19180 Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 226 

[Docket No. 220318–0073] 

RIN 0648–BJ65 

Endangered and Threatened Species; 

Designation of Critical Habitat for the 

Beringia Distinct Population Segment 

of the Bearded Seal 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), issue this 

final rule to designate critical habitat for 

the Beringia distinct population 

segment (DPS) of the Pacific bearded 

seal subspecies Erignathus barbatus 

nauticus under the Endangered Species 

Act (ESA). The critical habitat 

designation comprises an area of marine 

habitat in the Bering, Chukchi, and 

Beaufort seas. 

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 

Beringia Distinct Population Segment 

(DPS) of the Bearded Seal’’) can be 

found on the NMFS website at 

www.fisheries.noaa.gov/species/ 

bearded-seal#conservationmanagement. 

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 Beringia DPS of 

the Pacific bearded seal subspecies as 

threatened under the ESA (77 FR 

76740). Section 4(b)(6)(C) of the ESA 

requires the Secretary to designate 

critical habitat concurrently with 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 Beringia DPS in 

a separate rulemaking, as it was not then 

determinable. Concurrently, we 

solicited information to assist us in (1) 

identifying the physical or biological 

features essential to the conservation of 

the Beringia DPS, and (2) assessing the 

economic impacts of designating critical 

habitat for this species. 

On July 25, 2014, the listing of the 

Beringia DPS as a threatened species 

was vacated by the U.S. District Court 

for the District of Alaska (Alaska Oil & 

Gas Ass’n v. Pritzker, Case No. 4:13–cv– 

18–RRB, 2014 WL 3726121 (D. Alaska 

July 25, 2014)). This decision was 

reversed by the U.S. Court of Appeals 

for the Ninth Circuit on October 24, 

2016 (Alaska Oil & Gas Ass’n v. Ross, 

840 F.3d 671 (9th Cir. 2016)), and the 

listing was reinstated on February 22, 

2017. 

On June 13, 2019, the Center for 

Biological Diversity filed a complaint in 

the U.S. District Court for the District of 

Alaska alleging that NMFS had failed to 

timely designate critical habitat for the 

Beringia DPS of bearded seals. Under a 

court-approved stipulated settlement 

agreement between the parties, NMFS 

published a proposed rule to designate 

critical habitat for the Beringia DPS of 

bearded seals on January 8, 2021 (86 FR 

1433). Specifically, we proposed to 

designate as critical habitat for the 

Beringia DPS 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. On January 

27, 2021, a correction to the comment 

period closing date identified in this 

proposal from ‘‘March 9, 2020’’ to 

‘‘March 9, 2021’’ was published in the 

Federal Register (86 FR 7242). 

We requested public comments on the 

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 13518, March 9, 2021). For a 

complete description of our proposed 

action, we refer the reader to the 

proposed rule (86 FR 1433, January 8, 

2021). 

This final rule describes the critical 

habitat designation for Beringia DPS 

bearded seals 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. 

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 

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 


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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 & DeltaMendota 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 bearded seal is the largest of the 

northern ice-associated seals. Adults 

average 2.1 to 2.4 meters (m) in length 

and weigh up to 360 kilograms 

(Chapskii 1938, McLaren 1958, Johnson 

et al. 1966, Burns 1967, Benjaminsen 

1973, Burns 1981). In general, bearded 

seals reach sexual maturity at 5 to 6 

years of age for females and 6 to 7 years 

of age for males (McLaren 1958, 

Tikhomirov 1966, Burns 1967, Burns 

and Frost 1979, Smith 1981, Andersen 

et al. 1999). The life span of bearded 

seals is reported to be about 20 to 25 

years (Kovacs 2002), although some can 

reach 40 years, and females surviving 

into their late 20s or early 30s can 

remain reproductively active 

(Quakenbush 2020a). The average life 

span is likely to be much lower, due to 

high first-year mortality rates (Fedoseev 

2000, Cameron et al. 2010, Trukhanova 

et al. 2018). 

General Seasonal Distribution and 

Habitat Use 

Bearded seals of the Beringia DPS 

inhabit seasonally ice-covered waters of 

the Bering, Chukchi, Beaufort, and East 

Siberian seas. They primarily feed on 

organisms on or near the seafloor 

(benthic organisms) that are more 

numerous in shallow water where light 

can reach the sea bottom. Thus, their 

effective habitat is generally restricted to 

areas where seasonal ice occurs over 

relatively shallow waters, typically less 

than 200 m, where they can reach the 

ocean floor to forage (Burns and Frost 

1979, Burns 1981, Nelson et al. 1984, 

Fedoseev 2000). Still, bearded seal dive 

depths have been recorded to greater 

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

et al. (2010) defined the core 

distribution of bearded seals as those 

areas of known extent that are in water 

less than 500 m deep. 

Sea ice provides bearded seals 

isolation from terrestrial predators, as 

well as some protection from aquatic 

predators such as killer whales (Orcinus 

orca), although the extent of such 

predation is unknown. The ice serves as 

a platform out of the water for whelping 

and nursing of pups, pup maturation, 

and molting (shedding and regrowing 

hair and outer skin layers), as well as for 

resting (Cameron et al. 2010). Bearded 

seals can be found in a broad range of 

different ice types (Fay 1974, Burns and 

Frost 1979, Burns 1981, Nelson et al. 

1984), but they favor drifting pack ice 

with natural openings and areas of open 

water, such as leads, fractures, and 

polynyas, for breathing, hauling out on 

the ice, and accessing the water for 

foraging (Heptner et al. 1976, Burns and 

Frost 1979, Nelson et al. 1984, Kingsley 

et al. 1985, Cleator and Stirling 1990). 

Although bearded seals prefer sea ice 

with natural access to the water, 

observations indicate the seals are able 

to make breathing holes in thinner ice 

(Burns 1967, Burns and Frost 1979, 

Burns 1981, Nelson et al. 1984). They 

tend to avoid areas of continuous, thick, 

landfast (shorefast) ice—which is 

attached to the shoreline and forms 

seasonally to varying extent along the 

Alaskan Arctic coast—and are rarely 

seen in the vicinity of unbroken, heavy, 

drifting ice or large areas of multi-year 

ice (Heptner et al. 1976, Burns and Frost 

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

1985, Cleator and Stirling 1990). Still, 

some bearded seals may occur in areas 

of landfast ice, as documented by aerial 

surveys conducted during late May to 

early June in the Beaufort Sea in 1999 

to 2002 (Moulton et al. 2000, Moulton 

et al. 2001, Moulton et al. 2002, 

Moulton et al. 2003). 

Although adult bearded seals have 

rarely been seen hauled out on land in 

Alaska (Burns 1981, Nelson 1981), two 

adults were captured for tagging in 

September 2019 while they were hauled 

out on land near Utqiag ̇vik (Alaska 

Department of Fish and Game (ADF&G), 

2019, unpublished data). Juvenile 

bearded seals have been observed 

hauled out on land along lagoons and 

rivers in some areas of Alaska, including 

in the Bering Strait region in summer to 

early fall (Huntington 2000, Oceana and 

Kawerak 2014, Gadamus et al. 2015, 

Huntington et al. 2015b), on the 

Chukchi Sea coast near Wainwright 

(Nelson 1981), and on sandy islands 

near Utqiag ̇vik (Cameron et al. 2010). In 

addition, satellite tracking data obtained 

from juvenile bearded seals tagged in 

Alaska during 2014 to 2018 indicate that 

during the period of minimum ice 

extent (July to October), about half of 

the seals that hauled out (7 of 13 

individuals) used terrestrial sites 

located south of the ice edge in 

Kotzebue Sound and Norton Sound (and 

for one individual, in a bay on the 

Chukotka Peninsula) whereas the other 

seals remained near the ice edge and 

hauled out on ice, and two individuals 

showed both patterns in separate years 

(Olnes et al. 2020). There is some 

evidence that, other than during the 

critical life history periods related to 

reproduction and molting, bearded seals 

can remain at sea for extended periods 

without requiring the presence of sea ice 

for hauling out. Some bearded seals 

tagged in Alaska have remained in the 


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water for weeks or months at a time 

during the open-water period and into 

early winter (Frost et al. 2008, Boveng 

and Cameron 2013, Quakenbush et al. 

2019). 

The region that includes the Bering 

and Chukchi seas is the largest area of 

continuous habitat for bearded seals 

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

Bering-Chukchi Platform is a shallow 

intercontinental shelf that encompasses 

about half of the Bering Sea, spans the 

Bering Strait, and covers nearly all of 

the Chukchi Sea. Bearded seals can 

reach the bottom everywhere along the 

shallow shelf, so it provides them 

favorable foraging habitat (Burns 1967). 

The Bering and Chukchi seas are 

generally covered by sea ice in late 

winter and spring and are then mostly 

ice-free in late summer and fall, a 

process that helps to drive a seasonal 

pattern in the movements and 

distribution of bearded seals in this 

region (Johnson et al. 1966, Burns 1967, 

Heptner et al. 1976, Burns and Frost 

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

In spring, as the sea ice begins to melt, 

many of the bearded seals that 

overwintered in the Bering Sea migrate 

northward with the receding ice through 

the Bering Strait and into the Chukchi 

and Beaufort seas and spend the 

summer and early fall foraging in these 

waters, while an unknown proportion of 

these seals, in particular juveniles, may 

remain in the Bering Sea. 

Studies that have inferred locations of 

foraging activity for bearded seals tagged 

in Alaska based on movement and dive 

data (Boveng and Cameron 2013, Gryba 

et al. 2019, Quakenbush et al. 2019, 

Olnes et al. 2020) show some overlap in 

the areas used extensively by individual 

seals, including for some seals near the 

100-m isobath in the Bering Sea in July 

to November. However, the spatial 

patterns of habitat use and locations of 

intensive use can vary substantially 

among individuals (e.g., Quakenbush et 

al. 2019, Olnes et al. 2020). The results 

of these studies represent use by 

primarily juvenile tagged bearded seals, 

and it is unknown how representative 

they are for older animals. Bearded seal 

sightings recorded during aerial surveys 

of the northeastern Chukchi and 

Beaufort seas off Alaska conducted in 

summer and/or fall from 1982 to 2019 

(formerly to monitor the fall migration 

of bowhead whales and more recently to 

document the distribution and relative 

abundance of whales and other marine 

mammals) were distributed over the 

continental shelf in both coastal and 

offshore areas (Alaska Fisheries Science 

Center 2020). 

Some bearded seals (largely 

juveniles), have been observed or 

tracked via satellite telemetry in small 

coastal bays, lagoons, and estuaries, 

near river mouths, and up some rivers, 

in particular during late summer and 

fall (e.g., Burns 1981, Nelson 1981, 

Oceana and Kawerak 2014, Huntington 

et al. 2016, Northwest Arctic Borough 

2016, Huntington et al. 2017a, 2017b, 

Huntington et al. 2017d, Gryba et al. 

2019, Quakenbush et al. 2019, 

Quakenbush 2020b), although the 

majority of Alaska Native hunters 

interviewed at Utqiag ̇vik indicated that 

all ages of bearded seals use rivers and 

creeks (Gryba et al. 2021). Indigenous 

Knowledge (IK) documented for several 

communities in northern and western 

Alaska indicates that in these areas, 

bearded seals feed on fishes such as 

whitefish species, cods, smelts, herring, 

and salmon, as well as shrimps and 

clams (Oceana and Kawerak 2014, 

Huntington et al. 2016, 2017c). 

As the ice forms in the fall and winter, 

many bearded seals move south with 

the advancing ice edge through the 

Bering Strait into the Bering Sea where 

they spend the winter (Burns 1967, 

Heptner et al. 1976, Burns and Frost 

1979, Burns 1981). Bearded seal 

vocalizations were recorded throughout 

winter and spring in the northeastern 

Chukchi Sea and western Beaufort Sea, 

indicating that some bearded seals 

overwinter in these seas (Hannay et al. 

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

2014, MacIntyre et al. 2015, FrouinMouy et al. 2016, Berchok et al. 2019, 

Vate Brattstro ̈m et al. 2019). Intermittent 

coastal leads deep in the ice pack of 

these seas provide at least marginal 

habitat for low densities of females to 

whelp in the spring (Burns and Frost 

1979, Cameron et al. 2010). 

Of the bearded seals tagged in Alaska 

to date, few have been adults, and the 

majority were tagged in Norton Sound 

and Kotzebue Sound. Tracking data for 

most tagged seals have shown an overall 

pattern of broad latitudinal movement 

northward in summer with receding sea 

ice and southward in fall as sea ice 

advances (Frost et al. 2008, Boveng and 

Cameron 2013, Breed et al. 2018, 

Cameron et al. 2018, Quakenbush et al. 

2019). However, Quakenbush et al. 

(2019) and Olnes et al. (2020) found that 

the extent of these movements for seals 

tracked during their study depended on 

where the seals were tagged. Two 

juveniles tagged in the western Beaufort 

Sea did not travel south of about 70° N 

(in the Chukchi Sea) and one juvenile 

tagged in Kotzebue Sound remained 

there during winter, whereas juveniles 

tagged in Norton Sound made more 

extensive latitudinal movements 

(Quakenbush et al. 2019). Similarly, an 

adult male tagged in the western 

Beaufort Sea near Utqiag ̇vik in the fall 

of 2019 remained in nearshore areas 

southeast of Utqiag ̇vik and in the 

vicinity of Barrow Canyon and 

overwintered near Barrow Canyon in 

two consecutive years, a habitat use 

pattern also shown by one of the two 

subadults that remained north of about 

70° N (Quakenbush et al. 2019, 

Quakenbush 2020b; ADF&G, 2021, 

unpublished data). 

Breed et al. (2018) and Cameron et al. 

(2018) found that from late fall to early 

spring, juvenile bearded seals tagged in 

Kotzebue Sound from 2004 to 2009 

selected habitat at the southern ice edge, 

which depending on ice conditions may 

extend to near the shelf break during 

late winter and early spring. In contrast, 

using data from juvenile bearded seals 

tagged mainly in Norton Sound during 

the more recent 2014 to 2018 period, 

Olnes et al. (2021) reported differences 

in habitat selection in both winter and 

spring that appear to be the result of 

recent changes to the distribution of sea 

ice concentrations and habitats. 

Although ice concentrations were 

similar in both periods, in the more 

recent period, those ice concentrations 

were located well north of the ice edge, 

and some individuals overwintered in 

the Chukchi and Beaufort seas 

(Quakenbush et al. 2019, Olnes et al. 

2021). 

Reproduction 

During the winter and spring, 

pregnant female bearded seals find 

broken pack ice over shallow areas on 

which to whelp, nurse pups, and molt 

(Fay 1974, Heptner et al. 1976, Burns 

1981, Andersen et al. 1999, Kovacs 

2002). Females with pups are generally 

solitary, tending not to aggregate 

(Heptner et al. 1976, Kovacs et al. 1996). 

After giving birth on the ice, female 

bearded seals feed throughout the 

lactation period of about 24 days, 

continuously replenishing fat reserves 

lost while nursing pups (Holsvik 1998, 

Andersen et al. 1999, Krafft et al. 2000). 

Pups nurse on the ice (Lydersen et al. 

1994, Andersen et al. 1999, Kovacs et al. 

2019), and by the time they are a few 

days old, they spend half their time in 

the water (Lydersen et al. 1994, Gjertz 

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

develop diving, swimming, and foraging 

skills over the nursing period and 

beyond (Lydersen et al. 1994, Gjertz et 

al. 2000, Watanabe et al. 2009, Hamilton 

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

pups have been observed from midMarch to early May (Cameron et al. 

