identify how such 
measures would be implemented. Commenters also stated that existing 
regulatory mechanisms such as the MMPA and other Federal, State, and 
local regulatory mechanisms already sufficiently protect the species 
from threats and impacts. Two of the commenters further asserted that 
the identified essential features do not support designation of 
critical habitat because there are no special management considerations 
or protections that would be useful in protecting these features.
    Response: In accordance with section 3(5)(A)(i) of the ESA and our 
implementing regulations at 50 CFR 424.12(b)(1)(iv), we evaluated 
whether each of the essential features ``may require special management 
considerations or protection.'' An important word in this statutory 
phrase is ``may.'' We must show that such special management 
considerations or protection may be needed now or in the future, not 
that the habitat features definitively will require such considerations 
or protection. Moreover, 50 CFR 424.02 defines special management 
considerations or protection to ``mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species.'' In other words, any

[[Page 19256]]

relevant method or procedure qualifies as special management 
considerations or protection. Even if specific management measures are 
presently undeterminable, they may become determinable in the future 
because of continuing advances in science and technology. (See Alaska 
Oil & Gas Ass'n v. Salazar, 916 F. Supp. 2d 974, 990-992 (D. AK 2013) 
(``The Service has shown that someday, not necessarily at this time, 
such considerations or protection may be required . . . For example, 
the evidence in the record showing that sea ice is melting and that it 
will continue to melt in the future, perhaps at an accelerated rate, is 
more than enough proof that protection may be needed at some point''), 
reversed on other grounds by Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 
544 (9th Cir. 2016)). Additionally, the question is whether the 
essential features identified may require special management 
considerations or protection, not whether all threats to those 
features, including climate change, could be cured through management. 
For example, if sea ice with snow depths suitable for construction of 
subnivean lairs becomes more scarce in the future, special management 
considerations or protections for remaining ice may become necessary, 
not to prevent or reverse the effects of climate change, but to further 
protect use of the remaining essential features. As discussed in detail 
in the Special Management Considerations or Protection section of this 
final rule, the ``may require'' standard is met or exceeded with 
respect to each of the essential features of Arctic ringed seal 
critical habitat.
Draft Impact Analysis Report
    Comment 12: One peer reviewer suggested that the analysis of the 
impacts of the critical habitat designation could be put into 
perspective by including a brief reference to the rate of climate 
change in the Arctic. The peer reviewer commented that oil and gas is 
the industry most affected by the critical habitat designation, and yet 
those activities are the ones most likely to negatively impact the 
seals, as well as other marine resources within the area under 
consideration for designation. Another peer reviewer questioned the 
language in the Draft Impact Analysis Report that referred to ``long-
term reductions in sea ice and on-ice snow depths expected to occur 
within the foreseeable future,'' given that rapid sea ice loss is 
already occurring at unprecedented rates. This peer reviewer advised 
that the analysis would be strengthened and more grounded in current 
science by acknowledging that GHG emissions are wholly responsible for 
Arctic sea ice loss. Further, the peer reviewer stated that activities 
that release GHGs into the atmosphere are ``the'' major contributing 
factor to climate change and sea ice loss, rather than ``a'' factor, as 
stated in the report. The peer reviewer noted that the effectiveness of 
the designation for the species' conservation is, however, most 
dependent on the elimination of GHG emissions by mid-century, keeping 
global temperatures from rising beyond 1.5 [deg]C above pre-industrial 
levels, and consequently minimizing sea ice loss.
    Response: We have incorporated a reference to the rate of climate 
change in the Arctic into the Final Impact Analysis Report, as 
suggested by the peer reviewer. Although the report contains a limited 
discussion of climate change and sea ice loss in the Arctic, we discuss 
this topic in more detail in the Special Management Considerations or 
Protection section of this final rule. We agree with the peer 
reviewer's comment that activities that release GHGs are the major 
contributing factor to climate change and sea ice loss, and we have 
modified the preamble of this final rule and the Final Impact Analysis 
Report accordingly. The critical habitat designation can help address 
potential threats to the species' habitat and mitigate the effects of 
climate change. Furthermore, it is possible that actions may be taken 
that could reduce GHG emissions and slow the changes in sea ice 
habitat, particularly toward the latter part of this century. Arctic 
ringed seals will increasingly experience the impacts of habitat 
alteration stemming from climate change and it is therefore important 
to identify and provide protection under ESA section 7 for the habitat 
features and areas essential to the species' conservation.
    Comment 13: One peer reviewer suggested that it might be 
informative to compare the estimated incremental administrative costs 
of future section 7 consultations attributable to the critical habitat 
designation with financial data (e.g., overall production costs, as 
well as profits) from certain industries, in particular the oil and gas 
industry. The peer reviewer commented that other industry expenditures 
associated with leasing, exploration, drilling, etc., surely must 
greatly exceed potential incremental administrative costs of 
consultations.
    Response: Although the information suggested by the peer reviewer 
could provide additional perspective on the estimated incremental costs 
of future section 7 consultations for oil and gas related activities, 
we determined that the information considered in the Final Impact 
Analysis Report provides sufficient context for the analysis. We also 
note that this report includes information on average annual receipts 
for oil and gas operations identified as potentially subject to future 
section 7 consultations addressing the critical habitat.
    Comment 14: One peer reviewer commented that it is important to 
underscore educational, scientific, and non-consumptive use benefits 
from increased public awareness generated by the critical habitat 
designation process itself. Similarly, another commenter stated that 
the designation process educates managers, state and local governments, 
and the public regarding the conservation value of critical habitat 
areas to listed species, which can inform management decisions, 
conservation programs, and recovery efforts. The peer reviewer also 
suggested that the potential role of marine mammals in general as the 
``canary in the coal mine'' on climate change is something useful for 
scientists as well as the general public. In addition, the peer 
reviewer stated that the distributional impacts of the designation are 
importantly in favor of Alaska Native communities, who depend on marine 
resources for subsistence, employment, and income. Another peer 
reviewer commented that the discussion of the positive impacts of the 
designation to community resilience of underserved Arctic coastal 
communities could be strengthened.
    Response: We agree with the peer reviewers and the other commenter 
that the critical habitat designation for the Arctic ringed seal can 
have a number of ancillary and indirect economic, socioeconomic, 
cultural, and educational benefits, such as those described in these 
comments. Such benefits are discussed in detail in Section 4 of the 
Final Impact Analysis Report, and additional information regarding 
potential benefits has been incorporated into that section of the 
report as appropriate. As discussed in this report, all of the types of 
benefits identified are at least partially co-extensive with those 
afforded through the ESA listing of the species (i.e., they are not 
attributable solely to critical habitat designation). Data are not 
available to determine the extent to which such benefits would be 
attributable specifically to critical habitat designation.
    Comment 15: One peer reviewer stated that while they did not 
disagree with the conclusion in the Draft Impact Analysis Report that 
there are likely some incremental benefits from

[[Page 19257]]

designating critical habitat for the Arctic ringed seal, they found it 
unclear if the information in the report supports a finding that there 
is a net benefit (and also questioned whether such a finding is 
necessary). The peer reviewer suggested that the report clearly set out 
(qualitatively) how the designation would result in an incremental 
change in benefits from the baseline (without critical habitat). The 
peer reviewer also commented that for some of the benefits ascribed to 
the designation (e.g., support of subsistence activities and commercial 
fishing), it would seem there needs to be an incremental change in the 
quality of the habitat from the baseline, which suggests the 
designation would result in a change to activities that impact the 
critical habitat, even though section 7 consultations are not expected 
to result in additional project modification requests attributable to 
the designation. The peer reviewer suggested that the report further 
characterize the ability of the designation to influence the design of 
projects prior to consultation, or include additional information 
regarding other ways that the designation could result in an 
incremental change in habitat quality. Alternatively, the peer reviewer 
suggested focusing on benefits they believe have stronger support 
(education, scientific knowledge, cultural support, and non-use values 
associated with habitat protection). In contrast, another peer reviewer 
stated that the report provided a very thorough summary of the expected 
costs and benefits and made a well-grounded assessment of the longer-
term costs/benefits versus shorter-term costs/benefits.
    Response: The ESA requires us to designate critical habitat to the 
maximum extent prudent and determinable for threatened and endangered 
species listed under the ESA (16 U.S.C. 1533(a)(3)(A)(i)). Section 
4(b)(2) of the ESA requires us to designate critical habitat 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. In addition, section 4(b)(2) describes an optional process by 
which we may go beyond the mandatory consideration of impacts and weigh 
the benefits of excluding any particular area against the benefits of 
designating it. We did not intend to convey in the Draft Impact 
Analysis Report that the ESA requires any showing that a designation 
will result in net benefits. We have revised the Final Impact Analysis 
Report to better communicate the purpose and need for this analysis. In 
addition, in response to the peer reviewers' comments and suggestions, 
we expanded Section 4 of the Final Impact Analysis Report to 
incorporate additional details presented in the revised proposed rule 
regarding ways in which critical habitat designation for the Arctic 
ringed seal can result in incremental benefits. Although we do not 
anticipate modifications to Federal actions expressly to avoid impacts 
to the critical habitat as distinct from impacts to ringed seals, we 
note that this does not mean such modifications could not occur in 
situations we are unable to predict at this time.
    Several non-regulatory benefits are expected to result from the 
designation. Critical habitat designation provides specific notice to 
Federal agencies and the public of the geographic areas and physical 
and biological features essential to the conservation of the species, 
and information about the types of activities that may reduce the 
conservation value of the habitat. This information will focus future 
section 7 consultations on key habitat attributes. Designation of 
critical habitat can also inform Federal agencies of the habitat needs 
of the species, which may facilitate using their authorities to support 
the conservation of the species pursuant to section 7(a)(1) of the ESA, 
including to design proposed projects in ways that avoid, minimize, 
and/or mitigate adverse effects to critical habitat from the outset. 
Public awareness of critical habitat designations may also stimulate 
voluntary conservation actions by the public, as well as research, 
education, and outreach activities.
    In addition to the benefits of critical habitat to the seals, as 
detailed in Section 4 of the Final Impact Analysis Report and 
summarized in the Benefits of Designation section of this final rule, 
other forms of benefits may also accrue. These 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 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 hunters, may 
experience indirect benefits. As discussed in Sections 4 and 6 of the 
Final Impact Analysis report, although available information is 
insufficient to quantify or monetize the benefits of designation, they 
are not inconsequential, and the potential incremental economic impacts 
associated with the designation are modest both in absolute terms and 
relative to the level of economic activity expected to occur in the 
affected area (see Economic Impacts section).

Public Comments

Essential Features
    Comment 16: One commenter recommended that we omit the statement 
indicating that Arctic ringed seals favor landfast ice as whelping 
habitat because it is quite likely that the majority of Arctic ringed 
seals whelp in moving ice, even if highest densities have been reported 
in shorefast ice.
    Response: As we noted in the revised proposed rule, nearly all 
research on Arctic ringed seal reproduction has been conducted in 
landfast ice, and although whelping has been observed on both nearshore 
and offshore drifting pack ice, the potential importance of stable but 
drifting pack ice to the species' reproduction has not been adequately 
investigated. In response to this comment, we have modified the related 
preamble text to clarify that Arctic ringed seals have been ``reported 
to'' favor landfast ice.
    Comment 17: Two commenters suggested that the minimum snowdrift 
depth proposed for the birth lair essential feature based on research 
conducted during colder periods may not be applicable if temperatures 
warm as projected, and they added that some ringed seal populations 
(e.g., Okhotsk subspecies) do not require subnivean lairs for pup 
survival. One of the commenters also stated that genetic data indicate 
that ringed seals have previously survived warmer periods with less 
snow.
    Response: Like most phocid seals, Arctic ringed seals whelp and 
nurse their pups on sea ice. However, snow-covered lairs are 
particularly important for Arctic ringed seal pups given that: (1) 
Arctic ringed seal pups have the longest nursing period of any of the 
northern phocid species (about 6 weeks); and (2) during the period of 
whelping and nursing, Arctic ringed seal females and pups are limited 
in their movements, thus making them even more vulnerable to predation. 
Further, the Arctic ringed seal is the only ice-associated seal that 
has evolved to occupy landfast coastal ice, where surface predators are 
common. When snow depth is insufficient, pups can freeze in their 
lairs, as documented in

[[Page 19258]]

the White Sea by Lukin and Potelov (1978). Further, unseasonal warming 
and rains will become increasingly common as the climate warms (e.g., 
Hezel et al. 2012), and such events have led to high pup mortality when 
collapse of lairs was followed by a return to cold temperatures (Lukin 
and Potelov 1978, Stirling and Smith 2004, Ferguson et al. 2005). 
Moreover, pups not sheltered in lairs would have to expend substantial 
energy reserves to maintain their core body temperature in such 
conditions, and would thus be more susceptible to other stressors. Pups 
in lairs with thin snow cover are also more vulnerable to predation 
than pups in lairs with thick cover (Hammill and Smith 1989, Ferguson 
et al. 2005), and pups not sheltered in lairs would be particularly 
vulnerable to predation (see also our response to Comment 3). It has 
been reported that when lack of snow cover has forced birthing to occur 
in the open, nearly 100 percent of pups died from predation (Smith et 
al. 1991, Smith and Lydersen 1991).
    With regard to Okhotsk ringed seals, Heptner et al. (1976) pointed 
out that lairs ``can be detected only with the help of a dog.'' Kelly 
et al. (2010a) discussed that they were not aware of any attempts to 
locate subnivean lairs using dogs in the Sea of Okhotsk, and that the 
extent to which Okhotsk ringed seals rely on lairs is unknown. Further, 
Kelly et al. (2010a) commented that unlike Arctic ringed seals, Okhotsk 
ringed seal whelping appears largely restricted to areas of drifting 
pack ice where surface predators are relatively rare (and polar bears 
are absent from the Sea of Okhotsk), indicating that even if Okhotsk 
ringed seals have less reliance on lairs than Arctic ringed seals, such 
differences may be attributable to environmental factors rather than 
reflecting a universal ability of ringed seals to persist without 
lairs. The best scientific information available would suggest the 
Okhotsk population has decreased, but estimates of population size are 
poor (see Kelly et al. 2010a).
    As for species persistence during previous warmer periods with less 
snow, we are uncertain what data from warm periods or years the 
commenter is suggesting we use instead of the data selected, and we are 
not aware of any data from previous warm periods that could serve as an 
appropriate analog for current climatic conditions, nor do we think 
considering birth lair depth in only the warmest years in the past 
several decades would provide us with an appropriate data set. We also 
note regarding warm interglacial periods, that we are not aware of any 
available information on ringed seal adaptive responses during those 
periods. A fundamental difficulty in using previous warm periods as 
analogs for the current climate disruption is that the rate of warming 
in prehistoric periods is poorly known. The species' resilience to 
those previous warming events, which may have been slower than the 
current warming, does not necessarily translate into present-day 
resilience. Moreover, there may be cumulative effects from climate 
warming and other anthropogenic impacts that combine to limit the 
species' resilience to the changes anticipated in the coming decades.
    Comment 18: One commenter stated that the birth lair essential 
feature should be defined to include natural cavities in the sea ice 
that may also be used for birth lairs. The commenter further stated 
that we should also expand the definition of the birth lair essential 
feature to recognize the importance of subnivean haulouts used as 
resting areas during winter and spring. The commenter stated that to 
reflect use of these subnivean haulouts as winter resting sites 
beginning earlier in the season, the southern boundary of critical 
habitat should be based on the position of the ice edge in March rather 
than in May.
    Response: While we acknowledge that Arctic ringed seal birth lairs 
may occasionally occur in natural cavities in the sea ice, we do not 
have data to conclude that this habitat is essential to the species' 
conservation. It has been suggested that lairs in such ice cavities may 
provide better protection from predators; however, they also provide 
less insulation, and the instability of such ice poses the risk of 
seals being crushed (McLaren 1958). As we discussed in the revised 
proposed rule, Arctic ringed seals use subnivean lairs for resting, as 
well as for whelping and nursing pups. Subnivean lairs used for resting 
have been documented as early as December or January in some areas 
(Smith et al. 1991, Williams et al. 2006). However, data on ringed seal 
use of lairs (and characteristics of those lairs) prior to when seals 
begin developing and occupying birth lairs are quite limited, and the 
conservation importance of lairs outside of the whelping and nursing 
period is less understood. In contrast, there are substantial data 
indicating the importance of sufficient snow depths for birth lairs. As 
we discussed in response to Comments 3 and 17 above, high rates of pup 
mortality due to hypothermia and predation have been reported as a 
consequence of inadequate snow cover. We therefore focused the 
subnivean lair essential feature of Arctic ringed seal critical habitat 
specifically on birth lairs.
    Comment 19: Several commenters stated we did not sufficiently 
justify the exclusion of bottom-fast from the sea ice essential 
features. Commenters noted that: (1) The bottom-fast ice environment 
fluctuates throughout the seasons and the under-ice surface is 
irregular and can facilitate ringed seal access to this ice; (2) ringed 
seals and lairs have been observed on bottom-fast ice (Martinez-Bakker 
et al. 2013); (3) bottom-fast ice near cracks in the ice could provide 
escape routes for molting seals; (4) evidence that ringed seal 
densities are lower in very shallow waters does not equate to finding 
bottom-fast ice unsuitable; and (5) the exclusion of bottom-fast ice 
does not account for the uncertainty in predicting habitat use as 
climate change continues to affect the amount, locations, and dynamics 
of sea ice. One commenter also pointed out that the aerial surveys 
conducted by Frost et al. (2004), which were referenced in the revised 
proposed rule, did not include ice shoreward of the 3-m depth contour, 
which was estimated based on bathymetric charts and not actual depth 
estimates. In addition, the commenter noted that Moulton et al. (2002a) 
reported inconsistent relationships between seal densities and water 
depths and that they suggested that depth effects were artifacts of 
their relationship with ice features that, in fact, were driving 
observed differences in density. The commenter also described their 
personal experiences with locating subnivean lairs and breathing holes 
in shallow water (e.g., lairs formed in snowdrifts formed by ice piled 
on the shoreline), including in Elson Lagoon and at Point Barrow. Two 
commenters also noted that ringed seal lairs are found along shorelines 
in Lake Saimaa (Niemi et al. 2019) and Lake Ladoga (Sipil[auml] et al. 
1996, Kunnasranta 2001) and that the seals access these lairs in very 
shallow water.
    Response: In response to public comments received regarding the sea 
ice essential features relative to bottom-fast ice and very shallow 
nearshore waters (see Comment 28), we re-evaluated the proposed 
exclusion of bottom-fast ice and how the sea ice essential features may 
be best described relative to very shallow nearshore areas. As we 
explained in the revised proposed rule, although ringed seals use 
landfast sea ice as whelping habitat, landfast ice extending seaward 
from shore may freeze to the sea bottom in very shallow waters 
(typically 1.5 to 2 m deep). In the preamble to this final rule, we 
have further explained and clarified that