2010). A peak in births in the Bering 

Strait and central Chukchi Sea is 

estimated to occur in late April (Johnson 

et al. 1966, Tikhomirov 1966, Heptner et 


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al. 1976, Burns 1981, Cameron et al. 

2010). 

Bearded seals vocalize intensively 

during the breeding season, which 

Cameron et al. (2010) estimated extends 

from April into June. Passive acoustic 

monitoring studies in the northern 

Bering, Chukchi, and Beaufort seas off 

Alaska have recorded a variable 

progressive increase in bearded seal call 

activity over winter, with peak rates 

occurring from about mid-March or 

April to late June in the Chukchi and 

Beaufort seas (Hannay et al. 2013, 

MacIntyre et al. 2013, Jones et al. 2014, 

MacIntyre et al. 2015, Frouin-Mouy et 

al. 2016, Berchok et al. 2019, Vate 

Brattstro ̈m et al. 2019), and from about 

mid-March to the middle or end of May 

in the northern Bering Sea (MacIntyre et 

al. 2015, Chou et al. 2019). Some male 

bearded seals maintain a single small 

aquatic territory during the breeding 

season, while others roam across larger 

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

Parijs and Clark 2006). Male 

vocalizations during the breeding 

season are considered to function to 

maintain aquatic territories and/or 

advertise breeding condition (Ray et al. 

1969, Cleator et al. 1989, Van Parijs et 

al. 2003, Van Parijs and Clark 2006, 

Risch et al. 2007). 

Surveys indicate that in the Bering 

Sea during spring, bearded seals use 

nearly the entire extent of pack ice over 

the continental shelf. The highest 

densities of bearded seals in early spring 

have typically been observed between 

St. Lawrence and St. Matthew Islands, 

with lower densities reported southeast 

of St. Matthew Island and in the 

southern Gulf of Anadyr (Krylov et al. 

1964, Kosygin 1966b, Braham et al. 

1981, Cameron and Boveng 2007, 

Cameron et al. 2008). In early spring of 

some years, high densities of bearded 

seals have also been observed north and 

west of St. Lawrence Island (Braham et 

al. 1977, Fedoseev et al. 1988, Cameron 

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

these aggregations was not documented, 

so it is not known if these are whelping 

areas. However, spring aerial surveys of 

the Bering Sea conducted in 2012 and 

2013 documented numerous bearded 

seals, including pups, in Norton Sound 

and the Chirikov Basin north of St. 

Lawrence Island, extending to well 

south of St. Matthew and Nunivak 

Islands (NMFS Marine Mammal 

Laboratory, unpublished data). The 

subsistence harvest of bearded seal pups 

by hunters in Quinhagak also suggests 

that some bearded seals may whelp 

south of Nunivak Island (Coffing et al. 

1999). Existing information on the 

spring distribution of bearded seals is 

otherwise limited. Aerial surveys 

conducted in parts of the Chukchi Sea 

during April and May of 2016 

documented numerous bearded seals, 

including some pups, in the Hope Basin 

south of Point Hope, and less frequent 

sightings of bearded seals (which 

included a few pups) north of Point 

Hope (NMFS Marine Mammal 

Laboratory, unpublished data). Bearded 

seals were also more commonly 

observed south of Point Hope during 

aerial surveys flown primarily along the 

coast of the northeastern Chukchi Sea in 

late May to early June of 1999 and 2000 

(Bengtson et al. 2005). However, the 

age-sex composition of bearded seals 

observed was not reported and this 

survey was timed toward the molting 

period. 

Molting 

Adult and juvenile bearded seals molt 

annually, a process that for adults 

typically begins shortly after mating, as 

it does with other mature phocid or 

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

Ling 1972, King 1983, Yochem and 

Stewart 2002). Juvenile bearded seals 

have been reported to molt earlier than 

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

1976, Fedoseev 2000). Bearded seals 

haul out of the water onto the ice more 

frequently during molting (Burns 1981, 

Fedoseev 2000, Olnes et al. 2020), a 

behavior that facilitates higher skin 

temperatures and may accelerate 

shedding and regrowth of hair and 

epidermis (He ́roux 1960, Feltz and Fay 

1966, Fay 1982). A captive bearded seal 

showed only a slight elevation in 

metabolic rate during molt (Thometz et 

al. 2021), but also a prolonged molt, 

consistent with natural history 

descriptions. In this way, the species 

may avoid the pulse of energy demand 

experienced by ringed seals (Pusa 

hispida) and spotted seals (Phoca 

largha), which complete their molt in 

about one quarter of the time. The 

molting period of bearded seals in the 

Bering, Chukchi, and Beaufort seas off 

Alaska has not been specifically 

investigated, but has been described as 

protracted, occurring between April and 

August with a peak in May and June 

(Tikhomirov 1964, Kosygin 1966a, 

Burns 1981). This observed timing of 

molting coincides with the period in 

which bearded seals that overwintered 

in the Bering Sea migrate long distances 

to summering grounds in the Chukchi 

and Beaufort seas. Measures of body 

condition and blubber thickness are at 

their annual minimums following the 

molt (Burns and Frost 1979, Smith 1981, 

Andersen et al. 1999). 

Diet 

Bearded seals feed primarily on 

benthic organisms, including a variety 

of invertebrates dwelling on the surface 

of the seabed (epifauna) and in the 

seabed substrate (infauna), and some 

fishes found on or near the sea bottom 

(demersal). They are also able to switch 

their diet to include schooling pelagic 

(non-demersal) fishes when 

advantageous (Antonelis et al. 1994). A 

wide variety of prey species have been 

reported for bearded seals of the 

Beringia DPS, though the bulk of their 

diet appears to consist of relatively few 

major prey types. Bearded seals of the 

Beringia DPS primarily feed on bivalve 

mollusks and crustaceans like crabs and 

shrimps, while fishes such as sculpins, 

cods, and flatfishes can also be a 

significant component of their diet 

(Kenyon 1962, Johnson et al. 1966, 

Burns 1967, Kosygin 1971, Burns and 

Frost 1979, Lowry et al. 1979, 1980, 

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

Fedoseev 2000, Dehn et al. 2007, 

Quakenbush et al. 2011, Crawford et al. 

2015, Bryan 2017, Quakenbush 2020a). 

Quakenbush et al. (2011) reported that 

in the Bering and/or Chukchi seas, the 

diet of bearded seals shifted toward an 

increased proportion and diversity of 

fish between the periods 1961 to 1979 

and 1998 to 2009. 

Specific bearded seal prey species 

differ somewhat between geographic 

locations. This variability is likely a 

result of differences in prey assemblages 

in each region (Burns and Frost 1979, 

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

Diet composition of bearded seals has 

been observed to change seasonally 

(Johnson et al. 1966, Burns and Frost 

1979, Quakenbush et al. 2011, 

Quakenbush 2020a), and has also been 

reported to vary interannually as well as 

longer-term (Lowry et al. 1980, 

Quakenbush et al. 2011, Carroll et al. 

2013, Crawford et al. 2015, Quakenbush 

2020a). Further, bearded seal diet 

composition may be influenced by 

interannual variations in sea ice 

conditions (Hindell et al. 2012). No 

differences have been shown in the 

feeding habitats of male and female 

bearded seals (Kelly 1988); however, 

prey composition of the bearded seal’s 

diet has shown some variation with age 

(Burns and Frost 1979, Lowry et al. 

1980, Quakenbush et al. 2011, Crawford 

et al. 2015, Quakenbush 2020a). 

Although major prey types documented 

in the diets of all bearded seal age 

classes in the Bering and Chukchi seas 

included crabs, shrimps, clams, and 

fishes, differences among age classes 

were reported in the relative importance 

of certain prey types and prey species 


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consumed (based on frequency of 

occurrence and/or volume) (Burns and 

Frost 1979, Lowry et al. 1980, 

Quakenbush et al. 2011, Crawford et al. 

2015, Quakenbush 2020a). 

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 bearded seal 

(Cameron et al. 2010), our proposed and 

final rules to list the Beringia and 

Okhotsk DPSs of the bearded seal as 

threatened under the ESA (75 FR 77496, 

December 10, 2010; 77 FR 76740, 

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

reports, peer reviewer and public 

comments on the 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 IK of 

Alaska Native subsistence users. 

To identify specific areas that may 

qualify as critical habitat for bearded 

seals of the Beringia DPS, in accordance 

with 50 CFR 424.12(b), we followed a 

five-step process: (1) Identify the 

geographical area occupied by the 

species at the time of listing; (2) identify 

physical or biological habitat features 

essential to the conservation of the 

species; (3) determine the specific areas 

within the geographical area occupied 

by the species that contain one or more 

of the physical 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 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 

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 sightings and 

movements of bearded seals of the 

Beringia DPS, we identified the range of 

the Beringia DPS in the final ESA listing 

rule (77 FR 76740; December 28, 2012) 

as the Arctic Ocean and adjacent seas in 

the Pacific Ocean between 145° E 

longitude and 130° W longitude, except 

west of 157° E longitude, or west of the 

Kamchatka Peninsula, where the 

Okhotsk DPS of the bearded seal is 

found. As noted previously, we cannot 

designate areas outside U.S. jurisdiction 

as critical habitat. Thus, the 

geographical area under consideration 

for this designation is limited to areas 

under U.S. jurisdiction that the Beringia 

DPS occupied at the time of listing. This 

area extends to the outer boundary of 

the U.S. Exclusive Economic Zone (EEZ) 

in the Chukchi and Beaufort seas and 

south over the continental shelf in the 

Bering Sea (Cameron et al. 2010). 

Physical and Biological Features 

Essential to the Conservation of the 

Species 

The statutory definition of 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 lifehistory needs of the species. The 

regulations provide additional details 

and examples of such features. 

Based on the best scientific 

information available regarding the 

natural history of bearded seals and the 

habitat features that are essential to 

support the species’ life-history needs, 

we have identified the following 

physical and biological features that are 

essential to the conservation of the 

Beringia DPS of bearded seals within 

U.S. waters occupied by the species. 

(1) Sea ice habitat suitable for 

whelping and nursing, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 25 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

Sea ice habitat suitable for bearded 

seal whelping and nursing is essential to 

the conservation of the Beringia DPS 

because the seals rely on sea ice as a dry 

platform for whelping, nursing, and 

rearing pups in proximity to benthic 

foraging habitats. Further, hauling out 

on the ice reduces thermoregulatory 

demands, and is thus especially 

important for growing pups, which have 

a disproportionately large skin surface 

and rate of heat loss in the water 

(Harding et al. 2005, Cameron et al. 

2010). If suitable ice cover is absent 

from shallow-water feeding areas during 

whelping and nursing, maternal females 

would be forced to seek sea ice over 

deeper waters, with less access to 

benthic food, or may haul out on shore, 

with potential increased risk of 

disturbance, predation, intra- and 

interspecific competition, and disease 

transmission. However, we are not 

aware of any occurrence of bearded 

seals whelping or nursing pups on land. 

Rearing pups in poorer foraging grounds 

would also require mothers to forage for 

longer periods to replenish energy 

reserves lost while nursing and/or 

compromise their own body condition, 

both of which could impact the transfer 

of energy to offspring and the survival 

of pups, mothers, or both. In addition, 

learning to forage in sub-optimal habitat 

could impair a pup’s ability to learn 

effective foraging skills, and hence, 

impact its long-term survival. 

To identify ice concentrations 

(percentage of ocean surface covered by 

sea ice) that we consider essential for 

bearded seal whelping and nursing, we 

relied upon three studies in the Bering 

Sea that estimated ice concentrations 

selected by bearded seals in the spring, 

based on aerial survey observations of 

bearded seals hauled out on ice. 

Simpkins et al. (2003) found that 

between St. Lawrence and St. Mathew 

Islands in March, bearded seals selected 

areas with ice concentrations of 70 to 90 

percent. Another study conducted in a 

broader area of the Bering Sea south of 

St. Lawrence Island in April and May 

found the highest probability of bearded 

seal occurrence was in ice 

concentrations of 75 to 100 percent, but 

only the 0 to 25 percent ice class had 

substantially lower probability of 

occurrence (Ver Hoef et al. 2014). 

Informed by these two studies 

(specifically, Simpkins et al. (2003) and 

Ver Hoef et al. (In review), later 


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published as Ver Hoef et al. (2014)), 

Cameron et al. (2010) defined the 

minimum ice concentration sufficient 

for bearded seal whelping and nursing 

as 25 percent. Subsequently, a third 

paper by Conn et al. (2014), which 

established analytical methods to 

estimate the abundance of ice-associated 

seals from survey data collected across 

the U.S. Bering Sea in April and May, 

showed that in April bearded seals 

occupied ice concentrations exceeding 

95 percent. Bearded seal abundance 

peaked in ice concentrations between 

about 50 and 75 percent, and abundance 

was lowest in ice concentrations largely 

below 25 percent. Based on the 

information from these studies, we 

concluded that sea ice habitat suitable 

for bearded seal whelping and nursing 

is of at least 25 percent ice 

concentration. 

Cameron et al. (2010) defined the core 

distribution of bearded seals as those 

areas of the known extent of the species’ 

distribution that are in waters less than 

500 m deep. However, as discussed 

above, the bearded seal’s effective 

habitat is generally restricted to areas 

where seasonal sea ice occurs over 

relatively shallow waters, typically less 

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

portion of its range, the Beringia DPS 

occurs largely in waters less than 200 m 

deep. Also, bearded seals favor ice with 

access to the water, and tend to avoid 

continuous areas of landfast ice and 

unbroken drifting ice. Therefore, we 

conclude that sea ice habitat essential 

for bearded seal whelping and nursing 

occurs in areas with waters 200 m or 

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

sea ice other than landfast ice; pack ice 

is also termed drift ice) of at least 25 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

(2) Sea ice habitat suitable as a 

platform for molting, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 15 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

Sea ice habitat suitable for molting is 

essential to the conservation of the 

Beringia DPS because molting is a 

biologically important, energy-intensive 

process that could incur increased 

energetic costs if it occurs in water or 

could involve increased risk of 

predation (due to the absence of readily 

accessible escape routes to avoid 

predators, i.e., natural opening in the 

sea ice), intra- and inter-specific 

competition, and the potential for 

disease transmission if it occurs on 

land. In light of the studies referenced 

above by Simpkins et al. (2003) and Ver 

Hoef et al. (In review) (later published 

as Ver Hoef et al. (2014)) documenting 

spring ice concentrations selected by 

bearded seals, and based on the 

assumption that sea ice requirements for 

molting in May and June are less 

stringent than those for whelping and 

nursing pups, Cameron et al. (2010) 

concluded that 15 percent ice 

concentration would be minimally 

sufficient for molting. As discussed 

above, the U.S. range of the Beringia 

DPS is largely in waters 200 m or less 

in depth, and the preferred depth range 

of bearded seals is less than 200 m. 

Further, bearded seals favor ice with 

access to the water, and tend to avoid 

continuous areas of landfast ice and 

unbroken drifting ice. Therefore, we 

conclude that sea ice essential for 

molting occurs in areas with waters 200 

m or less in depth containing pack ice 

of at least 15 percent concentration and 

providing bearded seals access to those 

waters from the ice. 

(3) Primary prey resources to support 

bearded seals: Waters 200 m or less in 

depth containing benthic organisms, 

including epifaunal and infaunal 

invertebrates, and demersal fishes. 

Primary prey resources to support 

bearded seals in waters 200 m or less in 

depth are essential to the conservation 

of the Beringia DPS because bearded 

seals rely on those prey resources to 

meet their annual energy budgets. As 

discussed above, bearded seals have a 

diverse diet with a large variety of prey 

items throughout their range, and are 

considered benthic generalists. The 

proportion of benthic dives made by 

tagged juvenile bearded seals (n=14) 

ranged from 0.66 to 0.93, indicating that 

most but not all foraging was done near 

the bottom (Olnes et al. 2020). 

Quakenbush et al. (2011) found that a 

diverse assemblage of invertebrates (63 

taxa) and fish (20 taxa), associated with 

both benthic and pelagic habitats, was 

consumed by bearded seals sampled in 

the Bering and Chukchi seas between 

1961 and 2009. Major prey types 

reported for bearded seals in the Bering, 

Chukchi, and western Beaufort seas 

include epifaunal crustaceans like crabs 

and shrimps as well as infaunal 

invertebrates like clams and marine 

worms, but fishes such as sculpins, 

Arctic cod (Boreogadus saida), and 

saffron cod (Eleginus gracilis) can also 

be a significant component (Johnson et 

al. 1966, Burns 1967, Kosygin 1971, 

Burns and Frost 1979, Lowry et al. 1979, 

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

2007, Quakenbush et al. 2011, Crawford 

et al. 2015). 

Stomach content analysis of bearded 

seals from the Alaska Native subsistence 

harvest in the northern Bering and 

Chukchi seas during 2000 to 2019 

(n=834) forms the most comprehensive 

source for description of recent and 

current diets of these seals in U.S. 

waters (Quakenbush 2020a). The results 

reported by age class (non-pup versus 

pup), season (open-water vs. icecovered), and sampling period (2000 to 

2015 versus 2016 to 2020) for common 

prey types (prey items identified in 20 

percent or more of stomachs) show that 

bearded seals eat many species of fish 

and invertebrates. Sample-weighted 

averages across age class, season, and 

sampling periods indicate invertebrate 

remains were found in most (96 percent) 

of the bearded seal stomachs. The most 

prevalent invertebrate groups were 

shrimps (71 percent of stomachs; mostly 

family Crangonidae), crabs (infraorder 

Brachyura, 52 percent of stomachs), and 

bivalve mollusks (45 percent of 

stomachs). The most prevalent fish 

groups were sculpins (family Cottidae, 

63 percent of stomachs), and righteye 

flounders (family Pleuronectidae, 48 

percent of stomachs). Small cods were 

also important (family Gadidae, 46 

percent of stomachs). All of these 

prevalent fish are demersal, spending 

much of their lives on or near the 

bottom. Arctic cod was the most 

prevalent small cod (saffron cod was 

also identified as a common prey 

species). It is more pelagic than the 

other most prevalent fishes identified in 

the seals’ diet and is often associated 

with the under surface of the sea ice; 

whether bearded seals catch Arctic cod 

near the bottom, consistent with their 

main foraging habits, has not been 

determined. 

As described below in the section, 

Summary of Changes From the 

Proposed Designation, peer reviewer 

and public comments led us to reevaluate and refine the proposed 

primary prey resources essential feature, 

which we identified in the proposed 

rule as benthic organisms, including 

epifaunal and infaunal invertebrates, 

and demersal and schooling pelagic 

fishes. The U.S. range of the Beringia 

DPS is largely in waters 200 m or less 

in depth and the preferred depth range 

of bearded seals is less than 200 m (see 

General Seasonal Distribution and 

Habitat Use section). We therefore 

continue to find that it is appropriate to 

identify the maximum water depth of 

this feature as 200 m. As we stated in 

the proposed rule, the broad number of 

prey species consumed by bearded seals 

makes specification of particular 

essential prey species impracticable. 

However, in considering the best 

scientific data available on the diets of 

bearded seals in Alaska, we recognized 


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that the high prevalence of benthic 

invertebrates and demersal fishes 

reported reflects the seals’ reliance on 

seafloor prey communities in particular 

to meet their annual energy budgets. We 

therefore conclude that the primary prey 

resources essential to the conservation 

of the Beringia DPS are benthic 

organisms, including epifaunal and 

infaunal invertebrates, and demersal 

fishes found in water depths of 200 m 

or less. We find that this level of 

specificity, identifying prey types 

known to be part of the diet of Beringia 

DPS bearded seals but not limiting the 

definition to specific prey species or a 

limited subset of prey types, is most 

appropriate for defining this essential 

feature based on the best scientific data 

available. Because bearded seals feed on 

a variety of benthic prey items and 

temporal differences in diet 

composition have been reported 

(Cameron et al. 2010, Quakenbush et al. 

2011, Crawford et al. 2015, Quakenbush 

2020a), we conclude that areas in which 

the primary prey resources essential 

feature occurs are those that contain one 

or more of these 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 

Proposed Designation, after refining the 

proposed definition of the primary prey 

resources essential feature, and in 

response to public comments and 

concerns regarding our proposed 

delineation of the boundaries of critical 

habitat with respect to the primary prey 

resources essential feature, we reevaluated the best scientific data 

available and the approach we used to 

identify those boundaries to ensure that 

they were drawn appropriately. As a 

result of this evaluation, we now 

identify one specific area that contains 

this feature in addition to the sea ice 

essential features as described in this 

section. 

As we explain below, the essential 

features of bearded seal critical habitat, 

in particular the sea ice essential 

features, are dynamic and their 

locations are variable on both spatial 

and temporal scales. Bearded 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 as critical 

habitat, within which all of the 

identified essential features can be 

found in any given year. 

We first focused on identifying where 

the essential features that support the 

species’ life history functions of 

whelping, nursing, and molting occur 

(i.e., specific areas that contain the sea 

ice essential features). As discussed 

above, bearded seals generally maintain 

an association with drifting sea ice, and 

many seals migrate seasonally to 

maintain access to this ice. Bearded seal 

whelping and nursing take place in the 

Bering Sea while ice cover is at or near 

its peak extent. Bearded seal molting 

overlaps with the periods of whelping, 

nursing, pup maturation, and breeding, 

and continues into early summer as the 

pack ice edge recedes north through the 

Bering Strait and into the Chukchi and 

Beaufort seas. Therefore, we considered 

where the sea ice essential features 

occur in all three seas. 

The dynamic nature of sea ice and the 

spatial and temporal variations in sea 

ice cover constrain our ability to map 

precisely the specific geographic 

locations where the sea ice essential 

features occur. Sea ice characteristics 

such as ice extent and ice concentration 

vary spatiotemporally ((e.g., Frey et al. 

2015). Thus, the specific geographic 

locations of essential sea ice habitat 

used by bearded seals vary from year to 

year, or even day to day, depending on 

many factors, including time of year, 

local weather (e.g., wind speed/ 

direction), and oceanographic 

conditions (e.g., Burns and Frost 1979, 

Frey et al. 2015, Gadamus et al. 2015). 

In addition, the duration that sea ice 

habitat essential for whelping and 

nursing, or for molting, is present in any 

given location can vary annually 

depending on the rate of ice melt and 

other factors. The temporal overlap of 

bearded seal molting with whelping and 

nursing, combined with the dynamic 

nature of sea ice, also makes it 

impracticable to separately identify 

specific areas where each of these 

essential features occur. However, it is 

unnecessary to distinguish between 

specific areas containing each sea ice 

essential feature because the ESA 

permits the designation of critical 

habitat where one or more essential 

features occur. 

Bearded seals of the Beringia DPS can 

range widely, which, combined with the 

dynamic variations in sea ice 

conditions, results in individuals 

distributing broadly and using sea ice 

habitats within a range of suitable 

conditions. We integrated these physical 

and biological factors into our 

identification of specific areas where 

one or both sea ice essential features 

occur based on the information 

currently available on the seasonal 

distribution and movements of bearded 

seals during the annual period of 

reproduction and molting, the 

maximum depth where the sea ice 

essential features occur, and satellitederived estimates of the position of the 

sea ice edge and extent and seasonality 

of landfast ice over time. Although this 

approach allowed us to identify specific 

areas that contain one or both of the sea 

ice essential features at certain times, 

the available data supported delineation 

of specific areas only at a coarse scale. 

Consequently, we delineated a single 

specific area that contains the sea ice 

features essential to the conservation of 

the Beringia DPS, as follows. 

We first identified the southern 

boundary of this specific area. The 

information discussed above regarding 

the seasonal distribution and 

movements of bearded seals in the 

Bering Sea suggests that sea ice essential 

for whelping and nursing (and 

potentially for molting) extends south of 

St. Matthew and Nunivak Islands. But a 

more precise southern boundary for this 

habitat is unavailable because existing 


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information is limited on the spatial 

distribution and whelping locations of 

bearded seals in the Bering Sea during 

spring, and the temporal and spatial 

distribution of sea ice cover, which 

influences bearded seal distributions, is 

variable between years. 

We therefore turned to Sea Ice Index 

data maintained by the National Snow 

and Ice Data Center (NSIDC) for 

information on the estimated median 

position of the ice edge in the Bering 

Sea during April (Fetterer et al. 2017, 

Version 3.0, accessed November 2019), 

which is the peak month for bearded 

seal whelping activity (peak molting for 

adults occurs later in the spring). This 

estimated median ice edge is derived by 

the NSIDC from a time series of satellite 

records for the 30-year reference period 

from 1981 to 2010. To further inform 

our evaluation, we also examined the 

position of the median ice edge in April 

for the more recent 30-year period from 

1990 to 2019, which was estimated 

using methods and data types similar to 

those used for the Sea Ice Index. We 

note that the two most recent years 

included in this 30-year period had 

record low ice extent in the Bering Sea 

(Stabeno and Bell 2019). 

The April median ice edge for the 

1981 to 2010 reference period from the 

Sea Ice Index is located approximately 

170 kilometers (km) southwest of St. 

Matthew Island and 175 km south of 

Nunivak Island, and it extends eastward 

across lower Kuskokwim Bay to near 

Cape Newenham, a headland between 

Kuskokwim Bay and Bristol Bay. 

Because bearded seals use nearly the 

entire extent of pack ice over the Bering 

Sea shelf in spring, depending upon ice 

conditions in a given year, some 

bearded seals may use sea ice for 

whelping south of this median ice edge. 

But we concluded that the variability in 

the annual extent and timing of sea ice 

in this southernmost portion of the 

bearded seal’s range in the Bering Sea 

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

2012, Frey et al. 2015) renders these 

waters unlikely to contain the sea ice 

essential features on a consistent basis 

in more than limited areas. The position 

of the April median ice edge for the 

more recent 1990 to 2019 period is 

generally similar to that of the Sea Ice 

Index, except that the ice edge has a 

wide inverted U-shape in Kuskokwim 

Bay, and as a result, there is roughly 

half as much area with sea ice there. 

Given the reduction in sea ice in 

Kuskokwim Bay between the reference 

period used for the Sea Ice Index and 

the more recent period, we also 

concluded that these waters appear 

unlikely to contain the sea ice essential 

features on a consistent basis in more 

than limited areas. 

As such, we delineated the southern 

boundary to reflect the estimated 

position of the April median ice edge 

west of Kuskokwim Bay. To simplify the 

southern boundary for purposes of 

delineation on maps, we modified the 

ice edge contour line for the 1990 to 

2019 period as follows: (1) Intermediate 

points along the contour line between 

its intersection point with the seaward 

limit of the U.S. EEZ (60°32′26′′ N/ 

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

contour line turns eastward (57°58′ N/ 

170°25′ W) were removed to form the 

segment of the southern boundary that 

extends from the seaward limit of the 

U.S. EEZ southeastward approximately 

575 km; (2) intermediate points along 

the contour line between the point 

where the contour line turns eastward 

and the approximate point on the west 

side of Kuskokwim Bay where the 

contour line turns northeastward (58°29′ 

N/164°46′ W) were removed to form a 

second segment of the southern 

boundary that extends eastward 

approximately 335 km; and (3) these 

two line segments were connected to the 

mainland by an approximately 200-km 

line segment that follows 164°46′ W 

longitude to near the west side of the 

mouth of the Kolovinerak River, about 

50 km east of Nunivak Island. This 

editing produced a simplified southern 

boundary that retains the general shape 

of the original ice edge contour line 

west of Kuskokwim Bay. 

We then identified the northern 

boundary of the specific area that 

contains one or both of the sea ice 

essential features. As discussed above 

(see Description and Natural History 

section), limited spring aerial survey 

information, satellite tracking data for 

tagged bearded seals, and year-round 

passive acoustic recordings of bearded 

seal vocalizations suggest that some 

portion of the Beringia DPS overwinters 

in the Chukchi and Beaufort seas. In 

addition, many of the bearded seals that 

overwinter in the Bering Sea migrate 

northward with the receding ice edge in 

the spring and early summer into the 

Chukchi and Beaufort seas, coincident 

with the timing of molting. Therefore, 

consistent with the maximum depth 

identified for the sea ice essential 

features, we defined the northern 

boundary as the 200-m isobath over the 

continental shelf break in the Chukchi 

and Beaufort seas (i.e., the northern 

extent of waters 200 m or less in these 

seas), and the boundaries to the east and 

west as the limit of the U.S. EEZ. Sea 

ice concentrations suitable for 

whelping, nursing, and molting occur 

over waters extending up to and beyond 

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

2017, Sea Ice Index Version 3.0, 

accessed November 2019). We note that 

Canada contests the limits of the U.S. 

EEZ in the eastern Beaufort Sea, 

asserting that the line delimiting the two 

countries’ EEZs should follow the 141st 

meridian out to a distance of 200 

nautical miles as opposed to an 

equidistant line that extends seaward 

perpendicular to the coast at the U.S.- 

Canada land border. 

Sea ice habitat identified as essential 

for bearded seal whelping, nursing, and 

molting is found in waters 200 m or less 

in depth containing pack ice, i.e., sea ice 

other than landfast ice, of suitable 

concentrations. We therefore considered 

the best scientific data available 

regarding the spatial extent of landfast 

ice and its annual cycle in the Beaufort, 

Chukchi, and Bering seas to inform our 

delineation of the appropriate 

shoreward boundary for the specific 

area containing one or both sea ice 

essential features. In the following 

discussion of landfast ice, we refer to 

the northeastern Chukchi Sea (from 

Wainwright to Point Barrow) and 

Beaufort Sea as the Beaufort region, the 

Chukchi Sea extending south of 

Wainwright to the tip of the northern 

Seward Peninsula as the Chukchi 

region, and the Bering Sea from there 

south to Kuskokwim Bay as the Bering 

region. Analysis of data derived using 

satellite imagery for each of twelve 

annual cycles between 1996 and 2008 

indicates that landfast ice in the 

Beaufort region extended farther from 

shore and occurred in deeper water than 

in the Chukchi and Bering regions 

(Mahoney et al. 2012, Mahoney et al. 

2014, Jensen et al. 2020). 

Mahoney et al. (2014) found that the 

water depth at the seaward landfast ice 

edge in the Beaufort region developed 

over the course of winter to a single 

well-defined mode around 20 m, in 

agreement with earlier findings by 

Mahoney et al. (2007), although there 

was significant variability in water 

depths at the seaward landfast ice edge 

and multiple modes at a local scale 

(some of which is related to differences 

in local configuration of the coastline 

and bathymetry, as is the case more 

broadly across the Beaufort, Chukchi, 

and Bering seas). Thus, overall there is 

similarity between the average seaward 

landfast ice edge location and isobaths 

near 20 m in the Beaufort region 

(Mahoney et al. 2007, Mahoney et al. 