[[Page 19259]]

where sea ice is bottom-fast, there would presumably be little to no 
ice-free water present that would allow the seals to swim under and 
gain access to the ice surface for the construction and maintenance of 
birth lairs, or for basking and molting, except perhaps where cracks 
form in the ice, or where the ice is not uniformly frozen to or resting 
on the seafloor. Thus, while we acknowledge that some ringed seal lairs 
may be found in bottom-fast ice, we expect use of bottom-fast ice by 
Arctic ringed seals to be low relative to use of ice in deeper waters, 
and we continue to conclude that bottom-fast ice is not a component of 
sea ice that is essential for birth lairs or for basking and molting.
    Mapping of bottom-fast sea ice extent by Dammann et al. (2019) 
(based on analysis of satellite imagery from spring 2017) indicated 
that prominent areas of bottom-fast ice in the U.S. Beaufort Sea were 
situated around certain river outlets, in particular the Colville River 
Delta, and in a number of lagoons along the coast, while in the Chukchi 
Sea, bottom-fast ice was predominantly within lagoons. The proposed 
definitions of the sea ice essential features therefore qualified that 
bottom-fast ice ``typically'' occurs in waters less than 1.5 to 2 m 
deep. This wording was to inform the reader that the depth information 
was provided as guidance regarding where bottom-fast ice might be 
present.
    We reviewed the references cited by the commenters and found that 
they did not provide any new information regarding the issue of bottom-
fast ice or very shallow ice-covered waters (i.e., less than 2 to 3 m 
in depth) relative to Arctic ringed seal birth lair sites. We note that 
a study of the breeding habitat of ringed seals in Lake Saimaa by 
Sipil[auml] (1990) reported that the water depth below birth lair 
breathing holes in the ice at the end of the breeding period (in 2 
years when the water depth in the lake was not artificially lowered) 
during the winter was 0.6 to 1.5 m. The author explained that the 
steepness of the shore slope was important to allow the seals passage 
when the water level was low. We interpret this information as 
indicating that ice was not typically bottom-fast where birth lairs 
were constructed. Moreover, in contrast to sea ice habitat used by 
Arctic ringed seals, both Saimaa and Ladoga ringed seals are confined 
to large freshwater lakes, and as a commenter noted, in Lake Saimaa, 
the only places where snow forms drifts deep enough for lairs is along 
the shorelines of islands and islets (Sipil[auml] 1990).
    Regarding the comments concerning aerial surveys conducted by Frost 
et al. (2004) and Moulton et al. (2002a), we have clarified in the 
preamble to this final rule that the lower densities in very shallow 
water reported by Frost et al. (2004) were for waters estimated to be 
between 3 and 5 m deep. However, we maintain that the results reported 
for both studies provide some evidence that ringed seal densities are 
lower in very shallow water, at least in the Alaskan Beaufort Sea 
during late May to early June. In particular, Moulton et al. (2002) 
reported that the lowest ringed seal densities were observed in waters 
less than 3 m deep in each of the 3 years that surveys were conducted 
and this was also reported for similar surveys completed in the 
subsequent 3 years (Moulton et al. 2001, Moulton et al. 2002b, Moulton 
et al. 2003). As for the effects of climate change on the sea ice 
habitat of Arctic ringed seals, we are not aware of any available 
information that would provide a basis to conclude that bottom-fast ice 
may in the future become an element of sea ice habitat that is 
essential for birth lairs or for basking and molting.
    We recognize that some Arctic ringed seals may use sea ice in very 
shallow water during the molting and/or whelping and nursing periods, 
as may have been the case for some tagged ringed seals based on the 
maps of tagged ringed seal movements in the publication by Martinez-
Bakker et al. (2013) (e.g., in Elson Lagoon). However, our focus in 
defining the sea ice features is on the habitat attributes that are 
essential to the conservation of Arctic ringed seals. As we discuss in 
the Specific Areas Containing the Essential Features section of this 
final rule, although the extent of landfast ice that becomes bottom-
fast over winter varies along the coast (e.g., Dammann et al. 2018), a 
portion of the landfast ice in very shallow waters becomes bottom-fast 
over winter, use of such ice by Arctic ringed seals is expected to be 
low relative to use of ice in waters greater than 2 to 3 m depth, and 
there is some evidence that Arctic ringed seal densities are lower in 
waters less than 3 to 5 m deep, at least in the Beaufort Sea during 
late May to early June. After considering the available information, we 
have concluded that the sea ice essential features are best described 
with respect to very shallow waters in terms of minimum water depth, 
rather than with a specific focus on bottom-fast ice. Specifically, for 
the purpose of describing the sea ice essential features in this final 
rule, we selected 3 m as the minimum water depth for the sea ice 
essential features.
    Comment 20: Two commenters stated that the proposed definition of 
sea ice essential for basking and molting is overly broad, and does not 
represent a habitat feature that is truly critical to Arctic ringed 
seals. The commenters stated that the information cited in the revised 
proposed rule on average ice concentrations used by ringed seals during 
the molting period provides insufficient evidence for determining that 
sea ice of 15 percent or more concentration is essential. One commenter 
also suggested that the proposed definition for this essential feature 
is inconsistent with the statement in the revised proposed rule that a 
number of studies have reported an apparent preference for consolidated 
stable ice (i.e., landfast ice and consolidated pack ice). In addition, 
another commenter stated that it is unclear why we limited this 
proposed essential feature to areas containing sea ice of 15 percent or 
more concentration, as it appears to have no particular significance to 
the behavior of ringed seals, and noted that in modeling exercises this 
is the typical threshold for where sea ice is considered present.
    Response: As we discussed the revised propose rule, there are 
limited data available on sea ice concentrations used by Arctic ringed 
seals for basking and molting. As noted by a commenter, we stated in 
the revised proposed rule that a number of studies have reported an 
apparent preference for consolidated stable ice, at least during the 
initial weeks of the basking period. We also explained that some of 
these studies have reported observations of Arctic ringed seals hauled 
out at low densities in unconsolidated ice. However, in identifying the 
minimum sea ice concentration that is essential for basking and 
molting, we also considered information on average ice concentrations 
used by several tagged ringed seals in the Chukchi and Bering seas 
during the basking period in June reported by Crawford et al. (2012a). 
This information, although limited, provides some evidence of ice 
concentrations used by ringed seals as annual sea ice melts and recedes 
north in this region. Our selection of 15 percent minimum ice 
concentration for this essential feature is consistent with those 
average ice concentrations when taking into account the standard errors 
(SEs) of the averages. We have clarified this reasoning in the preamble 
to this final rule. As we noted in the revised proposed rule, Arctic 
ringed seals in the Chukchi Sea have 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,

[[Page 19260]]

personal communication, 2013), which comports with our selection of 
this minimum ice concentration. The minimum sea ice concentration 
specified as essential for basking and molting reflects the habitat 
requirement that some sea ice is present during basking and molting 
that can be used as a haulout platform. We acknowledge that the sea ice 
concentration identified for this essential feature is based upon 
limited information. However, we are not aware of any additional 
information that would support refinement of the regulatory definition 
of this essential feature. Therefore, in this final rule, we continue 
to define sea ice habitat essential for basking and molting as areas 
containing ice of at least 15 percent concentration, as this is the 
level of specificity supported by the best scientific data available at 
this time.
    Comment 21: One commenter stated we should identify acoustic 
conditions that allow for effective communication for predator 
avoidance and breeding activities as an additional essential feature, 
and provided information and references concerning ringed seal 
vocalizations and the potential impacts of noise on ringed seals. The 
commenter noted that an essential feature addressing acoustic 
conditions was included in the proposed critical habitat designation 
for bearded seals because communication plays an important role in that 
species' reproduction, and suggested that this is also the case for 
ringed seals. The commenter argued that inclusion of an acoustic 
essential feature for ringed seals is justified because available 
evidence indicates that ringed seals increase their vocalizations 
during the breeding season, rely on quiet and cryptic calls for 
communication that could be easily masked by anthropogenic noise, and 
are known to display avoidance behaviors and abandon breathing holes 
and lairs in response to noise disturbance. Another commenter more 
generally questioned why we did not discuss the importance of ringed 
seal vocalizations in social behavior and of their hearing in 
navigation with respect to the potential for masking by human 
activities in our evaluation of whether special management 
considerations or protection may be required.
    Response: Although vocalizations may play a role in the 
reproductive behavior of Arctic ringed seals, in contrast to bearded 
seals, little is known about the behavioral and ecological contexts of 
vocalization or the ranges over which the seals communicate. Given the 
limited scientific understanding, we find that identification of an 
essential feature addressing acoustic conditions for effective 
communication by Arctic ringed seals is not warranted at this time. 
However, in our evaluation of sources of threats to the essential 
features of Arctic ringed seal critical habitat that may require 
special management considerations or protection, we identified acoustic 
effects among the threats to the quantity and/or quality of the 
essential features. We agree with the commenters that acoustic 
conditions that allow for effective communication and other uses of 
sound by Arctic ringed seals are important for the conservation of the 
species. We will continue to consider and address the effects of 
anthropogenic noise on Arctic ringed seals in consultations under 
section 7 of the ESA. The critical habitat designation will result in 
the additional requirement that Federal agencies evaluate any relevant 
impacts of noise on the essential features of Arctic ringed seal 
critical habitat.
    Comment 22: One commenter stated that we should identify habitat 
for seasonal movements of Arctic ringed seals (i.e., dispersal and 
migration) as an essential feature, given that tracking studies have 
confirmed that the seals make large-scale seasonal movements that track 
sea ice conditions and prey resources. The commenter stated that we 
should overlay information from ringed seal telemetry studies off 
Alaska with the critical habitat map to ensure that important migratory 
and dispersal habitat falls within the critical habitat boundaries, and 
then include such habitat as a separate essential feature.
    Response: We recognize that telemetry data for tagged Arctic ringed 
seals document seasonal movements that for many individuals appear to 
generally track changes in sea ice conditions, and as the commenter 
noted, they can make large-scale seasonal movements. However, as we 
discussed in the proposed rule, the information available on movements 
and diving behavior of Arctic ringed seals tagged in Alaska indicates 
that although the seals may forage seasonally in some particular areas, 
they also make extensive use of a diversity of habitats for foraging 
across much broader areas in the Bering, Chukchi, and Beaufort seas. 
Based on the best scientific data available, we are unable to identify 
physical or biological features that define habitat used for seasonal 
movements specifically. Therefore, we did not identify such habitat as 
an essential feature of the species' critical habitat. We note, 
however, that the late spring to early summer time period during which 
Arctic ringed seals use sea ice habitat essential for basking and 
molting coincides with when the sea ice edge retreats northward. Thus, 
there is some temporal overlap between when this essential feature is 
used by Arctic ringed seals and seasonal movements of those seals that 
follow the receding ice edge northward.
    Comment 23: Two commenters stated that the essential features and 
expansive area proposed for designation do not account for the observed 
flexibility and resilience of Arctic ringed seals regarding lair-site 
selection and fidelity, their wide-ranging movements, and their broad 
dietary preferences and behavior, due to widely variable conditions 
from year to year regardless of climate change. One commenter further 
stated that ringed seals are not habitat limited, which along with 
their demonstrated ability to adapt to a variety of conditions, 
supports the conclusion that there is no single type of habitat used by 
ringed seals that is essential to their conservation.
    Response: We are not aware of available information documenting 
observed flexibility in selection of breeding habitat relative to natal 
site fidelity. However, we acknowledge that Arctic ringed seals can 
make large-scale movements, have diverse diets, inhabit a range of sea 
ice conditions, and give birth and nurse pups in both landfast and pack 
ice. Nevertheless, as discussed elsewhere in this final rule, ringed 
seals require stable sea ice with snowdrifts of sufficient depths for 
the formation and maintenance of subnivean birth lairs, sea ice that 
provides a platform for basking and molting, and primary prey resources 
to support their energetic requirements. We continue to find, based on 
the best scientific data available, that these physical or biological 
features are essential to the conservation of the species (see Physical 
and Biological Features Essential to the Conservation of the Species 
section), and that each of these essential features may require special 
management considerations or protection as a result of impacts from 
four primary sources of threats (see Special Management Considerations 
or Protection section). We disagree with the assertion that no specific 
types of habitat should be considered essential because Arctic ringed 
seals are not ``habitat limited.'' The ESA defines critical habitat 
within the geographical area occupied by the species in terms of 
essential physical and biological features, and the associated 
regulations require us to focus on those features in the designation 
process. Those habitat features need not be impaired or limiting to be 
used to designate critical habitat. The relevant considerations are

[[Page 19261]]

whether they provide an essential function to the conservation of the 
listed species and may require special management considerations or 
protection.
Specific Areas
    Comment 24: We received a number of comments that expressed support 
for the proposed designation, and several commenters including the 
Marine Mammal Commission, Kawerak, and Maniilaq Association, indicated 
that they concurred that the proposed critical habitat contains the 
physical and biological features essential to the conservation of the 
Arctic ringed seal.
    Response: We acknowledge these comments. We note that we made some 
changes to the revised proposed designation, which are described in the 
Summary of Changes From the Revised Proposed Designation section of 
this final rule.
    Comment 25: Several commenters stated that the proposed designation 
is overbroad because it includes most of the geographical area occupied 
by Arctic ringed seals within the U.S. EEZ. The commenters asserted 
that as such, the proposed designation is inconsistent with 
congressional intent and the ESA requirement that critical habitat not 
include the entire geographical area occupied by the species. The 
commenters also referred to the Supreme Court ruling in Weyerhaeuser 
Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361, 368 (2018), in which 
the court stated that critical habitat is a subset of habitat, and 
stated that this indicates critical habitat must be designated more 
narrowly to include only those specific areas where the essential 
elements presently required for survival of the species are located.
    In addition, the commenters stated that the revised proposed rule 
did not provide scientific data demonstrating with any specificity that 
the entirety of the area proposed for designation actually contains one 
or more of the identified essential features. ADF&G suggested that in 
the revised proposed rule, the description of the essential features as 
dynamic and variable on both temporal and spatial scales, and related 
language stating that critical habitat was identified based on the 
expected occurrence of the essential features, indicates that we 
identified the specific area proposed for designation without 
supporting data identifying the location of the essential features. 
They stated that although the designation is to be done at a scale 
determined by the Secretary, the proposed designation, at a huge scale, 
stretches the bounds of what is reasonable. They referred to the 
revised designation of critical habitat for North Atlantic right whales 
as an example of a designation that is compact and targeted relative to 
the species' range, even though it expanded the designated critical 
habitat. They also pointed to the critical habitat designation for 
North Pacific right whales as an example of a designation that they 
described as similarly compact and targeted, despite an acknowledged 
lack of data. They went on to assert that we did not fully analyze the 
report they provided on Arctic ringed seal movements (Quakenbush et al. 
2019) as a primary source of spatial data. They stated that we should 
make the best use of all the available data to delineate the most 
essential areas within a species' range, and that we instead 
overcompensated for lack of data or difficulty in determining where 
essential feature are located by proposing an overly expansive 
designation. They also contended that based on statutory language, 
NMFS's goal must be to identify and designate those specific areas that 
demonstrably contain the highest value physical and biological features 
for the species. Related comments stated that establishing priority 
habitat areas for designation would be more manageable and efficient.
    Response: Under the ESA, a specific area qualifies as critical 
habitat if it was occupied by the species at the time of listing and 
contains 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. Specific areas are eligible 
for designation if they meet these criteria. Our regulations clarify 
that the geographical area occupied by the species may include those 
areas used throughout all or part of the species' life cycle, even if 
not used on a regular basis (e.g., migratory corridors, seasonal 
habitats, and habitats used periodically, but not solely by vagrant 
individuals; 50 CFR 424.02). Further, physical or biological features 
may include habitat characteristics that support ephemeral or dynamic 
habitat conditions, and thus, they need not be present throughout 
critical habitat at all times.
    We have long interpreted ``geographical area occupied'' in the 
definition of critical habitat to mean the entire range of the species 
at the time it was listed, inclusive of all areas the species uses and 
moves through seasonally (45 FR 13011, February 27, 1980). Further, in 
Arizona Cattle Grower's Assoc. v. Salazar, 606 F.3d 1160 (9th Cir. 
2010), the Ninth Circuit affirmed the interpretation of USFWS that 
``occupied'' areas means areas that the species uses with sufficient 
regularity such that it is likely to be present during any reasonable 
span of time. As we discuss in the Geographical Area Occupied by the 
Species section of this final rule, based on the best scientific data 
available, the range of the Arctic ringed seal was identified in the 
final ESA listing rule (77 FR 76706; December 28, 2012) as the Arctic 
Ocean and adjacent seas, except west of 157[deg] E long. (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. We cannot designate areas outside U.S. jurisdiction as critical 
habitat. Thus, the geographical area that was under consideration for 
this designation was limited to areas under the jurisdiction of the 
United States that Arctic ringed seals occupied at the time of listing. 
This occupied 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.
    We acknowledge that critical habitat constitutes a subset of what 
qualifies as ``habitat'' for a particular species. See Weyerhaeuser v. 
U.S. Fish and Wildlife Serv., 139 S. Ct. 361 (2018). Consistent with 
the definition of critical habitat under the ESA and based on the best 
scientific data available, the specific area designated as critical 
habitat for the Arctic ringed seal in this final rule contains the 
physical and biological features identified as essential to the 
conservation of the Arctic ringed seal and that may require special 
management considerations or protection. This critical habitat is a 
subset of the habitat occupied and used by Arctic ringed seals in U.S. 
waters, and it is also a subset of the much larger circumpolar habitat 
occupied and used by this species. Moreover, because all of the Arctic 
ringed seal's critical habitat is currently occupied by the species, 
the Supreme Court's decision in Weyerhaeuser v. U.S. Fish and Wildlife 
Serv. (139 S. Ct. 361 (2018))--which held in the context of unoccupied 
habitat that an area must logically be ``habitat'' in order to meet the 
narrower category of ``critical habitat'' as defined under the ESA--is 
not directly relevant to the designation of critical habitat for Arctic 
ringed seals. Specific areas that are occupied by a species are 
inherently ``habitat.''
    Delineation of specific areas that contain essential features is 
done at a scale determined by the Secretary (of Commerce) to be 
appropriate (50 CFR 424.12(b)(1)). In making decisions about the 
appropriate scale and boundaries for

[[Page 19262]]

the specific area we are designating as critical habitat, we 
considered, among other factors, the life history of the species and 
the scales at which data are available to inform our analysis. The 
seasonality of sea ice cover strongly influences the movements, 
foraging, and reproductive behavior of Arctic ringed seals, and the 
dynamic variations in sea ice and on-ice snow depths result in 
individuals distributing broadly and using sea ice habitats within a 
range of suitable conditions. Therefore, our delineation of critical 
habitat for the Arctic ringed seal reflects the considerations 
described elsewhere in this final rule regarding the variability in the 
spatial and temporal distributions of the essential features, in 
particular of the sea ice essential features, the overlap in timing of 
whelping and nursing with basking and molting, the widespread 
distribution of Arctic ringed seals using the essential features, and 
the spatial scale of the seals' movements in utilizing their habitat.
    In that regard, our approach is similar to the USFWS's designation 
of critical habitat for polar bears. Recognizing that sea ice is 
dynamic and highly variable on both temporal and spatial scales, and 
that polar bear use of specific areas of sea ice habitat varies daily 
and seasonally, the extent of the continental shelf within the area 
occupied by the polar bear in the United States was identified as the 
sea ice critical habitat unit containing the essential sea ice feature 
(75 FR 76086, December 7, 2010) (this designation was challenged and 
ultimately upheld by the Ninth Circuit, see Alaska Oil & Gas Ass'n v. 
Jewell, 815 F. 3d 544, 555-62 (9th Cir. 2016)). For Arctic ringed seal 
critical habitat, the essential features are dynamic, and we identified 
where one or more of these essential features occurs at a coarse scale 
with as much specificity as the best scientific data available allows 
(see Specific Areas Containing the Essential Features section).
    As stated above, under the ESA, an area qualifies as critical 
habitat if, based on the best scientific data available, it was 
occupied by the species at the time of listing and contains 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. Specific areas are eligible for designation if they meet 
these criteria. Neither the ESA's definition of critical habitat nor 
our implementing regulations at 50 CFR part 424 restrict critical 
habitat to only the most important core habitats of the species. 
Further, where, as here, one or more essential features are not static, 
and their location changes both seasonally and annually, a critical 
habitat designation must be large enough to account for such changes in 
the locations of essential features and the particular species' habitat 
requirements throughout their life history, as discussed above. 
Following thorough consideration of the peer reviewer and public 
comments and information submitted, we conclude, based on the best 
scientific data available, including the information reported by 
Quakenbush et al. (2019), that the specific area we are designating as 
critical habitat most accurately identifies where the physical and 
biological features essential to the conservation of the Arctic ringed 
seal occur. We acknowledge that this designation is much larger than 
the designations for the North Atlantic right whale and the North 
Pacific right whale. Each critical habitat designation reflects 
consideration of the best scientific data available at the time of 
designation regarding the particular species and its habitat 
characteristics and requirements.
    Comment 26: One commenter stated that designating critical habitat 
on a seasonal basis, or on a dynamic basis that reflects changing 
conditions seems at odds with the structure and mandates of the ESA, 
which specifies that critical habitat should include all areas that are 
essential to the conservation of a listed species and that federal 
agencies are under a continuing obligation to consult with NMFS if any 
action they authorize, fund, or carry out may affect critical habitat; 
thus temporal considerations should be considered during section 7 
consultations.
    Response: We agree with this comment.
    Comment 27: Several commenters stated that critical habitat should 
be designated on a seasonal basis to reflect the specific times and 
places in which the essential features are used by Arctic ringed seals 
for critical life functions. Some commenters contended that the revised 
proposed rule would ``over-designate'' critical habitat and rely on 
subsequent section 7 consultations as a means to refine what 
constitutes critical habitat, which they stated would effectively 
remove the designation from notice and comment rulemaking and shift the 
burden of designation decisions to the consultation process. BOEM 
specifically recommended that we identify continental shelf waters 
deeper than 3 m as critical habitat used in summer and fall, and 
shorefast ice in waters deeper than 3 m as critical habitat used in 
winter and spring. In addition, another commenter suggested that the 
designation incorporate a dynamic spatial-temporal element that would 
roll back the boundaries northward as sea ice recedes seasonally or 
over longer periods to respond to changes in habitat conditions due to 
climate change.
    Response: The ESA focuses on the spatial presence of the essential 
features within occupied areas, but does not mention the temporal 
presence of those features. Under the ESA's definition of critical 
habitat, if an area is occupied by a listed species and one or more 
essential features can be found in that area, even if the features are 
present only seasonally, then that area qualifies as critical habitat. 
The statute does not allow critical habitat designations to fluctuate 
seasonally, nor does it specify that critical habitat must contain any 
particular essential feature at all times. In addition, our 
implementing regulations at 50 CFR 424.12(c) specify that ephemeral 
reference points cannot be used to clarify or refine the boundaries of 
critical habitat. A dynamic boundary based on seasonal presence of the 
essential features would be inconsistent with this requirement. 
Moreover, even if seasonal designations of critical habitat were 
authorized under the ESA or the implementing regulations, such 
designations could potentially miss an important aspect of critical 
habitat: The protection afforded by designation even when the species 
may not be present, thus ensuring that Federal actions are not likely 
to adversely modify or destroy critical habitat that is important to 
support essential life history functions during particular times of the 
year.
    The size of the critical habitat designation is in no way related 
to shifting any burdens to the section 7 consultation process. Where, 
as here, one or more essential features are not static, and their 
location changes both seasonally and annually, a critical habitat 
designation must be large enough to account for such changes in the 
locations of essential features and the particular species' habitat 
requirements throughout their life history. The potential effects of a 
proposed Federal action depend on, among other factors, the specific 
timing and location of the action relative to seasonal presence of 
essential features or seasonal use of critical habitat by listed 
species for essential life history functions. It is therefore common 
practice in consultations under section 7 of the ESA to address 
spatial-temporal considerations as part of the analysis of how a 
particular Federal action would impact the conservation value of 
critical habitat, and these considerations can be effectively addressed 
for such analyses

[[Page 19263]]

involving Arctic ringed seal critical habitat. It is likely that most 
Federal actions that would occur outside the time periods when the sea 
ice essential features are present would not adversely affect those 
features. However, some actions that temporally avoid the presence of 
non-static essential features such as sea ice may still impact the 
habitat that Arctic ringed seals use or occupy. For example, the 
construction of an offshore artificial island when sea ice is not 
present could still render some Arctic ringed seal habitat unusable 
after the construction of the project. Thus, during consultation, NMFS 
considers the particular set of facts relevant to that consultation, 
such as the nature of the activities being conducted, the location of 
the action, and the spatial and temporal scale, in order to determine 
the potential effects of the activity on critical habitat and 
ultimately, whether the activity is likely to destroy or adversely 
modify critical habitat.
    Regarding BOEM's specific comment pertaining to the shoreward and 
northern boundaries of Arctic ringed seal critical habitat, also see 
our responses below to Comments 31 and 37 for further information on 
the shoreward and northern boundaries of critical habitat identified in 
this final rule.
    Comment 28: One commenter stated that because shorefast ice 
frequently freezes to thicknesses of 2 to 3 m deep and into the seabed, 
use of the 3-m isobath as the shoreward limit would be a practical 
depth to demarcate areas that seals do not use in winter and spring. 
Another commenter similarly stated that ice-covered waters shallower 
than 3 m should not be included as critical habitat because ringed 
seals cannot overwinter there due to ice freezing to the seafloor and 
poor prey availability caused by the limited amount of ice-free water, 
as indicated in a 2006 notice of an application for an incidental 
harassment authorization issued by NMFS (71 FR 9782, February 27, 
2006). The commenter also noted that NMFS recently stated in issuing 
incidental take regulations that habitat is not suitable for ringed 
seal lairs where water depth is less than 3 m (85 FR 83451, December 
22, 2020). In addition, one commenter asserted that for the sea ice 
essential features, we need to explain how nearshore areas are as 
important as habitats in deeper waters and provide evidence that 
demonstrates the nearshore area has conservation value as critical 
habitat, including those shallow water areas where the ice is 
predominantly grounded in winter, stating that only a small segment of 
the ringed seal population uses shallow nearshore ice habitat in the 
Beaufort Sea for birth lairs.
    Response: Regarding sea ice in waters less than 3 m deep, as we 
stated in the revised proposed rule and in our response to Comment 19, 
the best information currently available indicates that where bottom-
fast ice forms, it is predominantly in waters less than 1.5 to 2 m 
deep, though the extent of bottom-fast ice along the Alaska coast 
varies (see Dammann et al. 2019). Public comments we received regarding 
sea ice in shallow nearshore areas led us to re-evaluate the proposed 
descriptions of the sea ice essential features, under which certain 
waters may or may not have qualified as critical habitat depending on 
whether bottom-fast ice was present. As a result, we have concluded 
that these essential features are best described by specifying a 
minimum water depth of 3 m, which has the effect of excluding waters 
likely to contain bottom-fast ice (see our response to Comment 19).
    In the revised proposed rule, the shoreward boundary of critical 
habitat was defined as the line of MLLW, principally based on 
occurrence of the primary prey resources essential feature, rather than 
on the sea ice essential features. However, as detailed below in the 
section Summary of Changes From the Revised Proposed Designation, after 
revising the proposed definitions of the essential features, and in 
response to public comments such as these that expressed concerns about 
our proposed delineation of the boundaries of critical habitat with 
respect to the primary prey resources essential feature, we re-
evaluated the best scientific data available and the approach we used 
to identify the specific area(s) that contain this feature (see also 
our response to Comment 31). We now identify a single specific area 
that contains all of the essential features based on our delineation of 
the boundaries for the sea ice essential features. Because we have 
revised the definitions of the sea ice essential features to identify 
the minimum water depth for both features as 3 m (relative to MLLW), we 
identify the shoreward boundary of Arctic ringed seal critical habitat 
as the 3-m isobath (relative to MLLW), consistent with this minimum 
water depth. As for the comment about the relative conservation value 
of shallow nearshore areas with respect to the sea ice essential 
features, any area occupied by the species may be designated as 
critical habitat if it contains 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. We 
determined that all of the essential features occur in waters 3 m or 
more in depth, and therefore nearshore waters seaward of the 3-m 
isobath are properly designated as critical habitat.
    Comment 29: One commenter stated that critical habitat should be 
delineated as the specific areas of landfast ice extending from the 3-m 
isobath to the 20-m isobath, which the commenter suggested provides 
optimal habitat for ringed seal lairs and pupping. The commenter 
referenced the observed densities of Arctic ringed seals on landfast 
ice in the Beaufort Sea (Frost et al. 2002, Moulton et al. 2002b), in 
conjunction with studies of landfast ice extent in the western Beaufort 
Sea (Mahoney et al. 2005, Mahoney et al. 2007). However, the commenter 
stated that based on a study in the East Siberian Sea by Morris et al. 
(1999, as summarized in Mahoney et al. 2007) a transitional ice zone 
occurs between landfast and pack ice, which is more variable in depth, 
consistency, and distribution. The commenter stated that areas of 
transitional ice should be excluded from critical habitat because it is 
marginally valuable for ringed seal survival and conservation and as 
such, it is not essential to the conservation of the species nor does 
it require special management considerations or protection. The 
commenter also pointed out that although the revised proposed rule 
acknowledges little research has been conducted on Arctic ringed seals 
in offshore pack ice, the northern boundary of critical habitat was 
nonetheless defined as the outer boundary of the U.S. EEZ. The 
commenter further stated that as indicated in the revised proposed 
rule, during summer, most ringed seals spend a majority of their time 
foraging offshore near pack ice (Frost 1985), and Von Duyke et al. 
(2020) also reported that most ringed seals tagged during a recent 
study were documented north of the shelf with retreating pack ice.
    Response: With regard to sea ice for lairs and pupping, as 
discussed in more detail in the Physical and Biological Features 
Essential to the Conservation of the Species section of this final 
rule, pup production has been reported in both landfast ice and pack 
ice. Moreover, surveys conducted in the Bering and Chukchi seas have 
documented ringed seals, including observations of pups, in nearshore 
and offshore areas. We therefore determined that snow-covered sea ice 
essential for birth lairs consists of both landfast ice and dense, 
stable pack ice. We defined the seaward boundaries of critical habitat 
with respect to the sea ice

[[Page 19264]]

essential features based on the occurrence of the features themselves. 
The commenter did not provide, and we are not aware of, information on 
Arctic ringed habitat use relative specifically to what the commenter 
referred to as ``transitional ice.'' Also, regarding the commenter's 
reference to the 20-m isobath relative to landfast ice, we note that 
although the stable location of the seaward landfast ice edge in the 
Beaufort Sea has been reported to coincide with near the 20-m isobath, 
the seaward landfast ice edge in the Chukchi and northern Bering Seas 
is closer to shore and the water depth is more variable (Mahoney et al. 
2014, Jensen et al. 2020). As for ringed seal habitat use during the 
open-water period relative to pack ice, while it is thought that most 
Arctic ringed seals spend the summer in the pack ice of the northern 
Chukchi and Beaufort seas, the seals are also dispersed in ice-free 
areas of the Bering, Chukchi, and Beaufort seas. Tracking data indicate 
that ringed seals tagged in Alaska made extensive use of nearshore and 
offshore waters over the continental shelf in the U.S. Chukchi and 
Beaufort seas during the open-water period.
    Comment 30: The Bureau of Land Management (BLM) stated that we 
should develop more detailed critical habitat maps that identify 
seasonal presence/absence of each essential feature in both nearshore 
and offshore waters to provide clarity regarding where each essential 
feature is found, rather than designating critical habitat as a single 
large unit. They stated that we should otherwise better explain why the 
boundary for each essential feature is the same, how the boundary for 
each essential feature overlaps with other essential features, or why 
they have all been incorporated into a single mapped unit.
    Response: On the basis of the best scientific data available, and 
consistent with the definition of critical habitat under the ESA, we 
identified one specific area within the northern Bering, Chukchi, and 
Beaufort seas to designate as critical habitat for the Arctic ringed 
seal. The best scientific data available indicates that the specific 
area is occupied by the species and contains one or more of the 
identified essential features which may require special management 
considerations or protection. As we explained in the revised proposed 
rule, 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 makes it impracticable to separately identify specific 
areas where each of the sea ice essential features occurs. Further, 
ringed seals forage throughout the year (albeit with reduced feeding 
during molting), and their primary prey species are spatially dynamic 
due to the influences of various abiotic and biotic factors. Moreover, 
there is no requirement that we develop detailed maps depicting where 
each essential feature occurs.
    Comment 31: Several commenters, including Kawerak, recommended that 
Arctic ringed seal critical habitat include nearshore waters, river 
mouths, and inshore estuaries/lagoon systems found throughout the 
Seward Peninsula and Norton Sound, as well as Kotzebue Sound. 
Commenters stated that well-documented IK indicates that ringed seals, 
in particular juveniles, use these areas during the ice-free period 
(e.g., Kawerak 2013, Oceana and Kawerak 2014). Kawerak and another 
commenter stated that young seals use estuaries as sheltered calmer 
waters during adverse weather conditions, to escape large-bodied 
predators like killer whales, and to hone their fishing skills in the 
shallow waters during the ice-free months. Kawerak also noted that 
these estuaries have aquatic plants that young seals use as cover when 
stalking the variety of small-bodied fishes and invertebrates that 
reside or travel through these waters. In addition, the Marine Mammal 
Commission commented that they concurred with the proposed shoreward 
boundary of critical habitat, but recommended that further research be 
conducted in nearshore and inshore habitats to better assess ringed 
seal use of these areas.
    Response: We recognize that Arctic ringed seal use of river mouths 
and inshore lagoons during the open-water period has been reported and 
documented, and we reviewed and considered the references that were 
cited in these comments, along with information presented in other 
available reports and peer-reviewed publications (e.g., Nelson 1981, 
Huntington 2000, Oceana and Kawerak 2014, Gadamus et al. 2015, 
Huntington et al. 2015c, Northwest Arctic Borough 2016) regarding this 
aspect of the seals' habitat use. Regarding nearshore waters that were 
included in the revised proposed designation, in response to other 
public comments that questioned the identified boundaries of critical 
habitat with respect to the primary prey resources essential feature, 
we re-evaluated the best scientific data available and the approach we 
used to identify these boundaries to determine whether they were drawn 
appropriately. In the revised proposed rule, we preliminarily concluded 
that the seaward boundaries delineated for the sea ice essential 
features were also appropriate for defining the specific area where the 
primary prey resources essential feature occurs; but we defined the 
shoreward boundary as the line of MLLW based principally on occurrence 
of the primary prey essential feature. However, after review of this 
information, we recognize that the available data on the distributions 
of Arctic ringed seal primary prey species indicate that these prey 
resources are widely distributed across the entire geographic area 
occupied by these seals, and as such, we concluded it was not possible 
to delineate the boundaries of critical habitat based on the 
description of this feature alone. We also have no information that 
suggests any portion of the species' occupied habitat provides primary 
prey resources that differ from those found within the specific area we 
are designating as critical habitat. Given that the movements and 
habitat use of Arctic ringed seals are strongly influenced by the 
seasonality of sea ice, we determined that the best approach to 
identify the appropriate boundaries for critical habitat is to base the 
delineation on the same boundaries identified for the sea ice essential 
features. In this final rule, we therefore define the shoreward 
boundary of Arctic ringed seal critical habitat as the 3-m isobath 
(relative to MLLW), consistent with the 3-m minimum water depth 
identified for both sea ice essential features (see our response to 
Comment 19).
    In response to the comments suggesting that river mouths and 
inshore estuaries/lagoon systems be included in the designation, we 
specifically examined available information on ringed seal use of such 
areas, including the information sources identified by the commenters. 
Although ringed seal occurrence in this habitat has been documented, we 
concluded that at this time, we lack sufficient data to develop a 
description of the specific physical or biological features of this 
habitat that support the species' life history needs, and to assess how 
those features provide for the life history requirements of the species 
such that they are essential to the conservation of the Arctic ringed 
seal. We acknowledge that, as noted by the Marine Mammal Commission, 
additional research on ringed seal use of nearshore and inshore 
habitats would help to better assess ringed seal use of these areas. 
Should additional information become available indicating whether and 
what essential features occur in these habitats, we can consider 
revising critical habitat accordingly. We also note that ESA section 7 
consultation requirements

[[Page 19265]]

apply to any action that may affect Arctic ringed seals, including in 
river mouths or those shallow inshore estuaries/lagoon systems not 
identified as critical habitat, and these consultations typically 
analyze habitat-related effects to the seals such as effects to prey, 
even in the absence of a critical habitat designation.
    Comment 32: Two commenters stated that Arctic ringed seals are most 
commonly found foraging in deeper offshore waters near pack ice and 
asserted that shallow nearshore waters should be excluded from critical 
habitat because we have not demonstrated that ringed seals actively or 
substantially feed in those waters or that such waters are used to any 
significant degree, and that ringed seals are instead most abundant and 
commonly found foraging in offshore waters near pack ice. One of the 
commenters further stated that although there are some data suggesting 
that juvenile ringed seals use shallow waters to forage late in the 
summer, this is marginal habitat not essential to conservation of the 
species. In addition, BOEM recommended that the designation focus on 
areas of greatest prey abundance and suggested that to address this 
that we remove areas which do not support adequate prey resources, such 
as shallow nearshore areas that have bottom-fast ice or are subject to 
scour, and/or identify thresholds of minimum prey abundance for ringed 
seals to persist. They went on to state that many shallow nearshore 
areas (less than 3 m) are lacking in adequate prey resources because 
the benthic habitats and communities are subject to disturbance from 
bottom-fast ice, strudel scouring in spring, and frequent ice gouging 
throughout the year, which destroy benthos and prevent benthic 
communities from developing. They also noted that influxes of fresh 
water where rivers and streams empty into the ocean kill or drive off 
marine benthic organisms. In addition, BLM and another commenter stated 
that we should present a more comprehensive analysis of Arctic ringed 
seal prey resources by providing information on the ranges and 
distributions of their prey species. BLM's comments emphasized the 
Beaufort Sea, in particular, and added that we should include an 
analysis of this information relative to where prey species 
distributions overlap with the seals' habitats, and where there is 
greatest prey species abundance, including seasonally. They stated that 
the revised proposed rule gives the impression that prey species are 
distributed homogenously throughout the seals' range, although this is 
most likely not the case.
    Response: The ESA does not require that before designating an area 
as critical habitat we demonstrate that Arctic ringed seals actively or 
substantially use the area, that they use it to a significant degree, 
or that we focus on areas of greatest prey abundance. Alaska Oil & Gas 
Ass'n v. Jewell, 815 F. 3d 544, 555-56 (9th Cir. 2016) (holding the ESA 
required USFWS to identify where the features essential to the 
conservation of a species occur, and does not require evidence a 
species currently uses those features in any particular area). Rather, 
the ESA states that an area qualifies as critical habitat if, based on 
the best scientific data available, it was occupied by the species at 
the time of listing and has 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 we 
explained in the revised proposed rule, our delineation of a specific 
area that contains one or more of the physical or biological features 
essential to the conservation of the Arctic ringed seal reflects the 
dynamic nature of the essential features, in particular of the sea ice 
essential features, the overlap in timing of whelping and nursing with 
basking and molting, the widespread distribution of Arctic ringed seals 
using the essential features, and the spatial scale of the seals' 
movements in utilizing their habitat. Ringed seals forage throughout 
the year (albeit with reduced feeding during molting) and their 
movements are strongly influenced by the seasonality of sea ice. 
Satellite tracking data for Arctic ringed seals tagged in Alaska 
indicate that although individual seals may forage seasonally in some 
particular areas, they also make extensive use of a diversity of 
habitats for foraging across much broader areas, including in nearshore 
and offshore areas. The relative distribution and abundance of ringed 
seal primary prey species are spatially dynamic due to the influences 
of a combination of various abiotic (e.g., geographic and temporal 
extent of sea ice, ocean conditions) and biotic (e.g., prey 
availability, timing of spawning) factors. Our delineation of critical 
habitat with respect to the primary prey resources essential feature 
reflects the aforementioned considerations and is based on the best 
information available regarding the occurrence of Arctic ringed seal 
primary prey species, including information regarding their 
distributions and documented occurrence within the geographical area 
under consideration. The commenters did not provide any relevant 
literature or data that would support the identification of specific 
thresholds of minimum abundance for ringed seal primary prey species, 
nor of specific areas where concentrations of the primary prey species 
are found on a recurrent basis within the ringed seals' habitats in 
Alaska. Habitat selection of ringed seals with respect to prey is also 
not well understood. While we acknowledge that it is likely that ringed 
seal primary prey species are distributed unevenly, the limits of the 
available information on the distribution and abundance of these prey 
species, and more importantly, the considerations discussed above, make 
it infeasible to delineate critical habitat more finely than we 
describe in this final rule.
    Although very shallow nearshore areas are especially prone to high 
levels of disturbance to the benthos, primary prey species of Arctic 
ringed seals, such as Arctic cod, saffron cod, and rainbow smelt, occur 
in these areas. We acknowledge that existing information on Arctic 
ringed seal use of nearshore areas is limited; however, there is 
evidence that ringed seals use both nearshore and offshore habitats, in 
particular during the open-water period. As we stated previously, we 
are not required to establish some threshold level of documented use, 
but only to find that primary prey species essential to the 
conservation of Arctic ringed seals occur in the specific area we are 
designating as critical habitat. Section 4(b)(2) of the ESA requires 
that we designate critical habitat on the basis of the best scientific 
data available. Accordingly, we relied on the best information 
available to determine the specific areas that are eligible for 
designation, as described in the Specific Areas Containing the 
Essential Features section of this final rule.
    Nevertheless, as we explained above (see our response to Comment 
31), in response to public comments such as these, we re-evaluated the 
best scientific data available and the approach we used to identify the 
specific area(s) that contain the primary prey resources essential 
feature. As a result, we now identify as critical habitat the specific 
area that contains the primary prey resources in addition to the sea 
ice essential features. Because we have revised the definitions for 
both sea ice essential features to identify the minimum water depth for 
these features as 3 m (relative to MLLW) (see our response to Comment 
19), the shoreward boundary of the designation is now defined as the 3-
m isobath (relative to MLLW).

[[Page 19266]]

    Comment 33: One commenter suggested that we delineate primary prey 
resource units that identify presence/absence of each primary prey item 
to the extent possible within subsets of the larger designation. The 
commenter stated that this would be useful for future section 7 
consultations and would serve as a means to identify priority areas and 
help support the adaptive management practices necessary for Arctic 
ringed seal conservation as the Arctic continues to experience changes.
    Response: As we explained in our response to Comment 32, data 
limitations and considerations related to the dynamic nature of the 
primary prey resources essential feature make it infeasible to 
delineate critical habitat more finely than we describe in this final 
rule. Regarding the comment concerning adaptive management, while this 
is a useful strategy for conservation of listed species and their 
habitats, under the ESA we designate critical habitat through a 
regulatory process that requires us to make decisions based on the best 
scientific data available at the time of designation. If new 
information becomes available concerning the effects of environmental 
changes on Arctic ringed seal primary prey resources that indicates 
revision of critical habitat may be appropriate to effectively provide 
for the conservation of the species, we can consider using the 
authority provided under section 4(a)(3)(A)(ii) of the ESA to revise 
the designation.
    Comment 34: One commenter stated we must identify the specific prey 
species and the specific locations (spatially and temporally) where 
foraging on those prey species is essential to the conservation of the 
Arctic ringed seal and in need of special management considerations or 
protection, and that the revised proposed rule did not provide a 
sufficiently specific delineation of critical habitat with respect to 
the proposed primary prey resources essential feature. They referred to 
the preamble to our 2016 final rule that amended the regulations for 
designating critical habitat, which said the descriptions of the 
physical and biological features essential to the conservation of the 
species would maintain the specificity of the primary constituent 
elements identified in previous designations (81 FR 7414, 7426; 
February 11, 2016). They stated that under the prior regulations (which 
used the term ``primary constituent elements''), we were required to 
identify ``feeding sites'' to support the designation of critical 
habitat based on prey species.
    Response: We disagree. Neither the ESA's definition of critical 
habitat nor our implementing regulations at 50 CFR part 424 require 
that we designate critical habitat with the level of specificity 
asserted by the commenter, and this was also not required under the 
prior version of our regulations. The prior regulations listed 
``feeding sites'' among examples of what may constitute primary 
constituent elements (referred to in our current regulations as 
physical or biological features) that may be defined and described as 
essential to the conservation of the species. Rather than identify 
where Arctic ringed seals actually feed on their essential prey, under 
the ESA we identify what prey are essential to the conservation of the 
Arctic ringed seal and then identify where those prey occur within the 
geographical area occupied by the species. Based on the best scientific 
data available, we determined that the primary prey resources essential 
to the conservation of Arctic ringed seals occur throughout the 
specific area we are designating as critical habitat.
    Comment 35: One commenter asserted that we improperly relied upon 
the description of essential fish habitat (EFH) for Arctic cod and 
saffron cod in delineating proposed critical habitat. They stated that 
while the EFH features may be necessary for those fish species, the 
features of that habitat do not support the critical habitat 
designation because they are not essential to the conservation of 
Arctic ringed seals.
    Response: We considered EFH, which NMFS has described and 
identified under the Magnuson-Stevens Fishery Conservation and 
Management Act for certain life stages of Arctic cod and saffron cod, 
as a part of the best information available to inform our determination 
of where the primary prey species of Arctic ringed seals occur. We also 
considered other sources of information that support the delineation of 
specific areas with respect to the primary prey species of Arctic 
ringed seals, as discussed in the Specific Areas Containing the 
Essential Features section of this final rule.
    Comment 36: BOEM stated that, although it is clear in the preamble 
to the revised proposed rule that critical habitat for Arctic ringed 
seals may contain one or more of the essential features, we should 
clarify that this is the case in the regulatory language for the 
designation.
    Response: We find the regulatory text contained in the revised 
proposed rule to be sufficiently clear--an area qualifies as critical 
habitat if it is occupied by the species and contains one or more 
physical or biological features that are essential to the conservation 
of the species and that may require special management considerations 
or protection (16 U.S.C. 1532(5)(A)).
    Comment 37: In reference to the statement in the revised proposed 
rule that several tagged Arctic ringed seals showed foraging-type 
movements in deep waters north of the Beaufort Sea shelf, one commenter 
stated that we did not identify any evidence demonstrating what prey 
species ringed seals consume there. They stated that to conclude that 
the primary prey essential feature occurs in those waters, 
documentation would be needed on the stomach contents of ringed seals 
foraging there.
    Response: We disagree that we need to prove that ringed seals are 
consuming primary prey species in a particular area or that we would 
need data on stomach contents that do not currently exist to determine 
that waters north of the Beaufort Sea shelf contain the primary prey 
resources essential feature. Rather, in designating critical habitat 
the focus is on where features essential to the conservation of a 
species occur within the occupied habitat of a species, not where the 
species uses those features. We acknowledge that there is no 
information available on the prey species that tagged Arctic ringed 
seals were targeting north of the shelf break in the Chukchi and 
Beaufort seas. However, in determining the northern boundary with 
respect to primary prey resources, we took into consideration not only 
the information available on the foraging movements of these seals, but 
also, in particular, information indicating that the general 
distribution of Arctic cod--a ringed seal primary prey species--extends 
north of the continental shelf. In the preamble of this final rule, we 
have incorporated additional information to clarify this aspect of our 
determination. Based on the best scientific data available, we continue 
to find that the northern boundary delineated for the sea ice essential 
features is also appropriate for defining the specific area where the 
primary prey resources essential feature occurs (see Specific Areas 
Containing the Essential Features section). However, we have exercised 
our discretion under section 4(b)(2) of the ESA to exclude a particular 
area north of the Beaufort Sea shelf based on consideration of national 
security impacts (see Exclusion Based on National Security Impacts 
section).
Special Management Considerations or Protection
    Comment 38: BOEM stated that because sea ice is projected to 
continue