2012, Mahoney et al. 2014). In contrast, 

the distribution of water depths at the 

seaward landfast ice edge in the 

Chukchi region was found to be broader 

and less symmetric than in the Beaufort 

region (modal water depth at the 


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seaward landfast ice edge was 

approximately 12 to 13 m), and showed 

substantial variation in modal water 

depth at the seaward landfast ice edge 

in each subregion (Mahoney et al. 2012, 

Mahoney et al. 2014). Hence, the modal 

depth at the seaward landfast ice edge 

in the Chukchi region is highly locally 

specific and, therefore, the position of 

the seaward landfast ice edge is not well 

represented by a particular isobath 

(Mahoney et al. 2012, Mahoney et al. 

2014). Finally, Jensen et al. (2020) 

reported that in the Bering region, the 

modal water depths at the seaward 

landfast ice edge varied by subregion 

(for the northern, central, and southern 

subregions, respective values were 13 

m, 7 m, and 8.5 m). They attributed this 

variation to differing conditions in 

nearshore bathymetry and physical 

geography (e.g., presence of coastal 

features such as lagoons and sheltered 

embayments). 

To assess changes in landfast ice in 

the Chukchi and Beaufort regions, 

Mahoney et al. (2014) compared data 

from their study with late winter 

maximum seaward landfast ice edges 

mapped by Stringer (1978) for the 

period 1973 to 1976. They found that in 

the Beaufort region, the late winter 

maximum seaward landfast ice edges 

delineated for the period 1973 to 1976 

were within the same range as those 

delineated for the period 1996 to 2008. 

However, in the Chukchi region, there 

was evidence of a significant reduction 

in the late winter maximum extent of 

landfast ice (Mahoney et al. 2014). In 

addition, trends were identified that in 

general indicate an earlier end (and later 

start) to the landfast ice season in the 

both regions (Mahoney et al. 2012, 

Mahoney et al. 2014). A similar 

comparison is not available for the 

Bering region; however, Jensen et al. 

(2020) reported a trend in earlier 

landfast ice breakup (and later 

formation) from 1996 to 2008 in two of 

the three Bering subregions (breakup of 

landfast occurred between March and 

May, but persistence of this ice varied 

with local physical geography). They 

also noted that the results of their 

analysis for the Bering region do not 

account for trends in recent periods of 

sea ice decline in this region (e.g., 

Perovich et al. 2019a, Perovich et al. 

2019b, Stabeno and Bell 2019). IK of 

landfast ice conditions documented for 

several coastal communities in the 

Bering Strait region indicates that 

landfast ice can be particularly dynamic 

in some locations in the Bering Sea, and 

those communities have noted changes 

in landfast ice in recent years, e.g., a 

reduction in the winter/early spring 

average extent of landfast ice in Norton 

Bay (Oceana and Kawerak 2014, 

Huntington et al. 2017d). 

As shown in the preceding 

discussion, the best information 

available indicates that relationships 

between landfast ice and bathymetry in 

the Beaufort region, Chukchi region, and 

Bering region differ regionally and 

locally. Significant inter-annual 

variability in the maximum extent of 

landfast ice was also observed, in 

particular in the Beaufort region 

(Mahoney et al. 2007, Mahoney et al. 

2012, Mahoney et al. 2014). In addition, 

there is evidence of decreases in the 

extent of landfast ice trends in earlier 

breakup of landfast ice in the Chukchi 

and Bering regions. It is therefore 

impracticable to delineate a single 

isobath as the shoreward boundary for 

the specific area containing one or both 

of the sea ice essential features that 

accounts precisely for where landfast 

may occur during the period of 

whelping, nursing, and molting in a 

given year. Nonetheless, we concluded 

that defining the nearshore boundary by 

a depth contour at a coarse level for 

each region is appropriate given that 

landfast ice forms in areas of shallow 

bathymetry and such ice is not 

identified as essential to the 

conservation of the Beringia DPS. 

Because the available information 

indicates that in the Beaufort region, the 

20-m isobath provides a reasonable 

approximation of the average stable 

extent of landfast ice, and landfast ice 

extent has apparently not changed 

significantly in the past several decades, 

we selected the 20-m isobath (relative to 

MLLW) as the shoreward boundary in 

the Beaufort region. The available 

information indicates that in the 

Chukchi and Bering regions landfast ice 

occupies shallower water overall, 

though water depths at the seaward 

landfast ice edge are more variable and 

locally specific. In addition, there is 

evidence of decreases in the extent of 

landfast ice and trends in earlier 

breakup of this ice in the Chukchi 

region, as well as of changes in landfast 

ice conditions in the Bering region in 

recent years. In determining the 

shoreward boundary in the Chukchi and 

Bering regions, we considered the above 

information on landfast ice in these 

areas in addition to examining existing 

information on the spring distribution of 

bearded seals from aerial surveys of the 

Bering Sea (in 2012 and 2013) and parts 

of the Chukchi Sea (in 2016) (NMFS 

Marine Mammal Laboratory, 

unpublished data) to inform our 

selection of appropriate shoreward 

boundaries. After considering the 

available information, we selected the 

10-m isobath (relative to MLLW) as the 

shoreward boundary in the Chukchi 

region, and the 5-m isobath (relative to 

MLLW) as the shoreward boundary in 

the Bering region. For both of these 

regions, we conclude that shallower 

waters are likely to contain landfast ice 

and are therefore less likely to contain 

the sea ice essential features. We 

adjusted the shoreward boundary to 

form a continuous line crossing the 

entrance to Port Clarence Bay because 

available information does not indicate 

this area contains the sea ice essential 

features. For the purpose of delineating 

the shoreward boundary, we defined the 

division between the Beaufort and 

Chukchi regions as the line of latitude 

south of Wainwright at 70°36′ N, and 

the division between the Chukchi and 

Bering regions as the line of latitude 

south of Cape Prince of Wales (tip of the 

Seward Peninsula) at 65°35′ N. 

Although we recognize that landfast ice 

can occur to a varying extent within the 

specific area delineated for the sea ice 

essential features, given the dynamic 

nature of sea ice, we conclude that the 

shoreward boundary is drawn at an 

appropriate scale based on the best 

scientific data available. 

The seasonally ice-covered shelf 

waters of the Alaskan Bering, Chukchi, 

and Beaufort seas support an abundance 

of bearded seal benthic prey resources 

(review of abundance and distribution 

of Beringia DPS prey in Cameron et al. 

2010, also, e.g., Logerwell et al. 2011, 

McCormick-Ray et al. 2011, Rand and 

Logerwell 2011, Stevenson and Lauth 

2012, Blanchard et al. 2013, Konar and 

Ravelo 2013, Ravelo et al. 2014, 

Grebmeier et al. 2015, Norcross et al. 

2017a, Norcross et al. 2017b, Sigler et al. 

2017, Grebmeier et al. 2018, Lauth et al. 

2019). Primary prey species important 

in the diet of bearded seals in the 

Beringia DPS include decapod 

crustaceans, such as the multitude of 

crangonid shrimp species known to 

inhabit the Bering and Chukchi seas 

(Cameron et al. 2010). Most crangonid 

shrimp species are broadly distributed 

throughout this region (e.g., 

Sclerocrangon boreas and Argis lar) 

(Butler 1980), and in the Beaufort Sea 

the crangonid shrimp Sabinea 

septemcarinata is widespread (Frost 

and Lowry 1983, Konar and Ravelo 

2013, Ravelo et al. 2015, Norcross et al. 

2017b). Crabs commonly consumed by 

bearded seals that inhabit the Bering 

and Chukchi seas include the Arctic 

lyre crab (Hyas coarctatus) and snow 

crab (Chionoecetes opilio) (Ravelo et al. 

2014, Gross et al. 2017, Divine et al. 

2019), which trawl surveys indicate are 


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also found in the western Beaufort Sea 

(Logerwell et al. 2011, Ravelo et al. 

2015). Demersal fishes common in 

bearded seal diets in Alaska include 

sculpins, Arctic cod, saffron cod, and 

flatfishes. One of the most common 

flatfish in the eastern Bering Sea, 

yellowfin sole (Limanda aspera) (Spies 

et al. 2020b), has been documented in 

the diet of bearded seals in Alaska, and 

is also common in the Chukchi Sea 

(Love et al. 2016). In the far northern 

Bering Sea and the Chukchi and 

Beaufort seas, the fish fauna transitions 

from a community dominated by 

flatfishes to one dominated by smaller 

cods and sculpins (Cameron et al. 2010). 

Sculpins, which are commonplace in 

the Bering, Chukchi, and Beaufort seas, 

include Arctic staghorn sculpin 

(Gymnocanthus tricuspis) (Love et al. 

2016, Mecklenburg et al. 2016), a 

species prevalent in the diet of bearded 

seals in Alaska. Arctic cod and saffron 

cod, which are also commonly 

consumed by bearded seals, 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). 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 waters and has a more coastal 

distribution that extends further south 

in the Bering Sea (Love et al. 2016, 

Mecklenburg et al. 2016). 

In summary, the available data on the 

distributions of bearded 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 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. The best information available 

indicates that the movements of bearded 

seals and their use of habitat for foraging 

are influenced by a variety of factors 

and the seals’ spatial patterns of habitat 

use and locations of intensive use can 

vary substantially among individuals. 

Most importantly, the movements and 

habitat use of bearded seals are strongly 

influenced by the seasonality of ice 

cover and they forage throughout the 

year. 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 same boundaries 

identified above for the sea ice essential 

features. We conclude this specific area 

contains sufficient primary prey 

resources to support the conservation of 

the Beringia DPS. 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 

the Beringia DPS of bearded 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 resources 

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 protection of each of 

the essential features may be required. 

Further, we highlight particular threats 

associated with each source of impacts 

while recognizing that certain threats 

are associated with more than one 

source (e.g., marine pollution and 

noise). 

Climate Change 

The principal threat to the persistence 

of the Beringia DPS of bearded seals is 

the ongoing and anticipated decreases 

in the extent and timing of sea ice 

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

DPS’s habitat are discussed in detail in 

the bearded seal status review report 

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

proposed and final rules to list the 

Beringia DPS of bearded seals 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. 2019b). 

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 

(USGCRP) 2017, Stroeve and Notz 2018, 

IPCC 2021). Such activities may 

adversely affect the essential features of 

the habitat of the Beringia DPS by 

diminishing sea ice suitable for 

whelping, nursing, and molting, and by 

causing changes in the distribution, 

abundance, and/or species composition 

of primary prey resources to support 


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bearded seals in association with 

changes in ocean conditions, such as 

warming and acidification (caused 

primarily by uptake of atmospheric CO2) 

(as reviewed by Cameron et al. 2010, 

also, e.g., Ke ̨dra et al. 2015, Kortsch et 

al. 2015, Renaud et al. 2015, Alabia et 

al. 2018, Arctic Monitoring and 

Assessment Programme (AMAP) 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 the Beringia 

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

pipelines; and vessel and aircraft 

operations. These activities have the 

potential to affect the essential features 

of Beringia DPS critical habitat, 

primarily through pollution 

(particularly in the event of a large oil 

spill), noise, and physical alteration of 

the species’ habitat. 

Large oil spills (considered in this 

section to be spills of relatively great 

size, consistent with common usage of 

the term) are generally considered to be 

the greatest threat associated with oil 

and gas activities in the Arctic marine 

environment (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, and may spread 

over hundreds or thousands of square 

kilometers (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 icecovered 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, and to date, no 

large spills have occurred in U.S. Arctic 

marine waters. 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 bearded 

seal habitat through physical alteration 

of the sea ice (see also Marine Shipping 

and Transportation section). Other 

activities associated with oil and gas 

exploration and development that may 

physically alter the essential sea ice 

features include 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 on the primary prey 

resources essential feature are unclear. 

In summary, a large oil spill could 

render areas containing the identified 

essential features unsuitable for use by 

bearded seals of the Beringia DPS. In 

such an event, sea ice habitat suitable 

for whelping, nursing, and/or for 

molting could be oiled. Primary prey 

resources essential to support bearded 

seals could also become contaminated, 

experience mortality, or be otherwise 

adversely affected by spilled oil. In 

addition, disturbance effects (both 

physical disturbance and acoustic 

effects) could alter the quality of the 

essential features of bearded seal critical 

habitat, or render habitat unsuitable. We 

conclude that the essential features of 

the habitat of the Beringia DPS may 

require special management 

considerations or protection in the 

future to minimize the risks posed to 

these features by oil and gas 

exploration, development, and 

production. 

Marine Shipping and Transportation 

The reduction in Arctic sea ice that 

has occurred in recent years has 

renewed interest in using the Arctic 

Ocean as a potential waterway for 

coastal, regional, and trans-Arctic 

marine operations and in extension of 

the navigation season in surrounding 

seas (Brigham and Ellis 2004, Arctic 

Council 2009). Marine traffic along the 

western and northern coasts of Alaska 

includes tug, towing, and cargo vessels, 

tankers, research and government 

vessels, vessels associated with oil and 

gas exploration and development, 

fishing vessels, and cruise ships (Adams 

and Silber 2017, U.S. Committee on the 

Marine Transportation System 2019). 

Automatic Identification System data 

indicate that the number of unique 

vessels operating annually in U.S. 

waters north of the Bering Sea in 2015 

to 2017 increased 128 percent over the 

number recorded in 2008 (U.S. 

Committee on the Marine 

Transportation System 2019). Climate 

models predict that the warming trend 

in the Arctic will accelerate, causing the 

ice to begin melting earlier in the spring 

and resume freezing later in the fall, 

resulting in an expansion of potential 

transit routes and a lengthening of the 

potential navigation season, and a 

continuing increase in vessel traffic 

(Khon et al. 2010, Smith and 

Stephenson 2013, Stephenson et al. 

2013, Huntington et al. 2015a, 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 


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of unique vessels operating in U.S. 

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

Bering Sea and northward) may increase 

by 136 to 346 percent (U.S. Committee 

on the Marine Transportation System 

2019). 

The fact that nearly all vessel traffic 

in the Arctic, with the exception of 

icebreakers, purposefully avoids areas of 

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

the risks of shipping to the essential 

habitat features identified for bearded 

seals of the Beringia DPS. However, 

icebreakers pose greater risks to these 

features since they are capable of 

operating year-round in all but the 

heaviest ice conditions and are often 

used to escort other types of vessels 

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

ice-covered areas. Furthermore, new 

classes of ships are being designed that 

serve the dual roles of both tanker/ 

carrier and icebreaker (Arctic Council 

2009). Therefore, if icebreaking 

activities increase in the Arctic in the 

future, as expected, the likelihood of 

negative impacts (e.g., habitat alteration 

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

reside will likely also increase. We are 

not aware of any data currently 

available on the effects of icebreaking on 

the habitat of bearded seals during the 

reproductive and molting periods. 

Although impacts of icebreaking are 

likely to vary between species 

depending on a variety of factors, 

Wilson et al. (2017) demonstrated the 

potential for impacts of icebreaking, 

which for Caspian seal (Pusa caspica) 

mothers and pups and their sea-icebreeding 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 resources essential feature. 

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 

resources of the Beringia DPS are 

unclear. 

We conclude that the essential 

features of the habitat of the Beringia 

DPS may require special management 

considerations or protection in the 

future to minimize the risks posed by 

potential shipping and transportation 

activities because: (1) Physical alteration 

of sea ice by icebreaking activities could 

reduce the quantity and/or quality of the 

sea ice essential features; (2) in the 

event of an oil spill, sea ice essential for 

whelping, nursing, and molting could 

become oiled; and (3) the quantity and/ 

or quality of primary prey resources 

essential to the conservation of the 

Beringia DPS 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 Beringia DPS 

overlaps with the Arctic Management 

Area and the Bering Sea and Aleutian 

Islands Management Area identified by 

the North Pacific Fishery Management 

Council. No commercial fishing is 

permitted within the Arctic 

Management Area due to insufficient 

data to support the sustainable 

management of a commercial fishery 

there. However, as additional 

information becomes available, 

commercial fishing may be allowed in 

this management area. For example, two 

bearded seal prey species—Arctic cod 

and saffron cod—have been identified 

as likely initial target species for 

commercial fishing in the Arctic 

Management Area in the future (North 

Pacific Fishery Management Council 

2009). 

In the northern portion of the Bering 

Sea and Aleutian Islands Management 

Area, commercial fisheries overlap with 

the southernmost portion of the 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 

(from the family Pleuronectidae), Pacific 

cod (Gadus macrocephalus), several 

crab species, walleye pollock (Theragra 

chalcogramma), and several salmon 

species. 

Commercial fisheries may affect 

primary prey resources identified as 

essential to the conservation of the 

Beringia DPS, through removal of prey 

biomass and potentially through 

modification of benthic habitat by 

fishing gear that contacts the seafloor. 

Given the potential changes in 

commercial fishing that may occur with 

the expected increase in the length of 

the open-water season and range 

expansion of some economically 

valuable species responding to climate 

change (e.g., Stevenson and Lauth 2019, 

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

we conclude that the primary prey 

resources essential feature may require 

special management considerations or 

protection in the future to address 

potential adverse effects of commercial 

fishing on this feature. 

Unoccupied Areas 

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

authorizes the designation of specific 

areas outside the geographical area 

occupied by the species, if those areas 

are determined to be essential for the 

conservation of the species. Our 

regulations at 50 CFR 424.12(b)(2) 

require that we first evaluate areas 

occupied by the species, and only 

consider unoccupied areas to be 

essential where a critical habitat 

designation limited to geographical 

areas occupied would be inadequate to 

ensure the conservation of the species. 

Because bearded seals of the Beringia 

DPS are considered to occupy their 

entire historical range that falls within 

U.S. jurisdiction, we find that there are 

no unoccupied areas within U.S. 

jurisdiction that are essential to their 

conservation. 

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

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

precludes designating as critical habitat 

any lands or other geographical areas 

owned or controlled by the Department 

of Defense (DOD), or designated for its 


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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 proposed 

rule, we contacted DOD (Air Force and 

Navy) and requested information on any 

facilities or managed areas that are 

subject to an INRMP and are located 

within areas that could potentially be 

designated as critical habitat for the 

Beringia DPS. In response to our 

request, the Air Force provided 

information regarding 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 LRRS. 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 5-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 are not exercising the discretion 

delegated to us by the Secretary to 

exclude any particular areas from the 

critical habitat designation. 

The primary impacts of a critical 

habitat designation arise from the ESA 

section 7(a)(2) requirement that Federal 

agencies ensure that their actions are 

not likely to result in the destruction or 

adverse modification of critical habitat 

(i.e., adverse modification standard). 

Determining these impacts is 

complicated by the fact that section 

7(a)(2) contains the overlapping 

requirement that Federal agencies 

ensure that their actions are not likely 

to jeopardize the species’ continued 

existence. One incremental impact of 

critical habitat designation is the extent 

to which Federal agencies change their 

proposed actions to ensure they are not 

likely to adversely modify critical 

habitat, beyond any changes they would 

make to ensure actions are not likely to 

jeopardize the continued existence of 

the species. Additional impacts of 

critical habitat designation include any 

state and/or local protection that may be 

triggered as a direct result of designation 

(we did not identify any such impacts 

for this 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 the 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 Beringia DPS. The 

‘‘without critical habitat’’ scenario 

represents the baseline for the analysis. 

It includes process requirements and 

habitat protections already extended to 

bearded seals of the Beringia DPS under 

its ESA listing and under other Federal, 

state, and local regulations. The ‘‘with 

critical habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

critical habitat for the Beringia DPS. 

Our analysis for this 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 


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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 critical habitat for the Beringia 

DPS 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 Beringia DPS. Additional detail 

is provided in the Final Impact Analysis 

Report prepared for this final rule. 

Benefits of Designation 

We expect that the Beringia DPS will 

increasingly experience the ongoing loss 

of sea ice and changes in ocean 

conditions associated with climate 

change, and the significance of other 

habitat threats will likely increase as a 

result. As noted above, the primary 

benefit of a critical habitat designation— 

and the only regulatory consequence— 

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

requirement that all Federal agencies 

ensure that 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 Beringia DPS, 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 the Beringia DPS, 

which may facilitate using their 

authorities to support the conservation 

of this species pursuant to ESA section 

7(a)(1), including to design proposed 

projects in ways that 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 

bearded seals of the Beringia DPS and 

their habitat. For example, by 

identifying areas and features essential 

to the conservation of the Beringia DPS, 

complementary protections may be 

developed under state or local 

regulations or voluntary conservation 

plans. These other forms of benefits may 

be economic in nature (whether market 

or non-market, consumptive, nonconsumptive, or passive), educational, 

cultural, or sociological, or they may be 

expressed through 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 Beringia DPS 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 Beringia DPS overlaps 

substantially with the range of the polar 

bear (Ursus maritimus) in the United 

States, and the bearded seal is a prey 

species of the polar bear, so the 

designation may also 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 Arctic ringed seal, and other seal 

species. 

It is not presently feasible to 

monetize, or even quantify, each 

component part of the benefits accruing 

from the designation of critical habitat 

for the Beringia DPS. 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 we cannot monetize or 

quantify all of the incremental benefits 

of the critical habitat designation, we 

conclude that they are not 

inconsequential. 

Economic Impacts 

Direct economic costs of the critical 

habitat designation accrue primarily 

through implementation of section 

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

Federal agencies (‘‘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 Beringia DPS 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 

Beringia DPS 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 

bearded 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 critical 

habitat for the Beringia DPS 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 Beringia DPS critical habitat 

in future section 7 consultations. 

To identify the types of Federal 

activities that may affect critical habitat 

for the Beringia DPS, and therefore 

would be subject to the ESA section 7 

adverse modification standard, we 


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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 bearded seals 

of the Beringia DPS. 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 

critical habitat for the Beringia DPS; 

however, we did not receive any 

relevant new information that would 

change our projections 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. 

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 Beringia DPS bearded 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 this critical habitat 

designation over the next 10 years, in 

discounted present value terms, are 

estimated to be $563,000 at 7 percent 

discount rate and $658,000 at a 3 

percent discount rate, for an annualized 

cost of $74,900 at both a 7 percent and 

a 3 percent discount rate. About 81 

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 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 this 

proposed rule, we contacted the DOD 

regarding any potential military 

operations impacts of designating 

critical habitat for the Beringia DPS. In 

a letter dated June 3, 2013, the DOD 

Regional Environmental Coordinator 

indicated that no impacts on national 

security were foreseen from such a 

designation. More recently, by letter 

dated March 17, 2020, the Navy 

submitted a request for exclusion of a 

particular area north of the Beaufort Sea 

shelf from the designation of critical 

habitat based on national security 

impacts. This area does not overlap with 

the specific area identified as meeting 

the definition of critical habitat for the 

Beringia DPS. In this letter, the Navy 

also provided information regarding its 

training and testing activities that 

currently occur or are planned to occur 

in U.S. waters inhabited by bearded 

seals. The Navy commented that based 

on the current and expected training 

and testing activities occurring in the 

Arctic region, it has determined that 

training and testing activities do not 

pose any substantial threat to the 

essential features of the habitat of the 

Beringia DPS. 

In addition, by letter dated April 30, 

2020, the Air Force provided 

information concerning its activities at 

radar sites located adjacent to the area 

under consideration for designation as 

critical habitat (relevant sites identified 

above in the Application of ESA Section 

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

requested that we consider excluding 

critical habitat near these sites under 

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

impacts on national security. Although 

we 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 Beringia DPS 

of bearded seals, regardless of whether 

or where critical habitat is designated 

for the species. The specific area 

identified as meeting the definition of 

critical for the Beringia DPS in this final 

rule includes marine habitat extending 

seaward from particular isobaths, rather 

than from the line of MLLW as we had 

proposed. Thus, waters adjacent to the 


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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 Beringia DPS 

bearded seals. We therefore anticipate 

that the time and costs associated with 

consideration of the effects of future Air 

Force actions on critical habitat of the 

Beringia DPS under section 7(a)(2) of 

the ESA would be limited, if any, and 

the consequences for the Air Force’s 

activities would be negligible even if we 

do not exclude the requested areas from 

critical habitat designation. 

As a result, and in light of the benefits 

of critical habitat designation discussed 

above and in the Final Impact Analysis 

Report, we have concluded that the 

benefits of exclusion do not outweigh 

the benefits of designation and are 

therefore not exercising our 

discretionary authority to exclude these 

particular areas pursuant to section 

4(b)(2) of the ESA 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 bearded seals or other marine 

mammals, such that important hunting 

areas should be considered for 

exclusion, but no restrictions on 

subsistence hunting are associated with 

this designation. Accordingly, we are 

not exercising our discretion to conduct 

an exclusion analysis pursuant to 

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

other relevant impacts. 

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 Beringia DPS of 

bearded seals. This critical habitat area 

contains physical or biological features 

essential to the conservation of the 

Beringia DPS of bearded seals that may 

require special management 

considerations or protection. We are not 

excluding any areas based on economic 

impacts, impacts to national security, or 

other relevant impacts of this 

designation. We have not identified any 

unoccupied areas that are essential to 

the conservation of the Beringia DPS of 

bearded seals, 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 boundaries of the 

critical habitat designation. 

Effects of Critical Habitat Designation 

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

Federal agencies, including NMFS, to 

ensure that any action authorized, 

funded, or carried out by the agency is 

not likely to jeopardize the continued 

existence of any threatened or 

endangered species or destroy or 

adversely modify designated critical 

habitat. Federal agencies must consult 

with us on any agency action that may 

affect listed species or critical habitat. 

During interagency consultation, we 

evaluate the agency action to determine 

whether the action is likely to adversely 

affect listed species or critical habitat. 

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). The potential effects of a 

proposed action may depend on, among 

other factors, the specific timing and 

location of the action relative to the 

seasonal presence of essential features 

or seasonal use of critical habitat by 

listed species for essential life history 

functions. Although the requirement to 

consult on an action that may affect 

critical habitat applies regardless of the 

season, NMFS addresses spatialtemporal considerations when 

evaluating the potential impacts of a 

proposed action during the ESA section 

7 consultation process. For example, if 

an action with short-term effects is 

proposed during a time of year that sea 

ice is not present, we may advise that 

consequences to critical habitat are 

unlikely. If we conclude in a biological 

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

the ESA that the agency action would 

likely result in the destruction or 

adverse modification of critical habitat, 

we would recommend 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 Beringia DPS. 

Activities subject to the ESA section 7 

consultation process include activities 

on Federal lands as well as activities 

requiring a permit or other authorization 

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

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

other Federal action, including funding 

(e.g., Federal Highway Administration 

or Federal Emergency Management 

Agency funding). Consultation under 

section 7 of the ESA would not be 

required for Federal actions that do not 

affect listed species or designated 

critical habitat, and would not be 

required for actions on non-Federal and 

private lands that are not carried out, 

funded, or authorized by a Federal 

agency. 

Activities That May Be Affected by 

Critical Habitat Designation 

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

the maximum extent practicable, in any 

regulation to designate critical habitat, 

an evaluation and brief description of 

those activities that may adversely 

modify such habitat or that may be 

affected by such designation. A variety 

of activities may affect critical habitat 


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designated for the Beringia DPS of 

bearded seals and, if carried out, 

funded, or authorized by a Federal 

agency, may be subject to ESA section 

7 consultation. Such activities include: 

In-water and coastal construction; 

activities that generate water pollution; 

dredging; commercial fishing; oil and 

gas exploration, development, and 

production; oil spill response; and 

certain military readiness activities. 

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 

critical habitat for the Beringia DPS, 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 Beringia DPS 

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 require project modifications 

because habitat-related effects on 

Beringia DPS bearded 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. 

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/ 

bearded-seal#conservationmanagement, the Federal eRulemaking 

Portal at www.regulations.gov/docket/ 

NOAA-NMFS-2020-0029, and is 

available upon request from the NMFS 

office in Juneau, Alaska (see FOR

FURTHER INFORMATION CONTACT). 

Summary of Comments and Responses 

We solicited comments on the 

proposed rule to designate critical 

habitat for the Beringia DPS 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 proposed rule, 

and we issued news releases and 

published notices in local newspapers 

summarizing the proposed rule and 

inviting public comments. We received 

31 unique written comment 

submissions and testimony from seven 

people during the public hearings. 

In addition, we solicited peer review 

from four reviewers of our evaluation, 

interpretation, and use of available data 

regarding what areas meet the definition 

of critical habitat in the proposed rule. 

The peer reviewers generally agreed that 

we relied on the best available data 

regarding the habitat requirements of 

the Beringia DPS of bearded seals 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 proposed rule or Draft Impact 

Analysis Report and offered nonsubstantive 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 responded 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 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 

Beringia DPS as threatened under the 

ESA. 

Peer Review Comments 

Evaluation of Critical Habitat 

Comment 1: One peer reviewer 

commented that the bearded seal 

lifespan we identified is low relative to 

sample collections from the subsistence 

harvested bearded seals in Alaska 

between 2000 and 2019, which indicate 

that the life span and reproductively 

active age are likely longer, and the 

reviewer summarized other related 

information (Quakenbush 2020a; 

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 bearded 

seal lifespan and reproductively active 

age. 

Comment 2: In reference to the 

statement in the proposed rule that 

adult bearded seals have rarely been 

seen hauled out on land in Alaska, one 

peer reviewer commented this may no 

longer be the case. The peer reviewer 

stated that in September 2019, two adult 

bearded seals were captured for tagging 

while they were hauled out on land near 

Utqiag ̇vik, Alaska (ADF&G, unpublished 

data). Additionally, the peer reviewer 

noted that a recent study by Olnes et al. 

(2020) reported that during summer 

when sea ice was minimal, about half of 

the juvenile bearded seals tagged during 

the study hauled out on land in 

Kotzebue Sound and Norton Sound, 

while the others remained near and 

continued to haul out on sea ice; and a 

couple individuals used both strategies 

in different years. 

Response: We appreciate the 

information provided by the peer 

reviewer. We have considered this 

information and have incorporated the 

additional reference and information 


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into the Description and Natural History 

section of this final rule. In addition, we 

have clarified in the preamble that 

although adult bearded seals have rarely 

been seen hauled out on land, two 

adults were captured for tagging while 

hauled out on land near Utqiag ̇vik. 

Comment 3: In reference to the 

description in the proposed rule of sea 

ice used by bearded seals, one peer 

reviewer noted that a recently published 

study by Olnes et al. (2021) found that 

juvenile bearded seals selected 

intermediate ice concentrations, but in 

the later years of the study the selected 

ice concentrations occurred farther from 

the ice edge than during the earlier 

study years. Another peer reviewer 

pointed out that Olnes et al. (2021) 

suggested juvenile bearded seals ‘‘are 

adjusting’’ to changes in ice conditions, 

and stated that we should consider the 

significance of those behavioral 

adjustments in terms of expected 

impacts on lifetime reproductive 

success. 

Response: We appreciate the 

information provided by the peer 

reviewer. We have considered and 

incorporated information from the 

recent publication by Olnes et al. (2021) 

into the preamble of this final rule 

where applicable and relevant. 