[[Page 19267]]

to retreat northward, we should provide data and analysis of how the 
geography of the critical habitat for Arctic ringed seals would change 
in the future with substantial sea ice loss. They also stated that we 
should highlight those areas within critical habitat that are expected 
to retain suitable sea ice conditions for Arctic ringed seals long into 
the future, as this would help emphasize the need for further 
development of geographic solutions for habitat conservation. Another 
commenter suggested that it would be helpful and relevant to include 
reference to the loss of suitable habitat for whelping projected to 
occur this century as a result of decreased snow cover (Hezel et al. 
2012).
    Response: In our evaluation of whether the essential features of 
Arctic ringed seal critical habitat may require special management 
considerations or protection, we indicated that the quantity and 
quality of these essential features, in particular sea ice, may be 
diminished by the effects of climate change. Although there will 
continue to be considerable annual variability in the rate and timing 
of the breakup and retreat of sea ice, trends are 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). Thus, 
the earlier retreat of sea ice in the spring supports including the 
northern portion of the critical habitat in particular, as it retains 
sea ice suitable for birth lairs and/or basking and molting the 
longest. As suggested by a commenter, in the Climate Change section of 
this final rule, we have added information regarding projected 
reductions in on-ice snow depths, although it does not alter our 
previous identification of climate change as a source of threats to the 
essential features of Arctic ringed seal critical habitat. As for 
BOEM's comment that we should explain how the geography of critical 
habitat may change in the future with substantial sea ice loss, the 
critical habitat boundaries will not automatically change in areal 
extent as sea ice distribution and extent diminish; they will remain 
fixed until such time as NMFS revises them based on new information.
    Comment 39: One commenter stated that climate change, driven by 
anthropogenic emissions of GHGs, poses an existential threat to the 
Arctic ringed seal, and noted that climate change impacts on the seals 
include changing temperatures, rapid loss of sea ice, altered 
precipitation regimes, ocean acidification, extreme weather events, and 
effects on key prey species. The commenter provided information and 
references regarding trends in GHG emissions, the relationship between 
GHG emissions and sea ice loss, and the impacts of climate change in 
the Arctic. In addition, another commenter stated that we should 
discuss ocean acidification and its effects on ringed seal prey. 
Several other commenters also expressed concerns over the impacts of 
climate change on the species, and one commenter, an Alaska Native 
hunter, reported their personal observations of sea ice loss and 
declines in the number of marine mammals.
    Response: We appreciate the comments and references provided by the 
commenters, which we reviewed and considered in developing the final 
critical habitat designation. As discussed in the revised proposed 
rule, we identified climate change as one of four primary sources of 
threats to the identified essential features of Arctic ringed seal 
critical habitat that may require special management considerations or 
protection. Although our evaluation does not consider an exhaustive 
list of threats that could impact the essential features, in response 
to comments, in the preamble to this final rule we have added ocean 
warming and acidification to our discussion of impacts on the essential 
features from climate change.
    Comment 40: One commenter requested that we remove the following 
statement in the revised proposed rule because it was unsupported and 
unnecessary: ``The best scientific data available do not allow us to 
identify a causal linkage between any particular single source of GHG 
emissions and identifiable effects on the physical and biological 
features essential to the conservation of the Arctic ringed seal.'' The 
commenter stated that scientific studies have documented continuing 
severe and rapid reductions in sea ice extent and thickness and 
increases in ocean acidification resulting from GHG emissions. The 
commenter further stated that GHG emissions from individual projects 
cumulatively contribute to habitat degradation and loss for the Arctic 
ringed seal, and appreciable GHG emissions from large-scale projects 
can make a measurable difference in the amount of sea ice loss.
    Response: We acknowledge that particular point sources, such as a 
single power plant, contribute incrementally to global indicators like 
atmospheric concentration of GHGs or global average temperature. In 
response to this comment, we have omitted the statement in question in 
the preamble of this final rule because it is not needed to support our 
identification of climate change as a primary source of threats to each 
of the essential features of Arctic ringed seal critical habitat.
    Comment 41: One commenter provided information concerning 
regulation of commercial crab fisheries in the Bering Sea and Aleutian 
Islands and measures taken to minimize impacts of the fishery, noting 
that not all fisheries pose the same impacts and that they believe 
commercial crab fisheries do not pose a risk to Arctic ringed seals. 
The commenter stated that with changing environmental conditions, more 
commercial densities of crabs could move north into designated critical 
habitat, but if commercial crab fisheries follow this pattern, they do 
not believe that it would have substantial impacts on ringed seals.
    Response: In determining whether the essential features of Arctic 
ringed seal critical habitat may require special management 
considerations or protection, we base our determination on whether such 
management or protection may be required, rather than whether 
management is currently in place, or whether that management is 
adequate. As we discussed in the revised proposed rule, given the 
potential changes in commercial fishing that may occur with the 
expected increasing length of the open-water season and range expansion 
of some commercially valuable species responding to climate change, we 
concluded 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.
    Comment 42: Several commenters expressed concerns over potential 
impacts of commercial fisheries on ringed seal prey resources through 
removal of biomass and/or modification of benthic habitat, in 
particular from bottom trawling activities. One commenter also 
expressed concern regarding the risk of incidental mortality of ringed 
seals if bottom trawlers are allowed further north, and they noted the 
potential for impacts on ringed seals from hook injuries due to the 
2019 arrival of a large-scale Pacific cod longline fleet to northern 
Bering Sea and Bering Strait region. Another commenter, an Alaska 
Native hunter, reported past observations of ringed seals feeding on 
herring south of the proposed critical habitat and expressed concern 
that commercial fishing activities have reduced herring biomass.
    Response: We understand the concern expressed by the commenters 
that commercial fisheries may impact Arctic ringed seal prey resources. 
Designation

[[Page 19268]]

of critical habitat does not, in and of itself, regulate or restrict 
any activities. Rather, through the section 7 consultation process, 
Federal agencies must ensure that their actions are not likely to 
destroy or adversely modify designated critical habitat. Thus, once the 
Arctic ringed seal critical habitat designation becomes effective, any 
section 7 consultations on federally managed fisheries will be required 
to address the additional requirement that Federal agencies ensure that 
their actions are not likely to adversely modify or destroy designated 
critical habitat. We note, however, that we consult on Federal actions 
and thus not every fishery is subject to section 7 consultation, as 
there are fisheries with no Federal nexus. Although we acknowledge the 
concerns regarding the risks posed to ringed seals by direct 
interactions with commercial fishing gear (e.g., hookings or 
entanglements), such impacts are considered threats to individual 
ringed seals themselves and not the habitat. To date, section 7 
consultations completed on the effects of Federal groundfish fisheries 
in the Bering Sea and Aleutian Islands Management Area on ringed seals 
have concluded that the seals are only occasionally taken in those 
fisheries, and that the fisheries are not likely to jeopardize the 
continued existence of the Arctic ringed seal.
    Comment 43: Several commenters expressed concerns over the 
potential impacts of vessel traffic, in particular icebreakers, on 
Arctic ringed seals, e.g., during the whelping period. One commenter 
requested that we expand the discussion of special management 
considerations or protection to include Arctic marine tourism, and 
stated that we should consider and discuss how marine tourism differs 
from other types of shipping traffic, as ice-reinforced vessels 
reportedly under construction may facilitate purposefully seeking out 
icy waters and areas with wildlife. In addition, several commenters 
specifically noted concerns over potential impacts from vessel 
discharges, spills of oil or other hazardous materials, and release of 
marine debris.
    Response: We agree that vessel traffic, in particular icebreaking 
activities, may affect the essential features of Arctic ringed seal 
critical habitat, and we addressed those potential effects in our 
evaluation of whether these features may require special management 
considerations or protection. As we discuss in the Special Management 
Considerations or Protection section of this final rule, in addition to 
the potential effects of icebreaking on the essential features, the 
most significant threat posed by marine shipping and transportation is 
considered to be the accidental or illegal discharge of oil or other 
toxic materials. Regarding marine tourism, in this evaluation we 
identified cruise ships as part of the maritime traffic along the 
western and northern Alaska coasts, and in the draft and final versions 
of the impact analysis reports for this designation (NMFS 2020, 2021), 
we discussed that a limited but increasing number of cruise ships bring 
tourists to waters within Arctic ringed seal critical habitat. As 
previously explained, section 7 consultation requirements apply only 
when a Federal action is involved (i.e., an action authorized, funded, 
or carried out by a Federal agency). For icebreaking or other vessel-
based activities with a Federal nexus, NMFS and the action agency would 
evaluate potential effects on a case-by-case basis.
    Comment 44: BLM recommended that we provide a more thorough oil 
spill and oil spill response analysis, specifically for the North Slope 
of Alaska, to frame the possibility of this impact more accurately with 
current information. They stated that we need to acknowledge the 
progress that has occurred since AMAP (2007) to prevent and minimize 
oil spills in the Arctic and current response mechanisms in place. They 
specifically requested that we review and incorporate appropriate 
Alaska Clean Seas policies and protocols, including response and 
training infrastructure. They also stated that we should update the 
information on the risk of oil spills, and provide additional context 
by acknowledging that the most common development of oil fields would 
most likely be near existing nearshore oil and gas infrastructure in 
the Beaufort Sea, rather than in remote areas, and that there are 
offshore producing fields there that have been operating for many years 
with no major oil spills.
    Response: We recognize that there are existing oil spill prevention 
and response mechanisms in place; however, as we explained in the 
revised proposed rule, in determining whether the essential features 
may require special management considerations or protection, we do not 
base our decisions on whether management is currently in place or 
whether such management is adequate. We are required to make a 
determination about whether the essential features may require special 
management considerations or protection either now or in the future, 
and the existence oil spill prevention and response mechanisms is 
evidence that the essential features do in fact require special 
management considerations. Our evaluation of oil and gas activities in 
the Special Management Considerations or Protection section of this 
final rule is sufficient to establish that the ``may require'' standard 
is met or exceeded with respect to the risk posed to the essential 
features of Arctic ringed seal critical habitat by these activities, 
primarily through pollution (particularly the possibility of large oil 
spills), noise, and physical alteration of the species' habitat.
Impacts of Critical Habitat Designation
    Comment 45: Two commenters stated that the timeframe used in the 
Draft Impact Analysis Report was arbitrarily truncated at 10 years, and 
thus failed to account for costs associated with the designation that 
will undoubtedly accrue beyond this timeframe. One of the commenters 
noted that USFWS considered economic impacts of designation of critical 
habitat for the polar bear over a 30-year timeframe. This commenter 
also contended that the use of a 10-year timeframe is inherently 
contradictory and arbitrary given that the listing determination for 
the Arctic ringed seal was based on ``a 100-year foreseeable future.'' 
The other commenter stated that the analysis of economic impacts should 
be revised to use a timeframe coextensive with the anticipated duration 
of the designation, citing in support of this contention a court 
decision involving the limited timeframe considered in a particular 
biological opinion (Wild Fish Conservancy v. Salazar, 628 F.3d. 513(9th 
Cir. 2010)).
    Response: As discussed in Section 2.4 of both the draft and final 
versions of the impact analysis reports for this designation, guidance 
from OMB indicates that ``if a regulation has no predetermined sunset 
provision, the agency will need to choose the endpoint of its analysis 
on the basis of a judgment about the foreseeable future'' (OMB 2011). 
Because rules designating critical habitat have no predetermined 
sunset, we determined the endpoint for our analysis based on a judgment 
regarding the foreseeable future economic effects, and in particular, 
the difficulty in making reliable forecasts of Federal activities and 
costs beyond this timeframe. The information upon which the analysis of 
impacts of the designation is based includes NMFS's record of section 7 
consultations from 2013 to 2019 on activities that may have affected 
the essential features of Arctic ringed seal critical habitat 
(relatively few relevant consultations were identified for the 3 years 
prior to when

[[Page 19269]]

the Arctic ringed seal was listed under the ESA), as well as available 
information on planned activities that may affect these essential 
features. We acknowledge that the critical habitat designation for 
Arctic ringed seals is expected to result in costs that will be 
incurred more than 10 years into the future, and although we do not 
quantify the probable economic impacts beyond this 10-year time period, 
we believe that the estimated impacts of the designation over the next 
10 years generally reflect the nature and magnitude of costs beyond 
this timeframe. This timeframe is also consistent with OMB guidance 
stating that ``[f]or most agencies, a standard time period of analysis 
is 10 to 20 years, and rarely exceeds 50 years'' (OMB 2011), and 
longstanding NMFS practice (e.g., economic analyses of critical habitat 
designations for the Central America, Mexico, and Western North Pacific 
distinct population segments (DPSs) of humpback whales, Main Hawaiian 
Islands insular false killer whales, Northwest Atlantic DPS of 
loggerhead sea turtles, Cook Inlet belugas, and smalltooth sawfish). 
Although not relevant to the timeframe used in the economic analysis, 
we note that in the listing analysis for this species, we did not 
identify a single specific time as the foreseeable future. Rather, we 
addressed the foreseeable future based on the available data for each 
respective threat, and we had sufficient information to establish that 
threats stemming from climate change were foreseeable through 
approximately the end of the 21st century (77 FR 76706, December 28, 
2012).
    Comment 46: Several commenters, including the Alaska Department of 
Natural Resources (ADNR), stated that the Draft Impact Analysis Report 
substantially underestimated the impacts of the proposed critical 
habitat designation because it primarily identified the incremental 
administrative costs associated with conducting section 7 consultations 
that include the critical habitat. The commenters stated that the 
analysis did not sufficiently account for the full range of likely 
consequences of the designation, including costs that could result 
under other Federal regulatory programs, threatened and actual 
lawsuits, delay and impediment of activities, and effects related to 
increased regulatory uncertainty. Commenters asserted that because 
these additional costs are likely to occur, can be assessed and 
calculated, and would have significant impacts on activities that occur 
on and adjacent to the North Slope, the draft report should be revised 
to include an analysis of these impacts, both quantitative and 
qualitative.
    Commenters also noted that the U.S. Army Corps of Engineers (USACE) 
can impose significantly higher mitigation costs for Clean Water Act 
(CWA) section 404 permits on projects located in critical habitat 
compared to projects located outside of critical habitat. They added 
that the CWA's National Pollution Discharge Elimination System (NPDES) 
permit program mandates special considerations and protections for 
areas designated as critical habitat. ADNR and another commenter stated 
this was also the case under the Outer Continental Shelf Lands Act. 
Additionally, a commenter noted that areas designated as critical 
habitat have informed the imposition of additional mitigation measures 
and modifications to proposed activities in authorizations issued under 
the MMPA. ADNR and another commenter described that areas designated as 
critical habitat have been expressly excluded from coverage in at least 
two Alaska-related NPDES permits. In addition, regarding section 404 
permits, ADNR described as a specific example that compensatory 
mitigation for the Point Thomson project involved significantly greater 
total acreage and therefore greater costs solely because affected 
wetlands were located in polar bear critical habitat.
    Regarding the potential for litigation, commenters stated that oil 
and gas and other activities on the North Slope and in the Chukchi and 
Beaufort seas are already frequently the subject of lawsuits intended 
to delay, impede, and prevent projects from proceeding. ADNR cited as 
examples lawsuits regarding the polar bear critical habitat designation 
(Alaska Oil and Gas Ass'n v. Jewell, Case No. 13-35919 (9th Cir. 
2016)), and the Cook Inlet beluga whale critical habitat designation. 
ADNR stated that time delays and uncertainty could add significant 
costs (perhaps millions of dollars) to projects requiring Federal 
permits. ADNR added that because of the limited time window available 
when construction may occur, depending on the project, delays could 
have cascading effects on the timing of construction, the start of 
operations, and the ability to produce oil, gas, or other resources. In 
addition, ADNR stated that the designation will devalue acquired and 
future oil and gas leases due to increased risks associated with the 
developing those leases.
    Response: As described in Section 3 of the Final Impact Analysis 
Report, the analysis of economic impacts of the critical habitat 
designation considers direct, incremental costs associated with section 
7 consultations (i.e., administrative costs of consultations and any 
project modifications requested by NMFS to avoid or minimize potential 
destruction or adverse modification of critical habitat), as well as 
the potential for indirect impacts (i.e., not related to section 7 
outcomes), such as time delays or regulatory uncertainty. This analysis 
considered all relevant incremental costs associated with the 
designation, and these costs were monetized to the fullest extent that 
reasonable estimates could be made, and were otherwise treated 
qualitatively when monetization was not possible. Section 6 of the 
Draft Impact Analysis report recognized that some potential exists for 
the designation to result in costs associated with indirect impacts. 
However, the incremental costs associated with such effects were not 
quantified in the analysis due to significant uncertainty and 
information limitations. In response to public comments, the Final 
Impact Analysis Report (see Section 6.10 of the report) provides an 
expanded discussion of the concerns expressed by the commenters 
regarding the potential for indirect incremental impacts, such as the 
potential for future third-party litigation over specific section 7 
consultations, time delays, and other sources of regulatory 
uncertainty, as we describe in more detail below. We considered both 
the quantitative and qualitative information presented in that report 
in developing the final critical habitat designation for the Arctic 
ringed seal.
    The Final Impact Analysis Report acknowledges the concern expressed 
by commenters that, under certain circumstances, Federal agencies such 
as USACE (as well as local and State agencies) may choose to manage 
areas differently after critical habitat is designated. However, we are 
not aware of plans by any agency to institute future restrictions to 
provide specific protections for Arctic ringed seal critical habitat. 
We note that in the specific NPDES general permits cited as examples by 
commenters, the critical habitat excluded from coverage reflected the 
U.S. Environmental Protection Agency's consideration of potential 
effects of permitted discharges to one particular listed species and 
its critical habitat. Not all designated critical habitat was excluded 
from coverage in these permits, and there is no basis to assume that 
the Arctic ringed seal critical habitat designated in this rule would 
be excluded. With regard to the concern related to requirements for 
authorizations that NMFS may issue under the MMPA, as discussed in 
Section 6 of this report, our review of