Although not directly relevant to 

determining critical habitat for this 

species, regarding the comment about 

implications of the adjustments to 

changing sea ice conditions reported by 

that study, the authors concluded that it 

is not clear at this time how the 

observed changes in juvenile bearded 

seal selection of sea ice habitat affect 

seal health or relate to adult bearded 

seal behavior. 

Comment 4: We stated in the 

proposed rule that observations of some 

bearded seals remaining at sea for 

prolonged periods provides some 

evidence that bearded seals might not 

require sea ice for hauling out other 

than during reproduction and molting. 

One peer reviewer commented that it is 

a feature of habitat loss that species 

occupy suboptimal habitat, and thus 

these observations might instead reflect 

seals forced by habitat loss to remain at 

sea. 

Response: We have clarified in the 

preamble to this final rule that there is 

some evidence that, other than during 

the critical life history periods related to 

reproduction and molting, bearded seals 

can remain at sea for extended periods 

without requiring the presence of sea ice 

for hauling out. 

Comment 5: One peer reviewer stated 

that a recent study by Olnes et al. (2020) 

showed that north-south movements of 

tagged bearded seals (largely juveniles), 

relative to sea ice advance, differed by 

where seals were tagged, and some seals 

did not track sea ice advance at all, 

including one juvenile tagged in 

Kotzebue Sound that remained there 

during winter. The peer reviewer also 

noted that one juvenile female and one 

adult male bearded seal tagged in the 

Beaufort Sea overwintered in the 

vicinity of Barrow Canyon in two 

consecutive winters (Quakenbush et al. 

2019, Quakenbush 2020b; ADF&G, 

unpublished data). 

Response: We appreciate the 

information provided by the peer 

reviewer. We have considered this 

information and have incorporated it 

into the Description and Natural History 

section of this final rule. 

Comment 6: One peer reviewer stated 

that a recently published paper 

corroborates that the bearded seal molt 

is protracted compared to ringed and 

spotted seals and documents that this 

behavior requires less energy than the 

shorter molting period of ringed and 

spotted seals (Thometz et al. 2021). The 

peer reviewer suggested that given this 

new information, along with greater 

evidence of bearded seals hauling out 

on land (Quakenbush et al. 2019, Olnes 

et al. 2020; ADF&G, 2020, unpublished 

data), sea ice may not be as critical to 

bearded seals for molting as previously 

thought. 

Response: We appreciate the 

information provided by the peer 

reviewer. We have considered this 

information and have updated the 

Description and Natural History section 

of this final rule to include a brief 

summary of the findings of Thometz et 

al. (2021). We note that the reviewer’s 

assertion that the protracted molt in 

bearded seals ‘‘requires less energy’’ 

than in spotted and ringed seals was not 

a finding of Thometz et al. (2021). While 

the bearded seal in that study showed 

only a slight elevation in metabolic rate 

during molt, its long molting period still 

implies that a large amount of energy is 

required overall. We also note that the 

authors observed the haul-out time of 

the bearded seal in their study to 

increase markedly during molting, 

which they suggested indicates benefits 

of increased skin temperatures for 

molting, even though there were 

minimal changes in daily energetic cost. 

Although we recognize that primarily 

juvenile bearded seals have been 

observed hauling out on land, typically 

during the open-water season following 

the peak period of their annual molt, 

this does not imply that bearded seals 

necessarily have potential to shift to use 

of haul-out sites on shore during 

molting, which would require bearded 

seals to adapt to novel conditions. 

Increased use of shorelines by bearded 

seals for molting may distance them 

from preferred foraging locations and 

expose them to greater predation risk 

(Thometz et al. 2021). Further, as 

compared to shorelines, sea ice provides 

a far more extensive substrate for 

bearded seals to haul out on during the 

molt, as well as isolation from terrestrial 

predators and disturbances (e.g., from 

anthropogenic activities or presence of 

terrestrial animals). For example, 

Quakenbush et al. (2019) reported that 

haul-out duration for tagged bearded 

seals on land was lower than haul-outs 

on ice (about half the duration), which 

they suggested was likely because the 

incidence of disturbance was greater on 

land. We continue to conclude, based 

on the best scientific data available, that 

sea ice habitat suitable as a platform for 

molting is essential to the conservation 

of the Beringia DPS. 

Comment 7: Two peer reviewers 

questioned the statement in the 

proposed rule that sea ice provides 

bearded seals some protection from 

predators. Both of the reviewers pointed 

out that sea ice actually makes the seals 

more accessible to polar bears, which 

are their primary predator. One of the 

peer reviewers added that, although sea 

ice provides bearded seals some 

protection from predation by killer 

whales, the magnitude of such 

predation is unknown. 

Response: We agree that sea ice can 

facilitate polar bear access to bearded 

seals but under conditions of drastically 

reduced or absence of summer sea ice, 

bearded seals and polar bears would 

likely be forced into greater proximity 

on shore, where predation on the seals 

could well increase. Bearded seals, 

when they have a choice, select ice floes 

for hauling out that afford good 

visibility and quick access to the water. 

As summer ice in the Arctic continues 

to diminish, the remaining, reduced ice 

area is likely to be composed of greater 

proportions of multi-year ice with 

higher surface relief, favoring polar 

bears’ hunting success. Sea ice also 

provides bearded seals isolation from 

other terrestrial predators, as well as 

some protection from predation by killer 

whales, although as noted by a peer 

reviewer, the magnitude of such 

predation is unknown (Cameron et al. 

2010). Thus, our statement that sea ice 

provides some protection from 

predators is supported by the best 

available scientific data. Nevertheless, 

we clarified the statement in the 

preamble to this final rule, consistent 

with our explanation here. 

Comment 8: One peer reviewer 

commented that although increased 

disease transmission is often cited as a 


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potential threat to ice-associated 

pinnipeds, there are many examples of 

pinnipeds using large terrestrial 

haulouts without serious disease 

transmission issues (e.g., walrus, Steller 

sea lion, and northern fur seal). The 

peer reviewer suggested that because 

bearded seals are less gregarious and 

would likely haul out on land in low 

densities during molting, disease 

transmission would be even less likely. 

Response: We re-examined this 

language in the preamble to the 

proposed rule and determined that we 

sufficiently qualified the statement 

concerning disease transmission, as we 

stated that there is the ‘‘potential’’ for 

disease transmission if molting occurs 

on land. Because coastal shorelines 

provide a far less extensive haulout 

substrate for bearded seals than sea ice, 

there may be greater tendency for 

intraspecific contact in use of haul-out 

sites on shore, and bearded seals hauled 

out on land could also be at risk of 

exposure to terrestrial pathogens that 

they would not be exposed to on sea ice. 

Comment 9: One peer reviewer asked 

whether the edges of landfast ice are 

used by bearded seals of the Beringia 

DPS for whelping and molting, as 

documented in Svalbard (Kovacs et al. 

1996), and stated that if so, the 

definitions of the sea ice essential 

features should be expanded to include 

this habitat. 

Response: Although some bearded 

seals may use the edges of landfast ice 

for whelping and molting, we are not 

aware of available information 

indicating that this is common enough 

within the range of the Beringia DPS to 

be considered essential for the 

persistence of the DPS. Therefore, we 

did not expand the definitions of the sea 

ice essential features to include such 

ice. 

Comment 10: One peer reviewer 

suggested that we consider expanding 

the brief discussion of differences in the 

diets of bearded seals among age classes 

(e.g., Young et al. 2010, Crawford et al. 

2015), particularly as it is applicable for 

defining foraging habitat as part of the 

critical habitat designation. The peer 

reviewer noted that diet may also be 

influenced by interannual variations in 

sea ice extent (e.g., Hindell et al. 2012). 

Response: We have updated the 

discussion of bearded seal diets in the 

preamble to this final rule to reflect the 

peer reviewer’s suggestions. Rather than 

delineating particular areas bearded 

seals use for foraging, in accordance 

with ESA section 3(5)(A), we delineated 

a specific area within the geographical 

area occupied by the species where the 

primary prey resources essential feature 

occurs. 

Comment 11: One peer reviewer 

commented they agreed that, as stated 

in the proposed rule, the diversity of 

prey consumed by bearded seals makes 

identification of particular essential 

prey species impracticable. However, 

the peer reviewer stated that they 

disagreed with our characterization of 

bearded seals as ‘‘benthic specialists,’’ 

arguing that because they feed on a wide 

variety of benthic prey taxa, bearded 

seals would be more accurately 

described as ‘‘benthic generalists.’’ The 

peer reviewer added that given the wide 

array of fish and invertebrate prey eaten 

by bearded seals, virtually the entire 

shallow Bering and Chukchi shelf 

provides feeding habitat. The peer 

reviewer further stated that our 

description of the diet of bearded seals 

in the ‘‘Description and Natural 

History’’ section of the proposed rule is 

too general and implies that there are 

few common prey items, giving a very 

different impression about their diets 

than has been documented for bearded 

seals harvested in Alaska. The peer 

reviewer suggested that it would be 

more useful to provide examples of the 

species of schooling pelagic fishes, 

demersal fishes, and invertebrates that 

are consumed by bearded seals in 

Alaska, and included a summary of 

related information regarding prey 

species consumed by bearded seals in 

the Alaskan Bering and Chukchi seas 

(Quakenbush et al. 2011, Crawford et al. 

2015, Quakenbush 2020a). 

Response: We appreciate the 

comments and information provided by 

the peer reviewer. We have revised the 

preamble text to state that bearded seals 

are benthic generalists. We have also 

updated our discussion of the primary 

prey resources essential feature in this 

final rule preamble to incorporate 

bearded seal diet information from the 

recent analysis by Quakenbush (2020a) 

(see Physical and Biological Features 

Essential to the Conservation of the 

Species section), which we considered 

as part of the best scientific data 

available to inform our analysis. We 

have provided a level of detail that is 

appropriate for this final rule and have 

cited the relevant sources of information 

regarding bearded seal diets. 

Comment 12: One peer reviewer 

commented that the restriction of 

critical habitat to the area presently 

occupied by the species seems to be 

required by the ESA, but challenges 

conservation of a species whose habitat 

is rapidly diminishing, noting that for 

the Beringia DPS we cited recent 

reductions in sea ice in Kuskokwim Bay 

as a rationale for not including this area 

in the proposed designation. 

Response: As we stated in the 

proposed rule, 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 that are 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 that such areas are essential 

for the conservation of the species. As 

we explained in the preamble to our 

2016 final rule with USFWS that 

amended the regulations for designating 

critical habitat, the ESA allows for 

flexibility to address the effects of 

climate change in a critical habitat 

designation in cases where the best 

scientific data available indicate that a 

species may be shifting habitats or 

habitat use (81 FR 7414, 7426; February 

11, 2016). In such cases, it is 

permissible to include specific areas 

accommodating these changes in a 

designation, provided that we can 

explain why the areas meet the 

definition of critical habitat. In other 

words, we may find that an unoccupied 

area is currently essential for the 

conservation of the species even though 

the functions the habitat is expected to 

provide may not be used by the species 

until a point in the foreseeable future. 

However, we have not identified any 

such areas for bearded seals of the 

Beringia DPS, as they occupy their 

entire historical range, which in the 

Bering Sea extends south over the 

continental shelf and includes 

Kuskokwim Bay. Although our decision 

regarding the southern boundary of 

critical habitat relative to Kuskokwim 

Bay takes into consideration reductions 

in sea ice in this area, the designation 

includes the majority of reproductive 

and molting habitat in the Bering Sea. 

Comment 13: To further describe 

acoustic conditions that allow for 

effective communication by bearded 

seals for breeding purposes, one peer 

reviewer asked whether it would be 

possible to analyze ‘‘background’’ 

acoustic noise in recordings collected by 

passive acoustic moorings where 

bearded seal trills were detected during 

the breeding season and where 

whelping has been observed, as these 

conditions would arguably be where 

effective communication is possible. 

The peer reviewer also asked whether it 

would be possible to analyze how 

reductions in sea ice extent and 

concentration have changed background 

acoustic noise during the breeding 


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period using the time series of passive 

acoustic data available from several 

mooring locations in the region, as this 

might provide insight into acoustic 

conditions and how they are changing. 

The peer reviewer commented that the 

reduced presence of sea ice will 

increase abiotic noises from wind and 

precipitation, lead to changes in the 

acoustic environment, and could 

conceivably lead to increases in 

anthropogenic noises such as from 

boats. The peer reviewer added that it 

should also be possible to quantify how 

much of the noise from such sources 

overlaps with the frequency ranges used 

by male bearded seals during the 

breeding period. 

Response: We appreciate the 

suggestions of the peer reviewer. While 

we agree that analyses such as those 

suggested by the peer reviewer may 

enhance understanding of the acoustic 

ecology of bearded seals during the 

breeding season, the ESA requires us to 

designate critical habitat within a 

specific timeframe based on the best 

scientific data available. In light of this 

mandatory timeframe, conducting such 

additional analyses is not feasible. We 

will continue to support further 

research that generates knowledge 

needed to conserve this species, 

including with respect to understanding 

of bearded seal reproductive ecology. As 

discussed in more detail below, 

following consideration of public 

comments received, we have not 

retained the proposed essential habitat 

feature related to acoustic conditions for 

bearded seals in this final rule (e.g., see 

our response to Comment 32). 

Comment 14: Three peer reviewers 

and several other commenters, 

including the Marine Mammal 

Commission, identified a few recent 

scientific publications related to 

bearded seal acoustic communication 

and responses to noise that might 

provide additional relevant data. One 

peer reviewer also suggested that we 

include information on detection of 

bearded seal vocalizations outside of the 

breeding period, as bearded seal 

vocalizations may be used for 

communication during other parts of the 

year. 

Response: We appreciate the 

additional information provided by the 

peer reviewers and other commenters. 

While we did not expand our discussion 

of bearded seal vocalizations in this 

final rule, we thoroughly considered 

this information in our re-evaluation of 

the proposed acoustic essential feature 

(see Summary of Changes From the 

Proposed Designation section). 

Comment 15: Two peer reviewers 

questioned why we excluded tidallyinfluenced channels of tributary waters 

from proposed critical habitat, given 

that the information available indicates 

that some, primarily juvenile, bearded 

seals use this habitat. One of the peer 

reviewers noted that indigenous hunters 

have reported that bearded seals feed in 

estuaries in numerous locations along 

the Alaska coast, while the other noted 

that some of the juvenile bearded seals 

tagged in Alaska were captured in 

rivers. Another peer reviewer stated that 

although juvenile bearded seals are 

commonly seen up rivers in some areas, 

they are solitary and not present in large 

numbers, and noted that it is not likely 

all juveniles practice this behavior. 

Similarly, several other commenters, 

including Kawerak and the Native 

Village of Kotzebue, recommended that 

critical habitat include nearshore areas, 

river mouths, and extensive inshore 

estuaries/lagoon systems found 

throughout the Seward Peninsula and 

Norton Sound, as well as in Kotzebue 

Sound. Commenters stated that welldocumented IK indicates that bearded 

seals, in particular juveniles, use these 

areas during the ice-free period, and 

described the capture of young bearded 

seals in rivers for tagging telemetry 

studies. 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 these shallow waters during the icefree 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 in or travel 

through these waters. 