[[Page 19270]]

recent actions in the critical habitat area has not identified a 
circumstance in which a section 7 consultation would likely result in 
project modifications solely to avoid impacts to Arctic ringed seal 
critical habitat. Because it is not possible to predict the timing, 
frequency, or extent to which this critical habitat designation may 
trigger specific additional requirements under non-ESA regulatory 
programs, the report concludes that attempting to forecast such 
hypothetical outcomes would be speculative.
    With regard to comments concerning the potential for the critical 
habitat to be used in litigation, we note that the specific court case 
cited by ADNR as an example (Alaska Oil and Gas Ass'n v. Jewell, Case 
No. 13-35919 (9th Cir. 2016)) challenged the polar bear critical 
habitat rule itself. However, when considering the economic impacts of 
the designation, we do not consider costs of litigation associated with 
challenging the critical habitat rule. Historical precedent does exist 
for third-party lawsuits to challenge activities occurring in 
designated critical habitat. However, these lawsuits typically include 
claims regarding effects to both listed species and critical habitat, 
and may include claims under other laws, e.g., the MMPA, the National 
Environmental Policy Act, etc. Moreover, it is not possible to predict 
the nature, frequency, timing, or outcome of such lawsuits, and as 
such, attempting to do so would involve significant speculation. The 
Final Impact Analysis Report describes the concern and the potential 
for lawsuits but concludes that determining the outcomes of such third-
party litigation would be speculative.
    Regarding concerns related to time delays specifically associated 
with the need to address critical habitat in future section 7 
consultations, Federal agencies are already required to consult with 
NMFS under section 7 for actions that may affect Arctic ringed seals. 
These consultations typically analyze habitat-related effects to the 
seals such as effects to prey, even in the absence of a critical 
habitat designation. While Federal actions that may affect the 
essential features of the critical habitat will require an analysis to 
ensure that these actions are not likely to result in the destruction 
or adverse modification of the critical habitat, which will impose some 
minor incremental costs to consultations, we do not expect that this 
will require substantial additional time or resources, especially for 
new consultations (see also our response to Comment 47). Further, 
timelines for section 7 consultations are specified in statute and our 
implementing regulations and the number of listed species or critical 
habitats considered in any given consultation does not affect these 
timelines.
    Although there is potential for regulatory uncertainty, whether and 
to what extent projects or associated economic behavior may be affected 
due to regulatory uncertainty stemming from the critical habitat 
designation is significantly uncertain. The types of data that would be 
necessary to quantify costs associated with regulatory uncertainty, 
such as data linking the designation to changes in industry economic 
behavior, are unavailable. As for ADNR's concern that the designation 
will devalue oil and gas leases, we are not aware of any empirical 
evidence or studies of such effects for the areas included in the 
designation, and none were identified in these comments. Therefore, the 
Final Impact Analysis Report describes the commenters' concerns about 
potential indirect effects stemming from regulatory uncertainty, as 
well as the concern expressed by ADNR over potential devaluation of oil 
and gas leases. However, due to the significant uncertainty and 
information limitations, it concludes that attempting to forecast 
changes in economic behavior resulting from regulatory uncertainty on 
the part of industry relative to this critical habitat designation 
would be speculative.
    Comment 47: One commenter stated that the impacts associated with a 
critical habitat designation cannot be simply dismissed as mere 
additional administrative costs in the section 7 consultation context. 
They noted that section 7 consultations typically require, for example, 
the preparation of biological assessments, consultant services to 
identify potential effects of the proposed action and potential 
mitigation or conservation measures, robust engagement with the 
relevant federal agencies, and frequent litigation regarding the 
outcome. They stated that the addition of critical habitat to the 
consultation process creates additional analytical components with 
additional potential modifications to the proposed action to avoid any 
destruction or adverse modification of critical habitat, and that these 
factors increase the duration of project reviews, impose additional 
regulatory burdens, and create additional legal risks.
    Response: As we stated in our response to Comment 46, Federal 
agencies have an existing obligation to consult with NMFS to ensure 
that any action authorized, funded, or carried out by them (i.e., 
Federal action) is not likely to jeopardize the continued existence of 
the Arctic ringed seal. As discussed in Section 6 of the Final Impact 
Analysis Report, based on the best information available, the Federal 
actions projected to occur within the timeframe of the analysis that 
may trigger a section 7 consultation due to the potential to affect one 
or more of the essential features of the critical habitat also have the 
potential to affect Arctic ringed seals. Thus, we expect that none of 
the activities we identified would trigger a consultation solely on the 
basis of this critical habitat designation. Public comments did not 
provide any new information that could be used to revise this analysis. 
In addition, as discussed in Section 6 of the Final Impact Analysis 
Report and in the Economic Impacts section of this final rule, at this 
time, we do not anticipate that section 7 consultations would result in 
additional requests for project modifications to avoid or minimize 
adverse modification of Arctic ringed seal critical habitat beyond any 
modifications that may be necessary to address impacts to the seals 
(i.e., under the jeopardy standard). In particular, this is because 
section 7 analyses of the effects of proposed Federal actions on listed 
species, which are triggered by the threatened status of the Arctic 
ringed seal under the ESA, already consider habitat-related impacts to 
the seals. Although each proposed Federal action must be reviewed at 
the time of consultation based on the best scientific and commercial 
data available at that time, it is unlikely that any project 
modifications are likely to result from such consultations that would 
be attributable solely to the critical habitat designation, since any 
modifications required to avoid jeopardy for this species would likely 
be identical to measures needed to avoid adverse modification of 
critical habitat. While we recognize that Federal actions that may 
affect the essential features of Arctic ringed seal critical habitat 
will require an analysis to ensure that these actions are not likely to 
result in the destruction or adverse modification of the critical 
habitat, which will impose some minor additional costs, we do not 
expect that this will require substantial additional time or resources. 
Further, timelines for section 7 consultations are specified in statute 
and our implementing regulations, and the number of listed species or 
critical habitats considered in any given consultation does not affect 
these timelines.
    As discussed in Section 3.1 of the Final Impact Analysis Report, 
the estimates of administrative consultation

[[Page 19271]]

costs applied in the economic analysis are based on a review of 
consultation records from several field offices across the country, and 
modifications to reflect our experience with consultations in Alaska. 
These cost estimates take into consideration the anticipated level of 
effort that would be required to address potential effects on critical 
habitat in consultations, as well as the complexity of the 
consultations (e.g., formal versus informal).
    With regard to the comment on legal risks and other indirect 
impacts of the designation, see our response to Comment 46.
    Comment 48: Several commenters emphasized that oil and gas 
exploration, development, and production on the North Slope and in 
adjacent offshore areas provide very substantial economic benefits, and 
ADNR and another commenter stressed that these activities are of 
national strategic significance and provide important energy, economic 
and national security benefits. ADNR and another commenter expressed 
that Congress established, and courts have affirmed, that leasing, 
exploration, and development of these resources are a national priority 
and in the public interest. They added that the present and future 
contribution of oil and gas from the North Slope of Alaska and from 
adjacent state and Federal waters meets a substantial portion of our 
national energy needs. Further, they stated that development of 
domestic energy resources, including oil and gas located in, and 
adjacent to, Alaska, is a well-documented matter of national security 
and is consistent with the well-established mandates of Federal law.
    All of these commenters asserted that the proposed critical habitat 
designation will result in additional section 7 consultations, project 
modifications, and likely litigation, and that project delays and 
increased costs may thus result in impediment of oil and gas 
activities, less exploration, fewer opportunities to discover economic 
reserves, and therefore, less development and production of domestic 
oil and gas resources in these areas, to the detriment of local 
communities, the State of Alaska, and the United States. ADNR expressed 
similar concerns regarding potential impacts of the designation on 
development of critical minerals, citing as an example the Graphite One 
mine project north of Nome. The North Slope Borough commented that the 
development of natural resources in and adjacent to the North Slope 
largely supports the regional economy, allows the Borough to provide 
essential services and other benefits to its residents, and supports 
the municipal tax base. The Borough expressed concern that because a 
significant portion of its revenue is derived from taxes on oil and gas 
infrastructure, additional impacts to these projects as a result of the 
designation would be felt by the Borough.
    Response: As discussed in the Economic Impacts section of this 
final rule and detailed in the Final Impact Analysis Report, the total 
incremental costs associated with the critical habitat designation for 
the Arctic ringed seal within the 10-year post-designation timeframe, 
in discounted present value terms, were estimated at $714,000 
(discounted at 7 percent) to $834,000 (discounted at 3 percent). About 
83 percent of the incremental costs attributed to the critical habitat 
designation are expected to accrue from ESA section 7 consultations 
associated with oil and gas related activities in the Chukchi and 
Beaufort seas. To avoid understating the cost estimates, we assumed 
that a high projected level of oil and gas activity will occur 
annually, although such a high level of activity is unlikely to occur 
in each and every year. As detailed in the Final Impact Analysis 
Report, the costs associated with the designation of critical habitat 
for the Arctic ringed seal are expected to primarily consist of 
additional administrative costs to consider the critical habitat as 
part of future section 7 consultations, with third-party costs 
primarily borne by the oil and gas sector. Costs to the oil and gas 
industry are expected to be limited to administrative costs of adding 
Arctic ringed seal critical habitat to section 7 consultations that are 
already required to address effects to Arctic ringed seals (and 
potentially other listed species). At this time, we have no information 
to suggest incremental project modifications requests are likely to 
result from these consultations above and beyond any modification 
requests related to addressing impacts to Arctic ringed seals (i.e., 
under the jeopardy standard). Including a critical habitat analysis in 
consultations would slightly increase permitting costs for oil and gas 
sector activities, but such costs attributable to this designation are 
not anticipated to change the level of oil and gas sector activities 
within critical habitat. As discussed in Section 9.2 of the Final 
Impact Analysis Report, ESA section 7 consultations have occurred for 
numerous oil and gas projects within the area of the designation (e.g., 
regarding possible effects on endangered bowhead whales) without 
adversely affecting energy supply, distribution, or use. The same 
outcome is expected relative to critical habitat for Arctic ringed 
seals. This designation is not expected to significantly affect oil and 
gas production decisions, subsequent oil and gas supply, or the cost of 
energy production. We have therefore determined that the energy effects 
of this designation of critical habitat are unlikely to exceed the 
thresholds in E.O. 13211, and that this rulemaking is not a significant 
energy action (see Executive Order 13211, Energy Supply, Distribution, 
and Use section). Also, see our responses to Comment 46 regarding 
potential indirect impacts of the designation, and Comment 47, 
regarding section 7 consultation costs, generally.
    Comment 49: The North Slope Borough stated that we failed to 
consider impacts on municipal and village activities, such as 
construction of sea walls, repair and maintenance of roads, water 
treatment activities, and building and other infrastructure 
construction. The Borough commented that these activities will likely 
require a Federal permit or involve Federal funding, and thus will 
likely require section 7 consultation and mitigation and/or 
modifications to avoid adverse modification or destruction of the 
critical habitat. The Borough stated that the additional effort for 
consultations and implementation of mitigation measures will add 
possible delays and substantial costs to local projects such that many 
of them will no longer be affordable.
    Response: The Draft Impact Analysis Report projected the occurrence 
of Federal activities by level of consultation (formal or informal) 
over the timeframe of the analysis, including for coastal construction 
projects, as well as for activities involving ports and harbors (see 
Table 5-16 and Section 6 of this report). The commenter did not provide 
specific relevant information or examples of planned municipal or 
village activities with a Federal nexus that could be used to revise 
this analysis. As summarized in Table 5-16 of the draft and final 
versions of the impact analysis report (NMFS 2020, 2021), most of the 
forecasted consultations for these types of activities are expected to 
conclude informally (i.e., conclude with a letter of concurrence that 
the action is not likely to adversely affect the critical habitat 
rather than requiring a biological opinion). Further, it is not likely 
that section 7 consultations involving these types of activities if 
needed would result in additional requests for project modifications 
attributable to the critical habitat designation given the nature of 
these activities, their potential to affect

[[Page 19272]]

the essential features, and the existing need to consider effects on 
the seals due to the threatened status of the species (which typically 
includes consideration of habitat-associated threats). With respect to 
incremental costs of consultations, also see our response to Comment 
47.
    Comment 50: Several commenters asserted that we failed to fully 
consider or analyze the economic and other impacts of the critical 
habitat designation on Alaska Natives, the North Slope Borough, coastal 
communities in western and northern Alaska, and municipal and village 
activities in these regions. The commenters stated these impacts would 
be unreasonably and disproportionately imposed upon Alaska Natives, and 
in particular, upon residents of the North Slope. The North Slope 
Borough stated that the development of natural resources in and 
adjacent to the North Slope largely supports the regional economy, 
allows for the provision of essential services, supports the municipal 
tax base, and allows the Borough to provide other benefits to its 
residents. The Borough stressed that any impact on the development of 
these natural resources will therefore also impact the Borough and its 
residents. The Borough added that the revised proposed rule did not 
address any of the requirements of E.O. 12898 (Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations). The Borough noted that the Draft Impact Analysis Report 
briefly addressed these requirements, but disagreed with the conclusion 
in the report that no disproportionate adverse economic impacts are 
anticipated.
    Response: We understand that the potential for impacts of the 
designation is of significant concern to the commenters. As discussed 
in the Economic Analysis section of this final rule, we have considered 
and evaluated the potential economic impact of the critical habitat 
designation under section 4(b)(2) of the ESA, as identified in the 
Final Impact Analysis Report. Based on this evaluation, we have 
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 Chukchi and Beaufort seas. As 
indicated in our response to Comment 47, the costs associated with the 
designation are expected to primarily consist of additional 
administrative costs to consider the critical habitat as part of future 
section 7 consultations, with third-party costs primarily borne by the 
oil and gas sector. The designation is not expected to significantly 
affect oil and gas production decisions, subsequent oil and gas supply, 
or the cost of energy production. In addition, as detailed in Section 
9.1 of the Final Impact Analysis Report, based on the best information 
available, the critical habitat designation is expected to result in 
minimal impacts to small entities. We therefore do not expect the 
critical habitat designation to have a disproportionately high effect 
on low income or minority populations and this designation is 
consistent with the requirements of E.O. 12898. We also underscore here 
that no restrictions on subsistence hunting by Alaska Natives are 
associated with the critical habitat designation for the Arctic ringed 
seal.
    Comment 51: ADNR stated that we neglected to identify Alaska as a 
potentially affected economic sector or group in the Draft Impact 
Analysis Report. They stressed that there are substantial economic 
benefits to Alaska and its citizens from mining, oil and gas, and other 
activities on the North Slope and in the adjacent state and Federal 
waters of the Chukchi and Beaufort seas, and additionally, that Alaska 
has interest in access to and transportation in the proposed critical 
habitat areas. ADNR and ADF&G expressed concerns that the critical 
habitat designation will place disproportionate regulatory burdens and 
economic costs on Alaskans and may result in less mining, oil, gas, and 
other activities, to the detriment of Alaska.
    Response: The draft and final versions of the impact analysis 
report (NMFS 2020, 2021) analyze in detail the incremental and other 
relevant impacts of the proposed Arctic ringed seal critical habitat 
designation. Section 5.4 of these reports describes the economic and 
social activities within, and in the vicinity of, the critical habitat 
designation, including Arctic North Slope oil and gas exploration, 
development and production, mining, ports and coastal construction, 
commercial fisheries, Alaska Native subsistence, recreation and 
tourism, commercial shipping and transportation, military activities, 
and education and scientific activities. These reports considered all 
relevant economic impacts, and developed cost (and benefit) estimates 
at an appropriate scale based on the best data available. As discussed 
in the Economic Impacts section of the revised proposed rule and this 
final rule, 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. We conclude in the final rule that the 
potential economic impacts associated with the designation of critical 
habitat for the Arctic ringed seal are modest both in absolute terms 
and relative to the level of economic activity expected to occur in the 
affected areas. This conclusion has not changed from the revised 
proposed rule.
    Comment 52: Several commenters indicated that they appreciated that 
we clearly stated in the revised proposed rule that no restrictions on 
subsistence hunting are associated with the critical habitat 
designation. Still, the Marine Mammal Commission recommended that we 
discuss and highlight in the final rule and in other appropriate 
outreach materials and fora that the critical habitat designation is 
not expected to have any adverse impact on Alaska Native subsistence 
activities. The Commission commented that there is a widely held 
perception that designating critical habitat has adverse consequences 
for Alaska Natives who hunt marine mammals, but that is not the case.
    Response: As indicated by the commenters and stated in this final 
rule, although this critical habitat designation overlaps with areas 
used by Alaska Natives for subsistence, cultural, and other purposes, 
no restrictions are associated with the designation. We have emphasized 
this point in public venues, such as the public hearings on the 
proposed designation, and in our communications with the Ice Seal 
Committee, the Alaska Native organization with which we co-manage the 
subsistence use of ice-associated seals under section 119 of the MMPA. 
We have also conveyed this message in letters sent to tribes and Alaska 
Native corporations concerning the critical habitat designation. We 
agree with the Marine Mammal Commission that it is important to 
continue to highlight this information in appropriate outreach 
materials and fora.
    Comment 53: One commenter found it unclear in the discussion of 
economic aspects of the proposed critical habitat designation who would 
specifically be responsible for ``third-party'' costs of section 7 
consultations and suggested clarifying this. The commenter also noted 
that the range of estimated annual costs associated with the proposed 
critical habitat designation is very wide. The commenter stated that 
although the Draft Impact Analysis Report provided sufficient detail 
regarding why this is the case, the related text in the revised

[[Page 19273]]

proposed rule was confusing and ambiguous.
    Response: Parties involved in a section 7 consultation include 
NMFS, a Federal action agency, and in some cases, a third party 
participant. A third party having an interest in a consultation may be 
a private entity (e.g., applicant for a Federal permit), local or state 
government, or some other entity. We have clarified this in the Final 
Impact Analysis Report. The results of this analysis indicate that 
third parties bear an estimated 58 percent of the total costs of the 
critical habitat designation within the timeframe of the analysis (10 
years), the majority of which are associated with oil and gas 
activities. The cost model used a retrospective assessment of recent 
section 7 consultations and available information on planned activities 
to inform the cost estimates, including third-party costs, of future 
consultations over the next 10 years. The cost estimate values are 
discounted as required by regulatory guidance (OMB Circular A4).
Benefits of Critical Habitat Designation
    Comment 54: Several commenters, including the State of Alaska (ADNR 
and ADF&G), stated that Arctic ringed seals are already sufficiently 
protected from adverse impacts by the MMPA, CWA, Clean Air Act, Outer 
Continental Shelf Lands Act, National Environmental Policy Act, Oil 
Pollution Act of 1990; and other Federal, state, and local regulations. 
Commenters emphasized that activities such as oil and gas exploration 
and development are regulated pursuant to the MMPA to ensure that they 
have no more than a negligible impact on ringed seals, and referred to 
the record of incidental take authorizations issued for Arctic oil and 
gas activities. One commenter stated that USFWS has already determined, 
and courts have agreed, that the provisions of the MMPA provide a 
greater level of protection to marine mammals than the ESA. In 
addition, ADNR stated that the oil and gas industry has coexisted with 
bowhead whales under MMPA protections for decades, and there has been 
no attempt to designate critical habitat for this species. ADF&G and 
another commenter stated that moreover, the proposed designation is 
redundant with existing habitat protections for polar bears, 
notwithstanding differences in habitat use between the two species, as 
there is substantial overlap between the area proposed for designation 
and the area already designated for polar bears.
    Response: We recognize that certain laws and regulatory regimes 
already protect, to different degrees and for various purposes, U.S. 
waters occupied by the Arctic ringed seal, and therefore, to a certain 
extent, the essential features. However, the existing laws and 
regulations do not ensure that current and proposed Federal actions are 
not likely to adversely modify or destroy Arctic ringed seal critical 
habitat. For example, regulations under the MMPA provide specific 
protections for Arctic ringed seals but they do not specifically 
protect the essential features and conservation value of Arctic ringed 
seal critical habitat. Moreover, critical habitat must be designated 
regardless of whether other laws or measures already provide 
protection. See Natural Res. Def. Council v. U.S. Dep't of the 
Interior, 113 F.3d 1121, 1127 (9th Cir. 1997) (``Neither the Act nor 
the implementing regulations sanctions [sic] nondesignation of habitat 
when designation would be merely less beneficial to the species than 
another type of protection.'').
    Regarding the comment that the critical habitat designation is 
redundant with existing habitat protections for polar bears, we 
disagree. Arctic ringed seals may use some of the same habitat in the 
northern Bering, Chukchi, and Beaufort seas used by polar bears, but 
the critical habitat designation and listing protections for polar 
bears are established to promote the conservation and recovery of that 
species specifically. Further, polar bear critical habitat does not 
explicitly protect the physical and biological features essential to 
the conservation of the Arctic ringed seal. Section 7 consultations 
involving polar bear critical habitat therefore would not address 
impacts to Arctic ringed seals' habitat.
    Comment 55: ADF&G asserted that designating very large areas as 
critical habitat dilutes or undermines the conservation benefits it 
supplies compared with targeting designations toward areas with higher 
documented conservation value, and results in designations with little 
or no benefits to listed species. They stated that this is because the 
evaluation of whether a proposed Federal action is likely to destroy or 
adversely modify critical habitat under section 7 of the ESA is based 
on impacts to the whole of the designated critical habitat. They argued 
that as a result, when evaluating the impacts of a Federal action on a 
large critical habitat designation in a section 7 consultation, 
negative impacts to a ``genuinely critical'' area within a species' 
range are ``swamped'' by the sheer size of the designated critical 
habitat. They stated that therefore, the proposed designation for 
Arctic ringed seals would simply add a regulatory layer under section 7 
of the ESA, while providing little or no educational or other benefits. 
They added that their analysis provided to NMFS to inform the 
designation of critical habitat for listed DPSs of humpback whales 
demonstrates that designating very large areas will likely provide no 
conservation benefits to these populations while adding unnecessary 
regulatory burdens to oil and gas operations, transportation, and other 
uses. Two commenters also stated that because we do not anticipate that 
additional requests for project modifications will result specifically 
from designation of critical habitat for the Arctic ringed seal, the 
designation would provide little or no conservation benefit to the 
species beyond what is already afforded by virtue of its listing under 
the ESA.
    Response: The ESA requires us to designate critical habitat to the 
maximum extent prudent and determinable. Critical habitat within the 
geographical area occupied by the species as defined in section 3 of 
the ESA includes areas on which are found those physical or biological 
features that are essential to the conservation of the listed species 
and may require special management considerations or protection (16 
U.S.C. 1532(5)(A)). The term ``conservation'' is further defined in 
section 3 of the ESA as the use of all methods and procedures necessary 
to bring any endangered or threatened species to the point at which 
their protection under the ESA is no longer necessary (16 U.S.C. 
1532(3)). Therefore, a critical habitat designation must be determined 
based on consideration of the nature of the habitat features that 
support the life history and conservation needs of the particular 
listed species. As we discussed in the revised proposed rule and our 
response to Comment 25, Arctic ringed seals have a widespread 
distribution, their movements and habitat use are strongly influenced 
by the seasonality of sea ice cover, and they can range widely. 
Moreover, the habitat features they rely upon, in particular the sea 
ice essential features, are dynamic and variable on both spatial and 
temporal scales. As such, we identified where the essential features 
occur at a coarse scale, because this is as much specificity as the 
best scientific data available allow.
    Our critical habitat determination for the Arctic ringed seal 
reflects these factors, and our analysis is appropriate and sufficient 
to designate critical habitat as defined by the ESA. Although we 
reviewed the analysis ADF&G provided to NMFS to inform the

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designation of critical habitat for listed DPSs of humpback whales, as 
we discussed in detail in the preamble to the final rule for that 
designation (75 FR 21082, April 21, 2021), the ESA, implementing 
regulations at 50 CFR 424.12, and case law guide us in our evaluation 
of areas that meet the definition of critical habitat, and none of 
these sources provide support for the analytical approach advocated by 
the commenter.
    We also disagree with the assumption that the conservation benefits 
of critical habitat are strictly limited to any changes to Federal 
actions that are made to avoid destruction or adverse modification of 
critical habitat. Once designated, critical habitat provides specific 
notice to Federal agencies and the public of the geographic areas and 
physical and biological features essential to the conservation of the 
species, as well as information about the types of activities that may 
reduce the conservation value of that habitat. Thus, designation of 
critical habitat can inform Federal agencies of the habitat needs of 
the species, which may facilitate using their authorities to support 
the conservation of the species pursuant to section 7(a)(1) of the ESA, 
including to design proposed projects in ways that avoid, minimize, 
and/or mitigate adverse effects to critical habitat from the outset. As 
discussed in the Benefits of Designation section of this final rule and 
in more detail in the Final Impact Analysis report, in addition, other 
benefits are recognized, such as public awareness of the status of the 
species and its habitat needs, which can stimulate research, as well as 
outreach and education activities.
    Comment 56: One commenter expressed concern that because we 
indicated that the critical habitat designation is not likely to result 
in additional requests for project modifications, we have made a 
preemptive determination that no changes to projects will be necessary 
in any future section 7 consultation to avoid adverse modification or 
destruction of the critical habitat. The commenter stated that this 
also conveys the impression that NMFS will not meaningfully evaluate 
the effects of proposed Federal action on the critical habitat in 
future consultations. The commenter added that given the way that NMFS 
conducts consultations on a case-by-case basis with an extremely 
restrictive definition of cumulative effects, and that there have been 
very few consultations in which NMFS has issued an adverse modification 
finding, it is unlikely that the designation will provide additional 
protection to the ecosystem upon which Arctic ringed seals depend.
    Response: We disagree with these comments. We are making no 
preemptive determinations about future section 7 consultations in this 
critical habitat designation. While we cannot predict the outcome of 
future consultations with certainty, on the basis of the best 
scientific and commercial data available, we have not identified a 
circumstance in which this critical habitat designation would be likely 
to result in additional requests for project modifications in section 7 
consultations. This does not mean that Federal actions will not undergo 
meaningful and rigorous review through the section 7 consultation 
process or that project modifications specifically designed to avoid 
impacts to critical habitat could never occur. Rather, it means only 
that we have no basis to conclude such modifications are likely to 
occur and that therefore incremental impacts of this critical habitat 
designation should be forecasted in our impacts analysis. Based on the 
best information available regarding potential future Federal actions, 
and given the high level of existing baseline protections for the seals 
under the MMPA and due to their listing under the ESA, project 
modifications made to lessen impacts to ringed seals or to avoid 
jeopardy would likely encompass measures needed to reduce impacts to 
(and potentially avoid adverse modification of) critical habitat. That 
is, while section 7 consultations may result in project modifications, 
such modifications would likely be necessary to protect ringed seals in 
addition to protecting the essential features on which the species 
relies.
    In addition, as we explained in our response to Comment 55, the 
benefits of critical habitat designation cannot simply be measured by 
the outcome of section 7 consultations, as there are other benefits of 
critical habitat that extend beyond the direct benefits through section 
7 consultations. Regarding consideration of cumulative effects, in 
formulating our biological opinion as to whether or not a particular 
proposed Federal action is likely to jeopardize the continued existence 
of listed species or result in the destruction or adverse modification 
of critical habitat, our regulations at 50 CFR 424.14 require that we 
assess the status of the species and the critical habitat (including 
threats and trends), the environmental baseline of the action area, and 
cumulative effects, which in this context are defined to be the effects 
of any unrelated future non-Federal activities that are reasonably 
certain to occur within the action area. The summary of the status of 
the critical habitat considers the historical and past impacts of 
activities across time and space. The effects of any particular action 
are thus evaluated in the context of this assessment, which 
incorporates the effects of all current and previous actions. This 
avoids situations where each individual action is viewed as causing 
only relatively minor adverse effects but, over time, the aggregated 
effects of these actions would erode the conservation value of the 
critical habitat (81 FR 7214, February 11, 2016; 84 FR 44976, August 
27, 2019).
    Comment 57: A number of commenters stated that critical habitat is 
important to supporting the conservation of the Arctic ringed seals. 
Some commenters noted the greater protective standard afforded to 
critical habitat under section 7 of the ESA will help address threats 
associated with activities such as oil and gas development, which can 
help increase the species' resilience to climate change. Some 
commenters also stated that critical habitat provides important public 
outreach and education opportunities that enhance conservation, 
including furthering awareness of the impacts of climate change, the 
plight of listed species, and the conservation value of critical 
habitat areas. In addition, some commenters suggested that benefits 
resulting from the designation could extend to other species that rely 
on the habitat, such as polar bears and bearded seals.
    Response: We agree with these comments.
    Comment 58: One commenter stated that the proposed designation 
would provide no meaningful public education benefits because Alaska 
Native communities and regulated industries that undertake activities 
within the potentially designated areas are already fully familiar with 
the species and have implemented protective measures pursuant to the 
MMPA for decades, and these areas are otherwise largely devoid of human 
activity. Another commenter also questioned how non-regulatory benefits 
discussed in the revised proposed rule, such as enhanced conservation 
or indirect benefits to subsistence users, would actually materialize, 
and stated that the overlap of critical habitat and its protections for 
Arctic ringed seals, bearded seals, and polar bears seems purely 
redundant and without the benefit of any additional protection.
    Response: As discussed in the Benefits of Designation section of 
this final rule, and in more detail in the Final Impact Analysis 
Report, we

[[Page 19275]]

conclude that designation of critical habitat for Arctic ringed seals 
can have a number of indirect benefits. We recognize that Alaska Native 
subsistence hunting communities adjacent to the Beaufort, Chukchi, and 
northern Bering seas are very familiar with the species and its 
habitat, as are certain other entities operating within Arctic ringed 
seal critical habitat. Still, it is our experience that after critical 
habitat has been designated for listed species, increased awareness of 
the habitat needs of listed species on the part of the public as well 
as planners, government entities, and others, has promoted the 
conservation of the species. For example, the designation provides 
specific notice of the habitat features essential to the conservation 
of Arctic ringed seals, which can facilitate the design of proposed 
projects by Federal agencies in ways that minimize or avoid effects to 
critical habitat. However, we also note that the ESA requires 
designation of critical habitat for listed species to the maximum 
extent prudent and determinable, regardless of protections afforded by 
other environmental laws or increased public awareness of the habitat 
needs of listed species associated with critical habitat designations.
Comments Concerning Exclusions
    Comment 59: Several commenters expressed opposition to the proposed 
exclusion of an area north of the Beaufort Sea shelf from critical 
habitat based on national security impacts and requested that we reduce 
or better justify this exclusion. The commenters stated that we did not 
make clear how the Navy's activities would be disrupted by critical 
habitat in ways that could negatively affect national security. A 
couple commenters stated that the large size of the exclusion and the 
limited description of the Navy's activities gives the impression that 
those activities may not be consistent with our description of them as 
localized or small in scale. One commenter also stated that in in 
weighing the national security impacts against conservation benefits of 
potential designation we relied on the relative lack of data, while 
downplaying that the excluded area includes about 41 percent of the 
habitat north of the Beaufort Sea shelf. In addition, a couple 
commenters stated that we failed to discuss that as sea ice diminishes, 
the area proposed for exclusion will become an increasingly greater 
portion of usable habitat for Arctic ringed seals. One commenter also 
stated that we should address whether and to what extent the Navy's 
experience with North Atlantic right whale critical habitat is 
relevant. Additionally, one commenter requested that, at a minimum, 
NMFS commit to collecting the data needed to fully analyze the impacts 
the exclusion will have on Arctic ringed seals and revisiting our 
determination regarding the requested exclusion at a later date.
    Response: As we explained in the revised proposed rule, to weigh 
the national security impacts against conservation benefits of a 
potential critical habitat designation, we considered the size of the 
requested exclusion and the amount of overlap with the specific area 
meeting the definition of critical habitat for the Arctic ringed seal; 
the relative conservation value for Arctic ringed seals of the area 
requested for exclusion; the likelihood that the Navy's activities 
would trigger section 7 consultation; the likelihood that Navy 
activities would need to be modified to avoid adverse modification or 
destruction of critical habitat; and the likelihood that other Federal 
actions may occur that would no longer be subject to section 7 
consultation over impacts to critical habitat if the particular area 
were excluded from the designation.
    In developing this final rule, we followed up with the Navy 
regarding the location of the area it requested be excluded from the 
critical habitat designation. The Navy clarified that the spatial data 
it previously provided to NMFS to map the requested exclusion 
inadvertently contained outdated information that did not reflect the 
full southern extent of the particular area they intended to request be 
excluded from the designation, which includes waters about 50 nm south 
of the southern boundary of the proposed exclusion area east of 
150[deg] W longitude. In addition, the Navy requested that the western 
boundary of the proposed exclusion be extended one degree west to 
account for Office of Naval Research activities within this area. We 
therefore evaluated whether there was a reasonably specific 
justification indicating that designating the area requested for 
exclusion as critical habitat, with revision of the southern and 
western boundaries of the proposed exclusion, would have a probable 
incremental impact on national security.
    In the Navy's written communications in support of their request 
for exclusion of this particular area, they pointed to the national 
security implications of the trend toward the Arctic Ocean becoming 
increasingly accessible and navigable, and stated that they are 
planning to address future Arctic region security concerns through 
implementation of the Navy's 2019 Strategic Outlook for the Arctic, and 
as described in its subsequent Strategic Blueprint for the Arctic 
released in 2021. As we discussed in the revised proposed rule, the 
Navy indicated that it currently conducts training and testing 
exercises on and below the sea ice within the area requested for 
exclusion (which the Navy refers to as Ice Exercises (ICEXs)) that 
support the Navy's national security mission. The Navy explained that 
due to the need for stable ice, flights are conducted over the area 
requested for exclusion to find a prospective location for a given ICEX 
camp, and then on-ice surveys are performed to determine the final 
location immediately prior to buildup of the camp (for additional 
details, see National Security Impacts section). The Navy explained 
that, given the variable nature of sea ice suitable to support the 
establishment of ice camps, the Navy's ICEX program has routinely 
required flexibility for location of the area within which an ice camp 
may be established. The Navy further stated that the Navy Special 
Warfare Command (NSWC) units conduct training activities in the same 
geographic region, and although current training is outside of the 
proposed critical habitat, as NSWC training is expanding, the Navy has 
concerns that the designation could affect its ability to conduct 
activities in certain locations. 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, most of which operate 
autonomously for periods of days to months under the ice, and the use 
of icebreaking ships to deploy and retrieve these sources, and 
expressed concern that the designation could impact the ability to 
deploy and retrieve equipment, or to utilize acoustic sources in the 
manner necessary to fulfill research objectives. The Navy indicated 
that additional training and testing activities are expected in the 
Arctic region, which may occur during or independent of an ICEX. The 
Navy stated that such activities can include the surfacing of a 
submarine through the ice, the set-up of expeditionary tent 
encampments, creation of holes in the ice to deploy equipment, and the 
establishment of an expeditionary runway. These activities are also 
likely to include vessel movements, icebreaking, and transport of 
logistics by air and sea in support of future military readiness 
activities. Testing activities may include air platform/vehicle tests, 
missile testing, gunnery testing, and anti-submarine warfare tracking 
testing.
    In response to the concerns expressed by commenters we followed up 
with the Navy and requested additional

[[Page 19276]]

information regarding the size of the area the Navy requested be 
excluded and how the Navy's activities would be impacted by the 
critical habitat designation. As discussed in the Exclusion Based on 
National Security Impacts section of this final rule, the Navy provided 
further details on the specific criteria it requires to conduct ICEX 
activities and the ways in which its training activities could affect 
the sea ice essential features in the future, possibly resulting in 
requests for project modifications. The Navy also reiterated that if 
any activities were curtailed or modified to avoid impacts to critical 
habitat, it could not relocate those activities to another suitable 
location outside critical habitat. In addition, with regard to Office 
of Naval Research activities, the Navy explained that these research 
activities include the deployment of moored acoustic sources, which may 
involve the use of an icebreaking vessel for the deployment or recovery 
of equipment. The Navy stated that because locations to deploy and 
recover equipment are pre-selected and there is little flexibility, 
there is similarly little to no flexibility in conducting icebreaking. 
The Navy discussed that for this reason, if NMFS required modifications 
to these research activities in a future section 7 consultation to 
avoid impacts to the critical habitat--such as seasonal or spatial 
avoidance areas or not breaking ice which has certain conditions--it 
would have significant impact on these activities. The Navy stated that 
understanding changing Arctic conditions is critical for maintaining 
U.S. naval effectiveness and ensuring national security capabilities.
    We recognize that, as discussed in the revised proposed rule, data 
currently available on Arctic ringed seal use of the area requested for 
exclusion (particularly for the northernmost portion) are limited. 
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. Nevertheless, we must make a 
determination regarding the requested exclusion based on the best 
scientific data available. We disagree with the comment suggesting that 
we downplayed the size of the requested exclusion area, as we provided 
clear information regarding the location and size of this particular 
area in the revised proposed rule and fully considered this information 
in weighing conservation benefits of potential designation against 
national security impacts. In addition, in this final rule, we have 
updated the information regarding the size of the revised exclusion 
area (see above), which now includes about 60 percent of the habitat 
north of the Beaufort Sea shelf. Although we recognize that as sea ice 
diminishes the excluded area will become an increasingly greater 
portion of usable habitat for Arctic ringed seals, and we considered 
this in our assessment of the benefit of designating this area as 
critical habitat (and have clarified this in the Exclusion Based on 
National Security Impacts section), commenters did not provide, and we 
are not aware of, any new information that would further inform our 
assessment. Because the requested exclusion comprises a deep area of 
marine habitat north of the continental shelf, few if any other Federal 
actions are expected to occur there that would no longer be subject to 
ESA section 7 consultations if the area were excluded from designation. 
The Navy and all other Federal agencies have an existing obligation to 
consult with NMFS under section 7 of the ESA to ensure that Federal 
actions are not likely to jeopardize the continued existing of the 
Arctic ringed seal.
    We continue to find that the Navy has provided a reasonably 
specific justification to support the requested exclusion (with 
revision of the southern and western boundaries). Consistent with our 
Section 4(b)(2) Policy (81 FR 7226, February 11, 2016), we gave great 
weight to the Navy's concerns in analyzing the benefits of exclusion. 
Given the Navy's specific concern regarding potential impacts of the 
critical habitat designation on its military readiness activities that 
occur within the area requested for exclusion, we continue to find 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. Though we have not identified any 
specific circumstances in which this critical habitat designation would 
be likely to result in requests for project modifications, we 
acknowledge such modification requests could occur in the future and 
defer to the Navy's assessment that any possibility of modifications to 
its activities in this particular area could have adverse impacts on 
activities of great importance to national security. Regarding the 
comment requesting that we address the extent to which the Navy's 
experience with North Atlantic right whale critical habitat (which we 
noted in the revised proposed rule) is relevant in the context of the 
Arctic ringed seal critical habitat designation, although we considered 
all of the information provided by the Navy in support of its exclusion 
request, this was not a significant aspect of our evaluation of the 
Navy's request. We independently consider all requests for national 
security exclusions under 4(b)(2) based on the specifics of the 
particular area being proposed for exclusion and the importance of that 
area to the conservation of the relevant listed species.
    Failure to designate the excluded 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 critical habitat, and 
importantly, because Federal actions in this area--which are expected 
to be few aside from the Navy's--are still be subject to the 
requirements of section 7(a)(2) of the ESA to assess threats to Arctic 
ringed seals (including habitat related threats). We will continue to 
work with the Navy through the section 7 consultation process to 
minimize the impacts of the Navy's testing and training activities on 
Arctic ringed seals. Should additional information become available 
that indicates revision of the designation may be warranted, we may 
consider revising the designation accordingly. However, we cannot 
commit to collecting additional data and revisiting our determination 
regarding the exclusion request at a later date, as we cannot predict 
when such information may become available. Further, although we agree 
generally that additional research and monitoring are needed to fill in 
knowledge gaps, as well as to continue to monitor the status of the 
species, the ESA requires us to designate critical habitat based on the 
best data available, and we have done so in this final rule.
    Comment 60: The Marine Mammal Commission stated that it was unclear 
whether we determined that the area under consideration for exclusion 
is not subject to ESA section 4(a)(3)(B)(i) because it is not owned, 
controlled, or designated for use by the Navy, or for some other 
reason. They recommended that we clarify whether an INRMP or similar 
plan is in place that addresses potential impacts on ringed seals or 
other ESA-listed species in the area proposed to be excluded.
    Response: We proposed to exclude the particular area north of the 
Beaufort Sea shelf on the basis of national security impacts and did 
not rely on a determination that the area was ineligible for 
designation under section 4(a)(3)(B)(i) of the ESA, which provides that 
certain areas cannot meet the definition of ``critical habitat'' if 
they are

[[Page 19277]]

covered by a relevant INRMP that has been determined in writing to 
provide a benefit to the species (16 U.S.C. 1533(a)(3)(B)(i)). Thus, 
the status of an INRMP is not relevant to this exclusion determination.
    Comment 61: A group of oil and gas trade associations stated that 
all critical habitat proposed for designation should be excluded, or 
alternatively, at least all areas in which human activities occur, or 
will foreseeably occur, should be excluded from designation because of 
the importance to the Alaska economy and national energy needs of oil 
and gas exploration and development, and the strong potential for the 
designation to impose unnecessary costs and litigation risks on the oil 
and gas industry, Alaska Native communities, and state and local 
governments. They asserted that the economic impacts of designation 
substantially outweigh any very marginal benefits of designation, and 
stated that: (1) Oil and gas activities, as well as Alaska Native 
subsistence harvest of ringed seals, are not expected to threaten the 
species or its habitat in the foreseeable future, as evidenced in the 
final rule listing the Arctic ringed seal as threatened; (2) oil and 
gas activities, as well as other activities, are regulated pursuant to 
the MMPA and other Federal and state laws to ensure that they have no 
more than a negligible impact on ringed seals; and (3) the designation 
will result in no benefits to the species under section 7 of the ESA in 
that there are no measures or protections necessary for conservation of 
ringed seals that are not already imposed by the MMPA, and NMFS does 
not anticipate that the designation will result in additional project 
modifications.
    Response: Section 4(b)(2) of the ESA provides that the Secretary 
shall designate critical habitat on the basis of the best scientific 
data available after taking into consideration the economic impact, 
impact on national security, and any other relevant impacts of 
specifying any particular area as critical habitat. The economic 
analysis included in the Final Impact Analysis Report was developed to 
address the potential economic impacts of the critical habitat 
designation. As discussed in the Economic Impacts section of this final 
rule and detailed in the Final Impact Analysis Report, the total 
incremental costs associated with the critical habitat designation for 
the Arctic ringed seal within the 10-year post-designation timeframe, 
in discounted present value terms, were estimated at $714,000 
(discounted at 7 percent) to $834,000 (discounted at 3 percent). About 
83 percent of the incremental costs attributed to the critical habitat 
designation are expected to accrue from ESA section 7 consultations 
associated with oil and gas related activities in the Chukchi and 
Beaufort seas. To avoid understating the cost estimates, we assumed 
that a high projected level of oil and gas activity will occur 
annually, although such a high level of activity is unlikely to occur 
in each and every year. After thoroughly considering the available 
information, we have concluded that the potential economic impacts 
associated with this designation are modest both in absolute terms and 
relative to the level of economic activity expected to occur in the 
affected area. This has not changed from the proposed rule.
    We disagree with the characterization of the benefits of the 
critical habitat designation as ``very marginal.'' The designation of 
critical habitat and identification of essential features will provide 
substantive benefits to the conservation of Arctic ringed seals. At a 
minimum, the designation ensures that Federal agencies, through the 
consultation process under section 7 of the ESA, consider the impacts 
of their projects and activities on Arctic ringed seal critical 
habitat, and will focus such future consultations on the essential 
features of the critical habitat. Designation of critical habitat thus 
provides clarity and consistency to Federal action agencies regarding 
specific areas and habitat features that should be considered and 
addressed during these consultations. Designation of critical habitat 
can also inform Federal agencies of the habitat needs of the species, 
which may facilitate using their authorities to support the 
conservation of the species pursuant to section 7(a)(1) of the ESA, 
including to design proposed projects in ways that avoid, minimize, 
and/or mitigate adverse effects to critical habitat. Other benefits of 
the designation include enhanced public awareness of the habitat needs 
of the species, which can help focus conservation efforts (for 
additional details, see Benefits of Designation section, as well as the 
Final Impact Analysis Report). We have therefore not exercised the 
discretion delegated to us by the Secretary to conduct an exclusion 
analysis to further consider and weigh the benefits of designation and 
exclusion of any particular area based on economic impacts.
    Comment 62: A group of oil and gas trade associations stated that 
we should clarify that the proposed regulatory language indicating that 
permanent manmade structures such as boat ramps, docks, and pilings 
that were in existence by the effective date of the rule are not part 
of critical habitat also applies to existing infrastructure associated 
with North Slope and adjacent Outer Continental Shelf (OCS) oil and gas 
activities. In addition, they stated that we should exclude from 
designation the infrastructure, ice roads, trails, pads, and 
surrounding waters necessary to maintain safe access to the facilities 
identified and described in their comments, including Milne Point Unit 
F-Pad, Oliktok Point and Spy Island Drill Site, Oooguruk Drill Site, 
and Northstar Unit Seal Island). They stated that the benefits of 
excluding these areas from designation far outweigh any benefits of 
designation, and are justified because they are fundamental to 
continuity and safety of oil and gas operations and: (1) The identified 
areas are not essential to the conservation of ringed seals, nor do 
they require special management considerations or protection; (2) the 
areas are extremely small relative to the amount of habitat available 
to ringed seals; and (3) these types of facilities have been 
constructed and maintained for decades without any indication that 
these exclusions would impede recovery or have any population level 
impacts on ringed seals.
    Response: With regard to the proposed regulatory language 
indicating that permanent manmade structures in existence are not a 
part of the designation, we find that this language provides sufficient 
clarity, as it applies to any such permanent manmade structures, 
including those in existence that are associated with oil and gas 
activities, and this final rule includes that same language. While 
activities such as dredging and screeding occur in association with the 
areas requested for exclusion, this does not necessarily indicate that 
there are likely to be significant additional costs or other indirect 
impacts from including these areas in the designation. Where there is a 
Federal nexus for an activity occurring in these areas, we expect that 
there will in most, if not all cases, be an existing need to address 
the impacts of these activities on Arctic ringed seals themselves. In 
other words, for activities such as ice road construction and 
maintenance, the requirement to consult under section 7 of the ESA 
would be triggered even in the absence of Arctic ringed seal critical 
habitat. These consultations typically analyze habitat-related effects 
to the seals, even in the absence of a critical habitat designation. 
While Federal actions that may affect the essential features of Arctic 
ringed seal critical habitat will require an