Response: We recognize that bearded 

seal use of river mouths and inshore 

lagoons during the open-water period 

has been reported and documented, and 

we reviewed and thoroughly considered 

the references that were cited in these 

comments, along with information 

presented in other available reports and 

peer-reviewed publications (e.g., Oceana 

and Kawerak 2014, Northwest Arctic 

Borough 2016, Huntington et al. 2017d) 

regarding this aspect of bearded seal 

habitat use. The ESA requires that we 

identify the physical or biological 

features that are essential to support the 

life-history needs of a particular species 

based on the best scientific data 

available. With regard to river mouths 

and inshore estuaries/lagoons, the best 

information available indicates that 

some juvenile bearded seals occur in 

these areas during the open-water 

period. However, we lack sufficient data 

to develop a description of the specific 

physical or biological features of this 

habitat that support bearded seal 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 Beringia DPS. Given this and our 

consideration of the best information 

available, in the Bering and Chukchi 

seas, including the areas referenced by 

the commenters, we are not designating 

any river mouths or shallow inshore 

estuaries/lagoon systems as critical 

habitat for the Beringia DPS. In the 

event that additional information 

becomes available indicating whether 

and what essential features occur in 

these or similar habitats, we can 

consider revising critical habitat 

accordingly. Although the critical 

habitat designation for bearded seals 

does not include those requested areas, 

ESA section 7 consultation 

requirements apply to any action that 

may affect bearded seals, including in 

river mouths or those shallow inshore 

estuaries/lagoon systems not identified 

as critical habitat. With regard to 

nearshore waters relative to the 

shoreward boundary of the designation, 

see our response below to Comment 39. 

Comment 16: With regard to the 

proposed shoreward boundary of 

critical habitat, one peer reviewer 

requested that we provide a definition 

for the term mean lower low water 

(MLLW). The peer reviewer agreed that 

it is important to include habitat up to 

this shoreward boundary, as it is 

possible that the use of land by bearded 

seals may expand in the future, and 

noted that bearded seals have been 

observed hauling out on land in 

Svalbard during summer in areas with 

no drifting sea ice (Merkel et al. 2013). 

Response: MLLW, a tidal datum 

defined and maintained by NOAA, is 

calculated as the average of the lower 

low water height of each tidal day 

observed over a given period (e.g., the 

19-year National Tidal Datum Epoch). 

Thus, the line of MLLW is the 

intersection of the water surface with 

the shore (land) at the elevation of 

MLLW. 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. Although we 

proposed to identify the shoreward 

boundary of the designation for the 

Beringia DPS as the line of MLLW, we 

have revised this boundary after 

considering public comments and reevaluating the best scientific data 

available, as described below in the 


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section Summary of Changes From the 

Proposed Designation. 

Comment 17: One peer reviewer 

suggested that we consider extending 

the proposed southern boundary of 

critical habitat to the continental shelf 

break in the Bering Sea given that some 

tagged juvenile bearded seals have used 

this habitat for foraging. However, the 

peer reviewer acknowledged that 

because a limited number of bearded 

seals have been tagged, it is hard to 

accurately know the proportion of 

juvenile bearded seals that use the 

southern continental shelf break as a 

foraging area. A related comment 

questioned whether our consideration of 

Bering Sea ice edge use by juvenile 

bearded seals relative to the proposed 

southern boundary of critical habitat 

suggested this habitat was an essential 

feature. 

Response: As we discussed in the 

proposed rule, although some tagged 

juvenile bearded seals selected habitat 

near the ice edge (which, depending on 

ice conditions, may extend to near the 

shelf break) and the 100-m isobath in 

the Bering Sea, other tagged juveniles 

did not show this use pattern. Further, 

as noted in this final rule, a recent study 

by Olnes et al. (2021) reported that in 

the later years of their study, juvenile 

bearded seals selected ice 

concentrations that occurred well north 

of the southern ice edge in the Bering 

Sea, in contrast to earlier study years. 

The authors suggested that the 

contrasting pattern of habitat selection 

in the later period reflected changes in 

ice conditions that coincided with this 

period. While it seems likely that prey 

resources would also be an important 

factor, data are not available on this 

aspect of the habitat use patterns 

documented for these seals. 

In response to public comments and 

concerns regarding our delineation of 

the boundaries of critical habitat with 

respect to bearded seal primary prey 

resources, as well as peer reviewer and 

public comments related to bearded seal 

use of habitat for foraging, we reevaluated the best scientific data 

available and the approach we used to 

identify the specific area(s) that contain 

this essential feature. In the proposed 

rule, we identified one specific area in 

the Bering, Chukchi, and Beaufort seas 

containing the 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 on occurrence of the 

primary prey resources essential feature. 

However, in reviewing the comments 

and considering the available data, we 

recognized that available information on 

the distributions of bearded seal 

primary prey species indicates that 

these prey resources are widely 

distributed across the 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 this portion of 

the species’ occupied habitat contains 

primary prey resources that differ from 

those found within the specific area 

defined by the sea ice essential features. 

Given that the movements and habitat 

use of bearded seals are strongly 

influenced by the seasonality of sea ice, 

we determined that the best approach to 

identify the appropriate boundaries for 

the specific area(s) containing all of the 

essential features is to base the 

delineation on the same boundaries 

identified for the sea ice essential 

features (i.e., sea ice essential for 

whelping, nursing, and molting). As a 

result of this change in our approach, 

we have revised the shoreward 

boundary of the designation (see 

Summary of Changes From the 

Proposed Designation section); the 

boundaries are otherwise unchanged 

from the proposed rule. We note that the 

southern extent of critical habitat 

designated for the Beringia DPS in the 

Bering Sea includes some areas near the 

100-m isobath, and some portion of 

habitat near the ice edge may be located 

within the designated area during late 

winter and spring, depending upon ice 

conditions in a given year. 

Comment 18: One peer reviewer 

suggested that it might be possible to 

create an index of bearded seal prey 

using existing data from benthic 

samples and fish trawls to better define 

foraging areas, similar to the approach 

used by Jay et al. (2017) to develop an 

index of walrus prey. 

Response: While we appreciate this 

suggestion, suitable data on the 

distributions and abundances of 

bearded seal primary prey species 

within U.S. waters occupied by bearded 

seals are not available at this time to 

develop such an index for those prey. 

Although future research may enhance 

understanding of bearded seal foraging 

habitat, the ESA requires us to designate 

critical habitat based on the best 

scientific data available. This 

information is sufficient to support our 

determination that the specific area 

designated as critical habitat for the 

Beringia DPS contains the primary prey 

resources essential feature. 

Comment 19: One peer reviewer 

stated that in our evaluation of climate 

change as a source of potential threats 

to the essential features that may require 

special management considerations or 

protection, more specific attention to 

ocean acidification would be 

appropriate. 

Response: Although our evaluation 

does not consider an exhaustive list of 

threats that could impact the essential 

features, in response to this comment, as 

well as public comments (see our 

response to Comment 49), 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 20: 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 

bearded 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 bearded 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 bearded 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 21: One peer reviewer 

noted that, in addition to our reference 

to the Deep Water Horizon oil spill in 

discussing risks to the essential features 

associated with oil production in the 

Arctic, it might be useful to refer to 

information from studies on the longterm impacts of the 1989 Exxon Valdez 

oil spill in discussing risks of oil spills/ 

discharges from vessels. 

Response: We have updated our 

discussion of oil and gas activity in the 

preamble of this final rule to note that 

experience with spills in subarctic 

regions, such as in Prince William 

Sound, Alaska, have shown that large 

oil spills can have lasting ecological 

effects. 

Comment 22: 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 


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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 the Beringia DPS 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, 

therefore, 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 

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 suitable for whelping 

and nursing 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 critical habitat for 

the Beringia DPS. 

Comment 23: One peer reviewer 

stated that better use could have been 

made of IK despite its dispersed nature 

and the challenges of accessing it. A 

number of other commenters, including 

the Ice Seal Committee and the North 

Slope Borough, also indicated that we 

should further utilize IK in our 

determination of critical habitat for the 

Beringia DPS. The North Slope Borough 

stated that due to the amount of existing 

scientific uncertainty concerning 

bearded 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 bearded 

seals for whelping and nursing, 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 bearded 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 bearded 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 courtapproved stipulated settlement 

agreement, we must complete a final 

critical habitat determination by March 

15, 2022 (see Background section). 

Draft Impact Analysis Report 

Comment 24: 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 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 °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 


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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. We acknowledge that the 

critical habitat designation will not halt 

the ongoing loss of sea ice. However, the 

designation can help address other 

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. Bearded 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 25: 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 26: 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 

Beringia DPS 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 and 

Section 4 of the Final Impact Analysis 

Report and additional information 

regarding potential benefits has been 

incorporated into this section of the 

report as appropriate. As discussed in 

this report, all of the types of benefits 

identified are at least partially coextensive 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 27: 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 

designating critical habitat for the 

Beringia DPS, they found it unclear if 

the information in the report supports 

finding that there is a net benefit (and 

also questioned whether such a finding 

is necessary). To address this, 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 

proposed rule regarding ways in which 

critical habitat designation for the 

Beringia DPS 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 

bearded 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 


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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 Beringia 

DPS 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 28: One commenter stated 

that although we identified areas of at 

least 15 percent ice concentration as 

essential for molting, this criterion does 

not appear to be based on any specific 

data regarding sea ice concentrations 

necessary for molting. They also pointed 

out that we indicated Ver Hoef et al. 

(2014) informed the conclusion in the 

status review of the bearded seal 

(Cameron et al. 2010) that 15 percent ice 

concentration would be minimally 

sufficient for molting, but stated we 

could not have relied on Ver Hoef et al. 

(2014) because it was in fact published 

several years after the status review was 

completed. 

Response: As we explained in the 

proposed rule, the minimum 15 percent 

ice concentration identified for sea ice 

habitat essential as a platform for 

molting is consistent with the ice 

concentration considered by Cameron et 

al. (2010) to be minimally sufficient for 

molting in the status review of the 

bearded seal. They assumed that ice 

concentration requirements for molting 

would be less stringent than those for 

whelping and nursing, which they had 

concluded were 25 percent or greater, 

and they judged the minimum value for 

molting to be 15 percent, which also 

corresponds to the ice edge in many 

observation and modeling products for 

sea ice; it would be impractical to use 

a value below that which is typically 

used to denote areas of sea ice in 

satellite observations and modeling 

products. The authors determined the 

minimum ice concentration for 

whelping and nursing in light of 

available information from two studies, 

Simpkins et al. (2003) and Ver Hoef et 

al. (In review). Because the latter study 

was subsequently published in a 

scientific journal, the published version 

(Ver Hoef et al. 2014) was cited in the 

proposed rule. There were no 

substantive differences in the patterns of 

probability of occurrence of bearded 

seals among 25 percent ice classes 

between the published and in-review 

versions of this study that would change 

our conclusions that sea ice habitat 

essential as a platform for whelping and 

nursing has at least 25 percent ice 

concentrations and for molting has at 

least 15 percent ice concentration. 

Comment 29: One commenter stated 

that the definition of the primary prey 

resources essential feature is 

exceedingly and impermissibly generic 

in that it includes all species that may 

be prey for bearded seals rather than the 

specific prey species that are essential to 

the conservation of the Beringia DPS. 

They also stated that although we 

indicated that bearded seals are 

considered ‘‘benthic specialists,’’ the 

best scientific information available 

demonstrates that the diet of bearded 

seals in Alaska has shifted over time, 

with bearded seals consuming a greater 

proportion and diversity of fish species 

(Quakenbush et al. 2011). They 

suggested that this further demonstrates 

that there is no particular prey species 

that is essential to the conservation of 

the Beringia DPS, diet is flexible, and 

that designating critical habitat based on 

primary prey resources may not be 

critical for bearded seals to forage in 

waters 200 m or less in depth. 

Response: Because bearded seals rely 

on their primary prey resources in 

waters 200 m or less to support their 

annual energy budgets, we continue to 

conclude in this final rule that primary 

prey resources compose a habitat feature 

essential to the conservation of the 

Beringia DPS. We disagree that the 

definition of the primary prey essential 

feature is too generic. In the proposed 

rule, we identified those primary prey 

resources as benthic organisms, 

including epifaunal and infaunal 

invertebrates, and demersal and 

schooling pelagic fishes found in water 

depths of 200 m or less. Peer reviewer 

and public comments led us to reevaluate and refine the definition of this 

essential feature to focus on benthic 

organisms specifically (see Summary of 

Changes From the Proposed Designation 

section). As we explained in our final 

rule, Implementing Changes to the 

Regulations for Designating Critical 

Habitat (81 FR 7414; February 11, 2016), 

the level of specificity in our 

description of essential features is 

primarily determined by the state of the 

best scientific information available for 

the species at issue. The best scientific 

data available indicate that the diet of 

bearded seals is taxonomically diverse, 

and thus specification of particular 

primary prey species is impracticable. 

Still, bearded seals do not consume 

every species of marine organism found 

within the range of the Beringia DPS; 

they are selective. We therefore find that 

the level of specificity provided in the 

regulatory definition of the primary prey 

resources essential feature adopted in 

this final rule is appropriate for defining 

this essential feature based on the best 

scientific data available. Consistent with 

the commenter’s point about bearded 

seals being opportunistic feeders within 

their preferred habitats, in this final rule 

we refer to bearded seals as ‘‘benthic 

generalists’’ rather than the previous 

‘‘benthic specialists.’’ 

Comment 30: One commenter stated 

that we should identify habitat for 

seasonal movements of bearded seals 

(i.e., dispersal and migration) as an 

essential feature, given that we 

indicated in the proposed rule that 

many seals migrate seasonally to 

maintain access to sea ice and, and 

noted that they are also known to 

migrate between foraging patches. The 

commenter stated that we should 

overlay information from bearded seal 

telemetry studies off Alaska with the 

critical habitat map to ensure that 

important migratory and dispersal 

habitat falls within the critical habitat 


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boundaries, and then include such 

habitat as a separate essential feature. 

Response: Many bearded seals do 

make north-south movements associated 

with the annual retreat and advance of 

sea ice, and as the commenter noted, 

studies that have inferred locations of 

foraging activity for bearded seals tagged 

in Alaska based on movement and dive 

data show some overlap in areas used 

extensively by individual seals. 

However, the spatial patterns of habitat 

use and locations of intensive use can 

vary substantially among individuals. 

The tracking information available also 

represents habitat use by primarily 

juvenile tagged bearded seals and it is 

unknown how representative it is for 

older animals. Moreover, bearded seals 

have a widespread distribution and can 

range widely. Thus, based on the best 

scientific data available, we are unable 

to identify specific physical or 

biological features indicating that a 

given area constitutes migratory and 

dispersal habitat. We note, however, 

that the late spring to early summer time 

period during which bearded seals use 

sea ice habitat essential for molting 

coincides with when the sea ice edge 

retreats northward. Thus, there is some 

temporal overlap between when this 

essential feature is used by bearded 

seals and seasonal movements of those 

seals that follow the receding ice edge 

northward. 

Comment 31: Two commenters stated 

that the essential features and expansive 

area proposed for designation do not 

account for the observed flexibility and 

resilience of bearded seals, their wideranging movements, and their broad 

dietary preferences and behavior, due to 

widely variable conditions from year to 

year regardless of climate change. 

Response: We acknowledge that 

bearded seals can make wide-ranging 

movements, have diverse diets, and 

inhabit a range of sea ice conditions. 

Nevertheless, as discussed elsewhere in 

this final rule, bearded seals require 

suitable sea ice for whelping, nursing, 

and molting, as well as primary prey 

resources in waters 200 m or less in 

depth 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 (see Special 

Management Considerations or 

Protection section). 