[[Page 19278]]

analysis to ensure that these actions are not likely to result in the 
destruction or adverse modification of the critical habitat, we do not 
expect that this will require substantial additional time or resources, 
especially for new consultations. We have therefore not exercised the 
discretion delegated to us by the Secretary to conduct an exclusion 
analysis to further consider and weigh the benefits of designation and 
exclusion of the identified areas based on economic impacts. Further, 
under the ESA, the relevant question is whether the identified areas 
contain physical or biological features essential to the conservation 
of Arctic ringed seals, not whether use of these areas is essential to 
conservation of ringed seals or whether these areas (as opposed to the 
features within them) require special protection. Because we find that 
one or more essential features occur in all parts of the specific area 
designated as critical habitat, to the extent these comments are 
suggesting the identified areas do not meet the definition of critical 
habitat, we disagree. We note that as we explained previously, the 
shoreward boundary of the critical habitat designation is now 
identified as the 3-m isobath (relative to MLLW). Thus a portion of the 
areas the commenter requested be excluded are not included in the final 
designation.
    Comment 63: The North Slope Borough stated that we should exclude 
from designation 10-mile buffer zones around all North Slope villages 
and all lands conveyed to the North Slope Borough or Alaska Native 
corporations in order to prevent detrimental economic impacts and 
possible delays in municipal-type projects or other developments that 
require Federal approval or rely on Federal funding. They indicated 
that such activities include, but are not limited to, erosion 
protection, road construction, water treatment activities, port 
infrastructure, and municipal expansion. They stated that although 
these activities may not rise to the level of adverse modification, 
Borough communities and residents should not be forced to bear the 
additional section 7 consultation costs or possible delays in 
development of projects associated with maintaining basic services. In 
addition, they stated that we should exclude from designation similar 
areas around locations that are currently being developed for oil and 
gas, as a significant portion of the Borough's revenue is derived from 
taxes on oil and gas infrastructure. They also commented that without 
the collaboration of seal hunters and Alaska Native communities who 
live in those areas, NMFS would be unable to adequately monitor Arctic 
ringed seals. They suggested that designating critical habitat adjacent 
to coastal villages could alienate residents of subsistence 
communities, and thus there is a real collaborative benefit to such 
exclusions. The Ice Seal Committee similarly stated that we must 
exclude from designation aquatic areas around villages, Alaska Native 
corporation lands, and other lands where development and 
infrastructure-related activities are occurring in consideration of the 
harmful effects of the designation on Alaska Native communities. 
Additionally, ADF&G requested that a distance of 20 miles around 
communities and the Beaufort Sea coast be excluded from designation to 
avoid unnecessary disproportionate regulatory burdens to those areas 
that are not balanced by the limited conservation benefits provided to 
Arctic ringed seals.
    Response: While we recognize that the proximity of a number of 
coastal communities and certain other developed sites to Arctic ringed 
seal critical habitat raises concerns about potential impacts on human 
activities, our final economic analysis did not indicate any 
disproportionate or significant economic impacts are likely to result 
from the designation. The critical habitat designation includes no 
regulatory restrictions on human activities, and where no Federal 
authorization, permit, or funding is involved, activities are not 
subject to section 7 consultation. For the types of actions we expect 
to occur in coastal villages or on Alaska Native lands that have a 
Federal nexus, based on our experience consulting on such activities, 
we do not expect that the additional need to consult on the critical 
habitat would result in any additional or novel project modifications 
beyond those that result from consultations that are already required 
due to the threatened status of the species and the MMPA (see our 
response to Comment 49). We have therefore not exercised the discretion 
delegated to us by the Secretary to conduct an exclusion analysis to 
further consider and weigh the benefits of designation and exclusion of 
buffers around the requested areas based on economic or any other 
relevant impacts. In addition, as we explained previously, the 
shoreward boundary of the critical habitat designation is now 
identified as the 3-m isobath (relative to MLLW), rather than as the 
line of MLLW identified in the revised proposed rule. Thus, waters 
adjacent to coastal villages within the 10-mile and 20-mile distances 
requested for exclusion by the commenters overlap to lesser extent with 
the final designation.
    With regard to the comment concerning the effect of the critical 
habitat designation on NMFS's working relationships with seal hunters 
and Alaska Native communities, we recognize that the Alaska Natives 
make important contributions to the conservation and management of 
Arctic ringed seals. NMFS works closely with the North Slope Borough 
and other partners to implement co-management and conserve marine 
mammals. We understand that a number of parties have concerns about ESA 
listings and critical habitat designations, but we are optimistic that 
such concerns will not impair our working relationships with co-
management partners and other stakeholders over the long term, 
especially given our continued efforts to provide accurate information 
regarding the effects of this designation.
    Regarding exclusions from critical habitat of buffers around 
locations where oil and gas development is occurring, we do not 
consider exclusion from critical habitat to be appropriate in this 
case. The primary industrial activities occurring within Arctic ringed 
seal critical habitat are associated with the oil and gas industry. 
Areas of importance to the oil and gas industry within the critical 
habitat include the physical and biological features essential to the 
conservation of Arctic ringed seals, and there are conservation 
benefits to Arctic ringed seals if the areas requested for exclusion 
remain in the designation. Moreover, the presence of designated 
critical habitat for other marine mammal species has not resulted in 
the inability of the oil and gas industry to engage in exploration, 
development, and production activities. Regarding benefits of the 
designation, also see our response to Comment 15.
    Comment 64: Two commenters stated that we should exclude from 
designation areas that are ice-free at certain times of the year and 
that support activities that are vital and necessary for residents in 
northern coastal communities, such as shipping lanes used by vessels to 
transport the vast majority of goods and services, to ensure that there 
are no impacts on such activities. One commenter stated that from 
approximately mid-June in some regions through September this shipping 
not only transports goods, but also serves as a cultural link among 
coastal Alaska Native communities.
    Response: The critical habitat designation would not preclude or 
restrict shipping activities. Section 7

[[Page 19279]]

consultation requirements apply only when a Federal action is involved 
(i.e., an action authorized, funded, or carried out by a Federal 
agency). We are not aware of a Federal nexus for the vessel traffic 
referred to by the commenters such that this activity would be subject 
to section 7 consultation. As summarized in the Economic Impacts 
section of this final rule, and discussed in more detail in the Final 
Impact Analysis Report, we anticipate that the impacts of the 
designation will be limited to incremental administrative effort to 
consider potential adverse modification of Arctic ringed seal critical 
habitat as part of future section 7 consultations, and that most of 
these consultations will be associated with oil and gas activities. 
Therefore, we find that there is not a clear basis to exercise the 
discretion delegated to us by the Secretary to conduct an exclusion 
analysis to further consider and weigh the benefits of designation and 
exclusion of shipping lanes.
Legal and Procedural Comments
    Comment 65: Several commenters cited our regulations at 50 CFR 
424.12(a)(1)(ii) in stating that we should determine that designation 
of critical habitat is not prudent for the Arctic ringed seal, in 
particular, because the primary threats to the species stem solely from 
climate change, and therefore, they cannot be addressed through 
management actions resulting from section 7 consultations. Commenters 
also referred to the preamble to the 2019 final rule that revised 
portions of the regulations at 50 CFR part 424, which discussed this 
newly added provision relative to listed species experiencing threats 
stemming from climate change. Additionally, one commenter pointed to 
our statement in the revised proposed critical habitat rule regarding 
our inability to draw a causal linkage between any particular single 
source of GHG emissions and identifiable effects on the proposed 
essential features. Commenters added that there is a strong basis for 
determining that designation would not be prudent because: (1) The 
Arctic ringed seal is sufficiently protected under existing laws and 
regulations, including the MMPA; (2) the species is not threatened or 
otherwise negatively impacted by any of the regulated activities that 
occur within its range; (3) NMFS anticipates that the designation will 
not result in additional project modifications through section 7 
consultations; and (4) there are insufficient data available to support 
the identification of critical habitat. ADF&G also contended that 
critical habitat is not determinable, citing some similar 
considerations. The Ice Seal Committee likewise indicated that they 
believe designation of critical habitat for the Arctic ringed seal is 
not necessary or prudent at this time.
    Response: Section 4(a)(3)(A) of the ESA requires that we designate 
critical habitat to the maximum extent prudent and determinable at the 
time a species is listed. Finding that critical habitat is not 
determinable at the time of listing allows NMFS to extend the deadline 
for finalizing a critical habitat designation by one year under section 
4(b)(6)(C)(ii) of the ESA (16 U.S.C. 1533(b)(6)(C)(ii)). At the end of 
the 1-year extension, NMFS must use the best scientific data available 
to make the critical habitat determination. When we listed the Arctic 
ringed seal as threatened in December 2012, critical habitat was not 
determinable. Subsequently, we researched, reviewed, and compiled the 
best scientific data available to develop a critical habitat 
designation for Arctic ringed seals. Critical habitat is now 
determinable.
    With regard to making a ``not prudent'' determination, our 
regulations at 50 CFR 424.12(a)(1) provide a non-exhaustive list of 
circumstances in which we may, but are not required to, find that it 
would not be prudent designate critical habitat. In 2019, several 
revisions to this regulatory provision were finalized, including the 
addition of the following circumstance, cited by commenters, in Sec.  
424.12(a)(1)(ii): The present or threatened destruction, modification, 
or curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the ESA (84 FR 45020, August 27, 
2019). Here, the Arctic ringed seal is threatened throughout all of its 
range by ongoing and projected reductions in sea ice habitat (77 FR 
76706, December 28, 2012). Further, the threats to the essential 
features of Arctic ringed seal critical habitat do not stem solely from 
causes that cannot be addressed through management actions from 
consultations under section 7(a)(2) of the ESA. Rather, as we discussed 
in the revised proposed rule, we identified four primary sources of 
threats to the essential features of Arctic ringed seal critical 
habitat--climate change, oil and gas activity, marine shipping and 
transportation, and commercial fisheries--that may require special 
management considerations or protection for the essential features. The 
situation for the Arctic ringed seal thus differs from the scenarios 
discussed in the preamble to the 2019 revisions to the ESA regulations 
in which threats to the listed species' habitat stem solely from 
climate change. Additionally, if a listed species does fall into that 
category, a not prudent finding is not mandatory, as we may determine 
that designating critical habitat could still contribute to the 
conservation of the species. Moreover, the other reasons given by 
commenters in support of making a ``not prudent'' determination (e.g., 
whether existing protections are sufficient and whether project 
modifications in section 7 consultations result from the designation) 
do not provide any basis for determining that the Arctic ringed seal 
falls within any of the other circumstances identified in our 
regulations at 50 CFR 424.12(a)(1) in which we may determine a 
designation would not be prudent. The identification of critical 
habitat is not expected to increase the degree of threat to the 
species, areas within U.S. jurisdiction provide more than negligible 
conservation value for this circumpolar species, and a specific area 
meets the definition of critical habitat.
    Comment 66: Several commenters stated that critical habitat is 
unnecessary to conserve Arctic ringed seals because the species is 
healthy and abundant, widely distributed throughout its historical 
range, and has not shown any indication of a decline in population. 
They stated that moreover, the Arctic ringed seal was listed as 
threatened under the ESA based on impacts to habitat from climate 
change projected to occur decades into the future. They questioned 
expending resources on developing a critical habitat designation in 
this circumstance.
    Response: As we indicated in our response to Comment 65, the ESA 
requires that we designate critical habitat to the maximum extent 
prudent and determinable at the time a species is listed under the ESA, 
or within one year of listing if critical habitat is not determinable 
at that time. The comments regarding abundance, distribution, and 
population trend are relevant to ESA listing decisions (and were 
addressed in the final rule listing the Arctic ringed seal as 
threatened; see 77 FR 76706, December 28, 2012), but they do not have 
any bearing on whether critical habitat should be designated. Habitat 
is a fundamental aspect of conserving any species, and as discussed 
above, we are required to designate critical habitat for listed species 
except in the very limited circumstances in which it is determined not 
to be prudent.
    Comment 67: One commenter stated that we should delay designation 
of

[[Page 19280]]

critical habitat until after completing the ongoing 5-year review of 
the species under the ESA. In addition, two commenters expressed 
concern that the designation is being driven by litigation and 
suggested that further research be conducted before designating 
critical habitat.
    Response: The ESA requires us to designate critical habitat, to the 
maximum extent prudent and determinable, at the time species are listed 
(16 U.S.C. 1533(a)(3)(A)(i)). If designation is not then determinable, 
we may extend this deadline by not more than one additional year. A 
lawsuit was filed in Federal court alleging we did not meet the 
statutory deadline to designate critical habitat, and under a court-
approved stipulated settlement agreement, we must complete a final 
critical habitat determination by March 15, 2022 (see Background 
section). We cannot further delay the statutory requirement to 
designate critical habitat in order to complete the 5-year review.
    Comment 68: One commenter stated that because the recent amendments 
to our joint NMFS/USFWS regulations implementing section 4 of the ESA 
(84 FR 45020, August 27, 2019; 85 FR 81411, December 16, 2020) are 
currently the subject of several lawsuits and are included in a list of 
regulatory actions that are being reviewed by the current 
administration, we should not rely on those regulatory amendments in 
designating critical habitat for the Arctic ringed seal.
    Response: In designating critical habitat, we are required to 
adhere to the ESA implementing regulations that are currently in 
effect. The regulatory amendments published on August 27, 2019, became 
effective and applicable for proposed critical habitat rules published 
after September 26, 2019. However, those recent revisions did not 
materially change our determination of critical habitat for Arctic 
ringed seals because they involve the procedures and criteria used for 
designating unoccupied areas and making discretionary determinations 
that designating critical habitat would not be prudent. A regulatory 
amendment published on December 16, 2020, which added a definition of 
``habitat'' to our ESA implementing regulations, became effective on 
January 15, 2021, and is applicable to critical habitat rulemakings for 
which a proposed critical habitat rule is published after that date. As 
a result, that rule does not apply to the critical habitat rulemaking 
for Arctic ringed seals. We note, however, that the new regulatory 
definition of ``habitat'' is consistent with our consideration of 
habitat in designating critical habitat for Arctic ringed seals.
    Comment 69: The North Slope Borough and the Ice Seal Committee 
expressed concern that we did not adequately inform or consult with the 
Ice Seal Committee during preparation of the revised proposed rule, and 
stated that the Ice Seal Committee membership has a significant amount 
of IK and experience that is directly relevant to various elements of 
the designation. They requested that we consult with the Ice Seal 
Committee and provide the opportunity to provide recommendations 
concerning the critical habitat designation prior to proceeding further 
with the designation. The Ice Seal Committee further commented that 
given that ringed seals are essential for subsistence and the 
continuation of traditional ways of life, this consultation and any 
subsequent regulatory actions must be based on IK of threats to the 
species and the conservation actions considered necessary. In addition, 
another commenter urged us to conduct additional meaningful outreach 
that engages local Alaska Native hunters and other experts and consider 
their input in developing the critical habitat designation. In 
addition, one commenter stated that it appeared that no Alaska Native 
indigenous experts provided review and input on the proposed 
designation prior to its publication.
    Response: We understand the concerns expressed by the Ice Seal 
Committee about coordination and input on the designation of critical 
habitat for Arctic ringed seals, and recognize that Alaska Native 
subsistence hunting communities have unique knowledge of ringed seals, 
which are an essential traditional subsistence resource. We gave 
presentations and updates to the Ice Seal Committee on the designation 
of critical habitat for Arctic ringed seals and sought their input 
beginning in 2013. Prior to developing a revised proposed critical 
habitat designation, we discussed the process for developing the 
proposal during the Ice Seal Committee co-management meeting in January 
2020, where we reviewed a list of relevant questions regarding the 
identification of critical habitat for the Ice Seal Committee's 
consideration and input. At that meeting, we also distributed an 
informational flyer that addressed the designation process and related 
topics. In September 2020, we provided an update to the Ice Seal 
Committee by email about the schedule for issuing the revised proposed 
designation and related information. In January 2021, we notified the 
Ice Seal Committee by email in advance of the scheduled publication of 
the revised proposed rule, and we subsequently followed up by letter 
regarding the revised proposed designation and the comment period on 
the proposal. During the Ice Seal Committee co-management meeting in 
February 2021, we presented information regarding the revised proposed 
designation, the comment period, and the schedule for hearings, and we 
highlighted the types of data and information we were particularly 
seeking to inform development of the final designation. We also 
provided information to the Ice Seal Committee regarding the public 
hearings by email. In response to their requests to do more to 
publicize the proposed designation and the scheduled hearings, we 
provided a flyer to the Ice Seal Committee to share and we arranged to 
run public service announcements on the radio to inform people about 
the upcoming hearings. During the Ice Seal Committee meeting in 
September 2021, we provided an update on the status of development of 
the final critical habitat designation and sought input about our 
efforts to coordinate with, and gain input from, the Ice Seal Committee 
regarding the designation. We will continue to make efforts to improve 
our communications with the Ice Seal Committee on matters pertaining to 
the conservation and management of ice seals in Alaska. With regard to 
the comments concerning our consideration of IK, also see our response 
to Comment 72.
    Regarding the comment concerning review of the revised proposed 
designation by Alaska Native indigenous experts prior to publication, 
we sought such input from Alaska Native hunters, including some elders 
with considerable IK, during Ice Seal Committee meetings as discussed 
in the preceding paragraph. In developing the final critical habitat 
designation, we fully considered all of the comments received on the 
revised proposed rule, including from the Ice Seal Committee, some Ice 
Seal Committee partner organizations, Alaska Native hunters, and 
residents of western and northern coastal communities.
    Comment 70: The Ice Seal Committee expressed concern that NMFS is 
not sufficiently providing notice of regulatory actions or engaging 
with Alaska Native ice seal hunters. To promote outreach and engagement 
with the Alaska Native community, the Ice Seal Committee suggested that 
we prepare and distribute handouts that summarize proposed and final 
regulatory measures that clearly identify

[[Page 19281]]

implications and requirements for affected Alaska Native hunters. The 
Ice Seal Committee committed to assisting NMFS in these efforts. 
Another commenter similarly urged NMFS to work with Alaska Native 
organizations to develop improved processes to ensure meaningful 
outreach and consultation. In addition, another commenter urged NMFS to 
engage in consultation with Tribes and Alaska Native corporations going 
forward before drafting and publishing proposed rules, so the proposed 
rules can incorporate and reflect the expertise of indigenous Alaskans 
from the start.
    Response: We understand and welcome the Ice Seal Committee's 
interest in furthering our communications and engagement with Alaska 
Native communities and ice seal hunters, and we will continue to work 
closely with them regarding conservation and management issues related 
to ice seals. We note that the primary regulatory impact of critical 
habitat designation is that actions authorized, funded, or carried out 
by Federal agencies, and that may affect critical habitat, must undergo 
consultation under section 7 of the ESA to assess the effects of such 
actions on critical habitat, and must ensure that their actions are not 
likely to destroy or adversely modify critical habitat. We do not 
expect this critical habitat designation to have any adverse impact on 
Alaska Native subsistence activities. We also do not expect the 
critical habitat designation to result in any new reporting, sampling, 
or other procedural requirements for Alaska Native subsistence 
harvests. Regarding the comment about consultations with Tribes and 
Alaska Native Corporations, we contacted potentially affected tribes 
and Alaska Native Corporation by mail and offered them the opportunity 
to consult on the designation of critical habitat for the Arctic ringed 
seal and discuss any concerns they may have. We received no requests 
for consultation in response to that mailing.
    Comment 71: One commenter stated that navigating the NMFS website 
was challenging and made it more difficult to review all the relevant 
information and submit written comments on the revised proposed 
critical habitat designation.
    Response: The commenter may be referring to the eRulemaking Portal 
where we accepted electronic comments on the revised proposed rule and 
the documents associated with the proposal could be accessed. This 
website transitioned to a new interface during the comment period on 
the revised proposed rule, which may have complicated use by the 
commenter. Although electronic comments on the revised proposal were 
accepted during the comment period via the eRulemaking Portal, we also 
provided links to the documents associated with this rulemaking on our 
website, and we accepted written comments by mail.
Other Comments
    Comment 72: A number of commenters, including the Ice Seal 
Committee and the North Slope Borough, indicated that we should further 
utilize IK in our determination of critical habitat for the Arctic 
ringed seal. The North Slope Borough stated that due to the amount of 
existing scientific uncertainty concerning ringed seal habitat 
requirements, IK constitutes the best scientific data available and 
should be used in developing and designating any critical habitat for 
the species. They further stated that we should solicit and collect IK 
about ice conditions used by Arctic ringed seals for basking and 
molting, and how flexible they are in the types of habitat they use for 
these activities, and we should use this information to modify the 
proposed designation.
    Response: In developing this final rule, we considered the best 
scientific data available, including comments submitted from 
individuals who provided IK about Arctic ringed seal habitat use, and 
available publications and reports that documented IK for coastal 
communities located in western and northern Alaska. We also attempted 
to incorporate additional information from Alaska Native hunters into 
the determination of critical habitat by soliciting input from the Ice 
Seal Committee regarding the essential features of Arctic ringed seal 
critical habitat and specifically offering to consult with Alaska 
Native tribes and organizations regarding the development of the 
designation. Although we received some input in response, we recognize 
that additional IK exists that we have been unable to incorporate. 
However, the ESA does not allow us to defer the designation of critical 
habitat in order to collect additional data. Under a court-approved 
stipulated settlement agreement, we must complete a final critical 
habitat determination by March 15, 2022 (see Background section).
    Comment 73: The Marine Mammal Commission and two others commenters 
noted that as sea ice extent continues to decline substantially Arctic-
wide, and the timing, rate, and extent of seasonal sea ice loss and 
formation in the Bering and Chukchi seas continue to shift, areas 
currently considered to be critical habitat may change. They 
recommended that we therefore review the critical habitat designation 
for Arctic ringed seals every 5 years, or as substantial new 
information becomes available, to evaluate whether there is a need to 
revise the designation.
    Response: We anticipate that future research will add to our 
knowledge of the habitat needs of the Arctic ringed seal and how 
changing sea ice and ocean conditions are affecting the seals and the 
habitat features essential to their conservation. If additional data 
become available that support a revision to this critical habitat 
designation, we can consider using the authority provided under section 
4(a)(3)(A)(ii) of the ESA to revise the designation, as appropriate.
    Comment 69: The Marine Mammal Commission stated that finding an 
effective way of addressing the risks posed by climate change is likely 
the only way to fulfill the ESA's mandate to conserve Arctic ringed 
seals and the ecosystem on which they depend. The Commission 
recommended that we work with key Federal agencies on a coordinated 
strategy to address the broader underlying problem--the need to reduce 
GHG emissions, thereby mitigating the negative impacts of climate 
change on Arctic marine mammals, including ringed seals, and their 
habitat. They noted that this strategy should be supported by work with 
Federal and state agencies, co-management partners, and local 
communities via existing research partnerships to foster routine 
inclusion of IK along with conventional science in assessing and 
predicting habitat transformation in the Arctic. In addition, other 
commenters stated that addressing loss of sea ice habitat would require 
international collaboration.
    Response: We agree that addressing the effects of climate change on 
Arctic ringed seals and their habitat will require continued monitoring 
and research, and we look forward to working with our partners and 
stakeholders in furthering the conservation of this species. In 
addition to ongoing research on Arctic ringed seals conducted by NOAA's 
Marine Mammal Laboratory, NOAA provides climate analyses, sea ice 
forecasts, and other information to help other agencies and the public 
understand changes in the Earth's atmosphere and climate. These types 
of information products are used by a variety of state, Federal, and 
international bodies to inform decisions related to the root causes of 
climate change. NOAA also provides funding to and works cooperatively 
with other agencies on these efforts.

[[Page 19282]]

    Comment 75: ADF&G requested that we review and incorporate into the 
final rule relevant information and literature cited in their 
submission of information for the 5-year status review of four 
subspecies of the ringed seal, including the Arctic ringed seal.
    Response: We appreciate the information and references submitted 
for the 5-year status review of ringed seals. We reviewed and evaluated 
this information as part of our critical habitat determination, which 
is incorporated into the preamble to this final rule as appropriate, 
and is included in the decision record for this designation.

Summary of Changes From the Revised Proposed Designation

    Based on our consideration of comments and information received 
from peer reviewers and the public on our January 9, 2021, revised 
proposed rule (86 FR 1452), and additional information we reviewed as 
part of our reconsideration of issues discussed in the revised proposed 
rule, we made several changes from the proposed critical habitat 
designation. These changes are briefly summarized below and discussed 
in further detail in the relevant responses to comments and other 
sections of the preamble of this final rule.
    (1) Revised primary prey resources essential feature. In the 
revised proposed rule, we identified primary prey resources to support 
Arctic ringed seals as an essential feature, which we defined to be 
Arctic cod (Boreogadus saida), saffron cod (Eleginus gracilis), 
shrimps, and amphipods. In response to peer reviewer and public 
comments requesting we identify additional prey species in the 
regulatory definition of this essential feature, we re-evaluated the 
information used to support the proposed definition of the essential 
feature, along with new information provided in a recent report cited 
in a peer reviewer's comments (Quakenbush et al. 2020), to determine if 
revision of the proposed definition of this essential feature may be 
appropriate.
    In the revised proposed rule, we considered information on ringed 
seal diet in the central Beaufort Sea reported by Lowry et al. (1980b). 
However, we later identified a subsequent publication by Frost and 
Lowry (1984) that incorporated additional samples from the Beaufort Sea 
not included in that previous publication. Because the ringed seal diet 
information reported in the latter publication represents additional 
locations and greater seasonal sample sizes, we considered this 
information in place of Lowry et al. (1980b) for the Beaufort Sea, 
although it does not present significant new findings.
    After thorough consideration of the best information currently 
available, we have concluded that it is appropriate to identify rainbow 
smelt as a primary prey species of Arctic ringed seals. Our review of 
this information also reconfirmed that Arctic cod, saffron cod, 
shrimps, and amphipods are prominent prey species for Arctic ringed 
seals in Alaska and we therefore continue to identify them as primary 
prey species. However, diet composition and the relative prominence of 
certain prey species vary both geographically and seasonally, and 
differences in diet between age classes (pups and non-pup seals), as 
well as a temporal shift in diet in the Bering and Chukchi seas have 
been reported. In addition, ringed seal diet information for the 
Beaufort Sea is relatively limited. We have therefore revised the 
definition of the primary prey resources essential feature in this 
final rule to include a description of the seals' most common types of 
prey, which are small, often schooling fishes, and small crustaceans, 
and to identify for those types of prey, the predominant prey species 
in the seals' diets (i.e., Arctic cod, saffron cod, rainbow smelt, 
shrimps, and amphipods), which we conclude are essential to the 
conservation of the Arctic ringed seal. The revised primary prey 
resources essential feature that we identify and adopt in this final 
rule is as follows: Primary prey resources to support Arctic ringed 
seals, which are defined to be small, often schooling, fishes, in 
particular, Arctic cod, saffron cod, and rainbow smelt; and small 
crustaceans, in particular, shrimps and amphipods. We find that this 
level of specificity, naming species known to be prominent in Arctic 
ringed seals' diet but not limiting the definition to only those 
species, is most appropriate for defining this essential feature based 
on the best scientific data available.
    (2) Revised sea ice essential features. In the revised proposed 
rule, our definitions of the sea ice essential features excluded any 
bottom-fast ice extending seaward from the coastline (typically in 
waters less than 2 m deep). Some public comments received objected to 
the exclusion of bottom-fast ice, while others argued that very shallow 
ice-covered waters are not essential to Arctic ringed seal 
conservation, in part because of the occurrence of bottom-fast ice in 
such areas. These comments led us to re-evaluate how the sea ice 
essential features may be best described relative to very shallow 
nearshore areas. After thorough review of the best scientific data 
available, we have concluded that sea ice habitat essential for birth 
lairs, as well as for basking and molting, is best described with 
respect to very shallow waters in terms of minimum water depth. Based 
on our assessment of available information regarding Arctic ringed seal 
use of shallow ice-covered areas and the water depths in which sea ice 
may become bottom-fast, in this final rule we identify 3 m as the 
minimum water depth for the sea ice essential features. We have 
therefore omitted the phrase ``excluding any bottom-fast ice extending 
seaward from the coastline (typically in waters less than 2 m deep)'' 
from the definitions of these essential features and instead specify 
that they are found in ``waters 3 m or more in depth (relative to 
MLLW).'' This delineates a clear shoreward boundary and avoids the 
implication that some shallow waters may or may not qualify as critical 
habitat depending on whether bottom-fast ice is present. We have also 
made minor wording changes in the definition of sea ice essential for 
the formation and maintenance of birth lairs for clarity. We further 
explain and clarify our reasoning for this change in the Physical and 
Biological Features Essential to the Conservation of the Species 
section of this final rule.
    (3) Revised shoreward boundary of critical habitat. In the revised 
proposed rule, we identified one specific area in the Bering, Chukchi 
and Beaufort seas containing the proposed essential features. Although 
the same seaward boundaries were identified for this specific area with 
respect to both the primary prey resources essential feature and the 
sea ice essential features, the shoreward boundary was identified as 
the line of MLLW based principally on occurrence of the proposed 
primary prey resources essential feature. We expressed in the revised 
proposed rule that data to determine the specific area containing the 
essential features are limited, and we specifically requested data and 
comments on our proposed delineation of these boundaries. In response 
to public comments that raised concerns about our proposed delineation 
of the boundaries of critical habitat with respect to the primary prey 
resources essential feature (as well as to peer reviewer and public 
comments related to ringed seal use of habitat for foraging), and after 
revising the proposed definitions of the essential features (as 
described above), we re-evaluated the best scientific data available 
and the approach we had used to identify the proposed boundaries to

[[Page 19283]]

ensure that they were drawn appropriately.
    In reviewing these comments and considering the available data, we 
recognized that the available information on the distributions of 
Arctic ringed seal primary prey species indicate that these prey 
resources are widely distributed across the geographic area occupied by 
these seals. We have no information that suggests any portions of the 
species' occupied habitat contains prey species that are of greater 
importance or otherwise differ from those found within the specific 
area defined by the sea ice essential features. We concluded it was not 
possible to delineate the boundaries of critical habitat based solely 
on the description of the primary prey essential feature without 
implying the species' entire occupied range qualifies as critical 
habitat. The best information available indicates that 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. Most importantly, the movements and habitat use of 
Arctic ringed seals are strongly influenced by the seasonality of sea 
ice and they forage throughout the year (albeit with reduced feeding 
during molting). Given this and our consideration of the best 
scientific data available, we concluded that the best approach to 
determine the appropriate boundaries for critical habitat is to 
identify the specific area(s) in which both the primary prey essential 
feature and the sea ice essential features occur, and that this 
specific area contains sufficient primary prey resources to support the 
conservation of Arctic ringed seals. As discussed previously, in this 
final rule we identify 3 m (relative to MLLW) as the minimum water 
depth for the sea ice essential features, and we therefore define the 
shoreward boundary of the specific area containing one or more of the 
essential features as the 3-m isobath (relative to MLLW), rather than 
the line of MLLW, as identified in the revised proposed rule. The 
boundaries are otherwise unchanged from the revised proposed rule.
    (4) Revised exclusion based on national security impacts. As a 
result of clarifications provided by the Navy regarding the boundaries 
of the particular area north of the Beaufort Sea shelf that the Navy 
requests be excluded from the critical habitat designation for national 
security reasons, we have revised the southern and western boundaries 
of the area excluded from designation in this final rule.
    (5) Final Impact Analysis Report. In response to peer reviewer and 
public comments, we revised and updated the Draft Impact Analysis 
Report to further explain and clarify our analysis of the economic 
costs and benefits of the designation, and to correct typographical and 
other minor errors. The timeframe, wage schedule, and dollar year of 
the analysis were also updated to reflect the implementation schedule 
of the final rule. We also revised the analysis of the incremental 
administrative costs of section 7 consultations associated with the 
critical habitat designation to reflect the revised delineation of the 
shoreward boundary of the designation explained above.
    (6) New information. In this final rule, we have made minor updates 
and incorporated additional information and references as appropriate, 
including information from IK documented for coastal communities 
located in western and northern Alaska, based on peer reviewer and 
public comments, new information we received or reviewed after 
publication of the revised proposed rule, and our internal review of 
the revised proposed rule.

References Cited

    A complete list of all references cited in this final rule can be 
found on the NMFS website at www.fisheries.noaa.gov/species/ringed-seal#conservation-management, the Federal eRulemaking Portal at 
www.regulations.gov/docket/NOAA-NMFS-2013-0114, and is available upon 
request from the NMFS office in Juneau, Alaska (see FOR FURTHER 
INFORMATION CONTACT).

Classifications

National Environmental Policy Act

    We have determined that an environmental assessment as provided for 
under the National Environmental Policy Act is not required for 
critical habitat designations made pursuant to the ESA. See Douglas 
Cnty. v. Babbitt, 48 F.3d 1495, 1502-08 (9th Cir. 1995), cert. denied, 
116 S. Ct. 698 (1996).

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 a final regulatory flexibility act analysis (FRFA), which 
is included as part of the Final Impact Analysis Report for this final 
rule. The FRFA estimates the potential number of small businesses that 
may be directly regulated by this 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 this action into industry sectors and provides an 
estimate of their number in each sector, based on the applicable NAICS 
codes. A summary of the FRFA follows.
    A description of the action (i.e., designation of critical 
habitat), why it is being considered, and its legal basis are included 
in the preamble of this final rule. This 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 this action. Existing Federal laws and regulations overlap with 
this rule only to the extent that they provide protection to natural 
resources within the area designated as critical habitat generally. 
However, no existing regulations specifically prohibit destruction or 
adverse modification of critical habitat for the Arctic ringed seal.
    This critical habitat designation 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 timeframe of the analysis (i.e., 
the next 10 years) that may trigger an ESA section 7 consultation due 
to the potential to affect one or more of the essential habitat 
features also have the potential to affect Arctic ringed seals. Thus, 
as discussed above, we expect that none of

[[Page 19284]]

the activities we identified would trigger a consultation solely on the 
basis of this critical habitat designation; in addition, we have no 
information to suggest that additional requests for project 
modifications are likely to result specifically from this designation 
of critical habitat. Therefore, 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 Final 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 $29,900 to $54,900 
(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 estimated to be 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. In addition, the analysis 
anticipates three section 7 consultations on coastal construction 
activities over 10 years that may include third parties. It is not 
known whether the third parties are likely to be large or small 
entities. The total administrative costs associated with these three 
consultations that may be borne by third parties over 10 years are 
estimated to be $2,000 (discounted at 7 percent).
    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 
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. However, 
through the ESA 4(b)(2) exclusion analysis process, we identified and 
selected an alternative under which a particular area is excluded from 
designation based on national security impacts after determining that 
the benefits of exclusion outweigh the conservation benefits to the 
species. We selected this alternative because it results in a critical 
habitat designation that provides for the conservation of the species 
and is consistent with the ESA and joint NMFS and USFWS 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

    This final rule does not contain a collection-of-information 
requirement for the purposes of the Paperwork Reduction Act.

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

    This rule will not produce a Federal mandate.

Information Quality Act and Peer Review

    The data and analyses supporting this action have undergone a pre-
dissemination review and have been determined to be in compliance with 
applicable information quality guidelines implementing the Information 
Quality Act (Section 515 of Pub. L. 106-554).
    On December 16, 2004, the OMB issued its Final Information Quality 
Bulletin for Peer Review (Bulletin) establishing minimum peer review 
standards, a transparent process for public disclosure of peer review 
planning, and opportunities for public participation. The Bulletin was 
published in the Federal Register on January 14, 2005 (70 FR 2664). The 
primary purpose of the Bulletin, which was implemented under the 
Information Quality Act, is to improve the quality and credibility of 
scientific information disseminated by the Federal government by 
requiring peer review of ``influential scientific information'' and 
``highly influential scientific information'' prior to public 
dissemination. Influential scientific information is defined as 
information the agency reasonably can determine will have or does have 
a clear and substantial impact on important public policies or private 
sector decisions. The Bulletin provides agencies broad discretion in 
determining the appropriate process and level of peer review. Stricter 
standards were established for the peer review of ``highly influential 
scientific assessments,'' defined as information whose dissemination 
could have a potential impact of more than $500 million in any one year 
on either the public or private sector or that the information is 
novel, controversial, or precedent-setting, or has significant 
interagency interest.
    The evaluation of critical habitat presented in this final rule and 
the information presented in the supporting Final 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 (79 FR 73010, December 9, 2014) 
from five reviewers, and of the information used to prepare the 
associated draft 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 the 2021 revised proposed rule (86 FR 1452, January 8, 
2021) and the associated Draft Impact Analysis Report. We obtained 
three additional independent peer reviews of our evaluation of 
available data, and our use and interpretation of this information, in 
making conclusions regarding what areas meet the definition of critical 
habitat in the revised proposed rule, and three independent peer 
reviews of the Draft Impact Analysis Report for the revised proposed 
rule. The peer reviewer comments are addressed in this final rule and 
in the Final Impact Analysis

[[Page 19285]]

Report, and were compiled into two reports that are available at: 
www.noaa.gov/organization/information-technology/peer-review-plans.

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, E.O.s, 
judicial decisions, and co-management agreements, which differentiate 
tribal governments from the other entities that deal with, or are 
affected by, the Federal Government. This relationship has given rise 
to a special Federal trust responsibility involving the legal 
responsibilities and obligations of the United States toward Indian 
tribes and the application of fiduciary standards of due care with 
respect to Indian lands, tribal trust resources, and the exercise of 
tribal rights. E.O. 13175 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 critical habitat area is located seaward of the 3-m 
isobath, no tribal-owned lands overlap with the designation. Although 
this 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, a co-management organization under section 119 of the MMPA. 
We discussed the designation of critical habitat for Arctic ringed 
seals with the Ice Seal Committee and provided updates regarding the 
timeline for publication of this rule. We also contacted potentially 
affected tribes and Alaska Native corporations by mail and offered them 
the opportunity to consult on the revised proposed designation of 
critical habitat for the Arctic ringed seal and discuss any concerns 
they may have. We did not receive any requests from potentially 
affected tribes or Alaska Native corporations in response to the 
revised proposed rule.

Executive Order 12898, Environmental Justice

    The designation of critical habitat is not expected to have a 
disproportionately high effect on minority populations or low-income 
populations.

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, 
this 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 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

    OMB has determined that this rule is significant for purposes of 
E.O. 12866 review. A Final Impact Analysis Report has been prepared 
that considers the economic costs and benefits of this 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 Final Impact Analysis Report, the total estimated 
present value of the incremental impacts of the critical habitat 
designation is approximately $714,000 over the next 10 years 
(discounted at 7 percent) for an annualized cost of $95,000. Overall, 
economic impacts are expected to be small and Federal agencies are 
anticipated to bear at least 42 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).

Executive Order 13132, Federalism

    E.O. 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 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, this rule does not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in the Order. State or local governments may be indirectly 
affected by this critical habitat 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. One of the key conclusions of the 
economic impact analysis is that the incremental impacts of the 
critical habitat designation will likely be limited to additional 
administrative costs to NMFS, Federal agencies, and to third parties 
stemming from the need to consider impacts to critical habitat as part 
of the forecasted section 7 consultations. The designation of critical 
habitat is not expected to have substantial indirect impacts on State 
or local governments.

Executive Order 13211, Energy Supply, Distribution, and Use

    E.O. 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 critical 
habitat designation on the supply, distribution, or use of energy (see 
Final Impact Analysis Report for this rule). This 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 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

[[Page 19286]]

Final Impact Analysis Report for this 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 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: March 18, 2022.
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 amended as follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

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

0
2. In Sec.  223.102, in the table in paragraph (e), under Marine 
Mammals, revise the entry for ``Seal, ringed (Arctic subspecies)'' to 
read as follows:


Sec.  223.102   Enumeration of threatened marine and anadromous 
species.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                            Species \1\
--------------------------------------------------------------------  Citation(s) for     Critical
                                                    Description of        listing         habitat     ESA rules
          Common name            Scientific name     listed entity    determination(s)
----------------------------------------------------------------------------------------------------------------
        Marine Mammals
 
                                                  * * * * * * *
Seal, ringed (Arctic            Phoca (=Pusa)      Entire            77 FR 76706, Dec.      226.228           NA
 subspecies).                    hispida hispida.   subspecies.       28, 2012.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722; February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612; November 20, 1991).

* * * * *

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority:  16 U.S.C. 1533.

0
4. Add Sec.  226.228 to read as follows:


Sec.  226.228   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 described in this section. The map and textual 
descriptions in this section are 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 nearshore boundary, defined by the 3-m isobath relative to mean 
lower low water (MLLW), to an offshore limit within the U.S. Exclusive 
Economic Zone (EEZ). The boundary extends offshore from the northern 
limit of the United States-Canada border approximately 90 km to 
70[deg]26'19'' N/140[deg]11'21'' W, and from this point runs generally 
westward along the line connecting the following points: 70[deg]55'35'' 
N/142[deg]33'51'' W, 70[deg]53'25'' N/144[deg]37'19'' W, 71[deg]1'22'' 
N/146[deg]36'55'' W, 71[deg]17'21'' N/148[deg]34'58'' W, and 
71[deg]20'8'' N/150[deg] W. From this point (71[deg]20'8'' N/150[deg] 
W) the boundary follows longitude 150[deg] W northward to 72[deg]20'4'' 
N/150[deg] W, then extends westward to 72[deg]20'4'' N/153[deg] W, then 
follows longitude 153[deg] W northward to the seaward limit of the U.S. 
EEZ, and then follows the limit of the U.S. EEZ northwestward; then 
southwestward and south to the intersection of the southern boundary of 
the critical habitat in the Bering Sea at 61[deg]18'15'' N/
177[deg]45'56'' W. The southern boundary extends southeastward from 
this intersection point to 60[deg]7'' N/172[deg]1'' W, then 
northeastward along a line extending to near Cape Romanzof at 
61[deg]48'42'' N/166[deg]6'5'' W, with the nearshore boundary defined 
by the 3-m isobath. This includes waters off the coasts of the 
Kusilvak, and Nome Census Areas, and the Northwest Arctic and North 
Slope Boroughs, Alaska. Critical habitat does not include permanent 
manmade structures such as boat ramps, docks, and pilings that were in 
existence within the legal boundaries as of May 2, 2022.
    (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 waters 3 m or more in depth 
(relative to MLLW) containing areas of seasonal landfast (shorefast) 
ice or dense, stable pack ice, that have undergone deformation and 
contain snowdrifts of sufficient depth to form and maintain birth lairs 
(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 in waters 3 m or more in depth (relative to MLLW).
    (3) Primary prey resources to support Arctic ringed seals, which 
are defined to be small, often schooling, fishes, in particular, Arctic 
cod (Boreogadus saida), saffron cod (Eleginus gracilis), and rainbow 
smelt (Osmerus dentex); and small crustaceans, in particular, shrimps 
and amphipods.
    (c) Map of Arctic ringed seal critical habitat follows.
    Figure 1 to paragraph (c)

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[FR Doc. 2022-06197 Filed 3-31-22; 8:45 am]
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