Comment 32: We received several 

comments, including from the BOEM, 

Bureau of Land Management (BLM), and 

the North Slope Borough, 

recommending that we remove the 

proposed essential feature of acoustic 

conditions that allow for effective 

communication by bearded seals for 

breeding purposes. Commenters 

expressed the following concerns: (1) 

There is insufficient information 

currently available regarding bearded 

seal breeding behavior and acoustic 

conditions to determine whether this 

feature is essential or that its inclusion 

in the designation would benefit the 

species; (2) the area proposed for 

designation is too expansive with 

respect to this proposed essential 

feature; (3) the proposed definition of 

the feature is too vague and no criteria 

were specified that could be used to 

determine whether impacts to this 

proposed essential feature are likely to 

occur; and (4) there is insufficient 

information currently available to 

accurately assess the potential effects of 

noise-related activities on this proposed 

essential feature, or to identify projectspecific mitigation measures, which 

would make it difficult to address 

effects of such activities on this feature 

through a destruction or adverse 

modification analysis. Additionally, 

commenters stated that this proposed 

essential feature is not consistent with 

the ESA, as it reflects the absence of 

certain sounds levels, and as such, they 

believe it is not a tangible physical or 

biological feature that can be found in 

a specific area. Further, these 

commenters stated that any potential 

effects of noise are properly considered 

in section 7 consultations as effects on 

the seals under the jeopardy standard. 

One commenter also stated that if this 

essential feature is included in the 

designation, we should exclude areas 

with existing anthropogenic noise (e.g., 

ports, villages, other infrastructure, 

areas of shipping, etc.) because this 

feature would not be found in those 

areas. Finally, BLM stated that prior to 

including the acoustic environment as 

an essential feature of critical habitat, 

we should develop this concept further 

by perhaps initiating research into the 

acoustic needs of breeding bearded seals 

or establishing a working group to 

identify information needs and establish 

guidelines and metrics for 

understanding acoustic impacts to 

bearded seal habitat. 

Response: In the proposed rule, we 

identified ‘‘acoustic conditions that 

allow for effective communication by 

bearded seals for breeding purposes 

within waters used by breeding bearded 

seals’’ as an essential feature because 

acoustic communication plays an 

important role in bearded seal 

reproductive behavior. However, we 

acknowledged the limited nature of the 

scientific data available to inform our 

identification of this feature, requested 

comment, and indicated that we would 

re-evaluate the feature in developing the 

final critical habitat designation for the 

Beringia DPS. After carefully 

considering public comments and the 

best scientific data available, we have 

concluded that at this time, we are 

unable to describe the acoustic feature 

in sufficient detail to provide a 

reasonable basis upon which to identify 

when and where the feature occurs or 

adequately assess the possible impacts 

of future activities on such a feature. We 

therefore are not including an acoustic 

feature in the critical habitat 

designation. However, we may in the 

future consider developing guidelines 

for understanding acoustic impacts to 

bearded seal habitat, as suggested by 

BLM. 

We have included a qualitatively 

defined feature (or characteristic of a 

feature) pertaining to acoustic 

conditions in previous critical habitat 

designations for Main Hawaiian Islands 

insular false killer whales (83 FR 35062, 

July 24, 2018) and Cook Inlet beluga 

whales (76 FR 20180, April 11, 2011). 

For Cook Inlet beluga whale critical 

habitat, the feature is focused on noise 

levels that do not lead to abandonment 

of the area, and for Main Hawaiian 

Islands insular false killer whales, the 

characteristic of a feature is focused on 

sound levels that would not 

significantly impair whales’ use or 

occupancy. Thus, in contrast to the 

acoustic feature we proposed for the 

Beringia DPS, the feature included in 

these designations relates to use or 

occupancy of critical habitat by a 

species with a limited range or area of 

occupancy. 

The protections of the ESA and the 

need to consult apply when a proposed 

Federal action may affect a listed 

species and/or designated critical 

habitat. We will continue to consider 

and address the effects of anthropogenic 

noise on bearded seals in consultations 

under section 7 of the ESA (under the 

jeopardy standard). Scientific 

understanding of the acoustic ecology of 

bearded seals is continuing to advance 

and will enhance our ability to consider 

the impacts of sound in our analyses of 

effects to bearded seals through sections 

7 consultations. For example, a recent 

study by Sills et al. (2020a) has 

quantified bearded seals’ ability to 

detect specific sounds embedded within 

background noise. 

Comment 33: Several commenters, 

including the Marine Mammal 


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Commission and the Native Village of 

Kotzebue, stated the proposed acoustic 

essential feature should be included in 

the designation, and two commenters 

suggested that we expand the proposed 

definition of this feature beyond the 

focus on bearded seal communication 

for breeding purposes because the seals 

rely on acoustic communication at other 

times as well. Most of the commenters 

expressed concerns about the potential 

for impacts on bearded seal 

communication from anthropogenic 

noise, and noted that reduced ice cover 

under a changing climate will result in 

an increasingly noisy environment, 

including from physical factors 

associated with ice cover changes, and 

potentially from increased intraspecific 

competition in shrinking areas of 

suitable habitat. 

Response: As we explained in our 

previous response (to Comment 32), 

after carefully considering public 

comments and the best scientific data 

available, we have concluded that at 

this time, we are unable to adequately 

characterize the acoustic conditions that 

allow for effective communication by 

bearded seals for breeding purposes (or 

what constitutes ‘‘effective 

communication’’) and to thereby 

provide a reasonable basis upon which 

to identify when and where the feature 

occurs, and assess possible impacts to 

such a feature. We therefore are not 

including an acoustic feature in this 

critical habitat designation. We agree 

with the commenters that acoustic 

conditions that allow for effective 

communication and other uses of sound 

by bearded seals are important for the 

conservation of the species. We will 

continue to consider and address the 

effects of anthropogenic noise on 

bearded seals in consultations under 

section 7 of the ESA. We will also 

consider results of future studies related 

to acoustic conditions for bearded seals, 

and we can consider revising the critical 

habitat designation in the future as 

warranted. 

Specific Areas 

Comment 34: We received a number 

of comments that expressed support for 

the proposed designation, and several 

commenters including the Marine 

Mammal Commission and Kawerak 

indicated that they concurred that the 

proposed critical habitat contains the 

physical and biological features 

essential to the conservation of the 

Beringia DPS. 

Response: We acknowledge these 

comments. We note that we made some 

changes to the proposed designation, 

which are described in the Summary of 

Changes From the Proposed Designation 

section of this final rule. 

Comment 35: Several commenters 

stated that the proposed designation is 

overbroad because it includes most of 

the geographical area occupied by the 

Beringia DPS 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 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 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 bearded 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 

Beringia DPS was identified in the final 

ESA listing rule (77 FR 76740; 

December 28, 2012) as the Arctic Ocean 

and adjacent seas in the Pacific Ocean 

between 145° E longitude and 130° W 

longitude, except west of 157° E 

longitude, or west of the Kamchatka 

Peninsula, where the Okhotsk DPS of 

the bearded 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 


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the United States that bearded seals of 

the Beringia DPS 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 

south over the continental shelf 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 

Beringia DPS in this final rule contains 

the physical and biological features 

identified as essential to the 

conservation of the Beringia DPS and 

that may require special management 

considerations or protection. This 

critical habitat is a subset of the habitat 

occupied and used by bearded seals of 

the Beringia DPS in U.S. waters, and it 

is also a subset of the habitat that is 

occupied and used by this species in 

their broader distribution beyond U.S. 

waters. Moreover, because all of the 

Beringia DPS’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 

the Beringia DPS. 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 

the specific areas 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 bearded seals, 

and the dynamic variations in sea ice 

cover result in individuals distributing 

broadly and using sea ice habitats 

within a range of suitable conditions. 

Therefore, our delineation of critical 

habitat for the Beringia DPS 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 

molting, the widespread distribution of 

bearded 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 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 Beringia DPS bearded 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 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 Beringia DPS 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 36: 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 

bearded seals for critical life functions. 

Some commenters contended that the 

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 the designation 

should identify continental shelf waters 

in depths over 3 m as critical habitat 

used in summer/fall, and the southern 

ice front and lead system as critical 

habitat used in winter/spring, stating 

that there are few bearded seals in the 

Beaufort Sea in winter/spring because 

they avoid fast ice, pack ice away from 

leads, and ice over deep water beyond 

the shelf break. 

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 


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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 

involving Beringia DPS bearded 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 bearded 

seals use or occupy. For example, the 

construction of an offshore facility when 

sea ice is not present could still render 

some bearded 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. 

Comment 37: One commenter 

requested that we consider basing the 

southern boundary of critical habitat on 

the position of the ice edge in March 

instead of April because portions of the 

Bering Sea that are potentially crucial to 

bearded seal reproductive success 

would otherwise be excluded. The 

commenter stated that although we 

indicated that April is the peak month 

for bearded seal whelping, IK indicates 

that bearded seal pups are born by the 

end of March. 

Response: As we explained in the 

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 that 

supports whelping and nursing is found 

on a consistent basis. Because bearded 

seals use nearly the entire extent of pack 

ice over the Bering Sea shelf in spring, 

depending upon ice conditions in a 

given year, some bearded seals may use 

sea ice for whelping south of this 

median ice edge. We acknowledge that, 

as discussed in the proposed rule, 

newborn pups have been observed in 

the Bering Sea from mid-March to early 

May Cameron et al. (2010). However, 

based on the best information available, 

we conclude the main period of bearded 

seal whelping occurs in April. We 

therefore continue to conclude that the 

best scientific data available suggests 

that median position of the ice edge for 

April provides the best estimate of the 

southern extent of where sea ice 

essential for whelping and nursing 

occurs on a consistent basis. This does 

not imply that habitat in the Bering Sea 

not included in the designation is 

unimportant to bearded seals, or may 

not support their conservation. Rather, 

the designation delineates the subset of 

habitat within the area occupied by the 

Beringia DPS 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 reproductive habitat, as well 

as molting habitat, in the Bering Sea. 

Comment 38: One commenter 

asserted that designation of critical 

habitat in the Beaufort Sea east of 

Utqiag ̇vik would have little 

conservation value to the Beringia DPS 

and that this area should therefore not 

be included in the designation. The 

commenter stated that the data currently 

available on bearded seal use of this 

habitat, such as bearded seal sighting 

densities from aerial surveys, which the 

commenter summarized, indicate very 

few bearded seals are present in these 

waters, and that this indicates that the 

area does not does not provide essential 

features in enough quantity or quality to 

support a high number of seals. The 

commenter also noted that the passive 

acoustic studies cited in the proposed 

rule recorded only a small number of 

individuals in the western Beaufort Sea. 

The commenter also pointed out that 

suitable habitat for bearded seals is 

more limited in the Beaufort Sea than in 

the Chukchi and Bering seas, as the 

continental shelf is narrower and the 

pack ice edge frequently occurs seaward 

of the shelf over water too deep for the 

seals to forage, and as such, it provides 

marginal habitat in comparison. 

Response: 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 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, although we may 

elect to use our discretion delegated by 

the Secretary to consider exclusion of 

particular areas under section 4(b)(2) of 

the ESA. The ESA does not mandate the 

exclusion of particular areas, and for the 

reasons discussed in the Analysis of 

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

ESA section of this final rule, we have 

not exercised our discretion to exclude 

any particular areas from the 

designation of critical habitat for the 

Beringia DPS. We agree that the region 

that includes the Bering and Chukchi 

seas forms a much larger area of habitat 

that is known to be highly productive 

for bearded seal foraging and provides 

favorable conditions for bearded seals 

during winter and spring in comparison 

to the Beaufort Sea. However, the best 

scientific data available also indicates 

that critical habitat designated in the 

Beaufort Sea in this final rule is 

occupied by the species and contains 

one or more essential features that may 

require special management 

considerations or protection. As we 

explained in our response to Comment 

17 and in further detail in the following 

response to Comment 39, in developing 

this final rule, we re-evaluated the best 

scientific data available and the 

approach we used to identify specific 

area(s) containing the primary prey 

resources essential feature. As a result of 

this evaluation, the shoreward boundary 

of critical habitat in the Beaufort Sea is 

now defined as the 20-m isobath 

(relative to MLLW). 

Comment 39: BOEM commented that 

during winter/spring bearded seals do 

not use shallow nearshore areas, river 

deltas, or lagoons with water depths less 

than 3 m because the shorefast ice in 

these areas frequently freezes to the 

bottom and into the seabed. In addition, 

they stated that nearshore areas of the 

Beaufort and Chukchi seas included in 

the proposed designation, especially 

shorelines along the coast and around 

islands and some shoals, are surrounded 

by fast ice during winter/spring and 

thus do not meet the proposed 

definition of sea ice essential as a 

platform for molting. Another 

commenter stated that critical habitat 

should be delineated to exclude landfast 


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ice, which they suggested occurs to 

approximately the 20-m isobath (e.g., 

Mahoney et al. 2005, Mahoney et al. 

2007), as well as the transitional zone 

between stationary, landfast ice, and 

pack ice. The commenter noted, as did 

BOEM and BLM, that coastal areas 

where seasonal landfast ice occurs, 

some of which is grounded, do not have 

pack ice; therefore, these areas do not 

contain the sea ice essential features. 

BLM stated that if no additional 

information is forthcoming, we should 

reconsider the nearshore coastal area as 

critical habitat for the Beringia DPS. 

Response: We proposed to designate 

as critical habitat for the Beringia DPS 

one specific area of marine habitat in 

the Bering, Chukchi, and Beaufort seas 

containing one or more of the physical 

and biological features essential to the 

conservation of this species. We 

identified the proposed shoreward 

boundary of this specific area as the line 

of MLLW based on occurrence of the 

primary prey resources essential feature, 

rather than on the sea ice essential 

feature. In response to these and other 

related peer reviewer and public 

comments, we re-evaluated the best 

scientific data available and the 

approach we used to identify specific 

area(s) containing the primary prey 

resources essential feature to determine 

if different boundaries may be 

appropriate. As a result of this 

evaluation, 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 (see also our 

response to Comment 17). 

Our descriptions of sea ice habitat 

essential for whelping and nursing, as 

well as sea ice habitat essential for 

molting, identify such habitat as areas 

with waters 200 m or less in depth 

containing pack ice, i.e., sea ice other 

than fast ice, of suitable concentrations. 

We therefore considered available 

information regarding the spatial extent 

of landfast and its seasonal cycle in the 

Beaufort, Chukchi, and Bering seas 

(Mahoney et al. 2007, Mahoney et al. 

2014, Jensen et al. 2020) to inform our 

delineation of the shoreward boundary 

with respect to occurrence of one or 

both of the sea ice essential features. As 

described in more detail in the Specific 

Areas Containing the Essential Features 

section of this final rule, this 

information indicates that relationships 

between landfast ice and bathymetry 

differ regionally and locally, and there 

are significant inter-annual differences 

in the maximum extent of landfast ice. 

In addition, there is evidence of 

decreases in landfast ice extent in the 

Chukchi and Bering seas and trends in 

earlier landfast ice breakup. It is 

therefore impracticable to delineate a 

single isobath as the shoreward 

boundary for the specific area 

containing one or both of the sea ice 

essential features that accounts 

precisely for where landfast may occur 

in a given year during the period of 

whelping, nursing, and molting. 

However, we concluded that defining 

the nearshore boundary by a depth 

contour at a coarse level for each region 

is appropriate given that landfast ice 

forms in areas of shallow bathymetry 

and such ice is not identified as 

essential to the conservation of the 

Beringia DPS. Because the best scientific 

data available indicates that in the 

Beaufort region (northeastern Chukchi 

Sea and Beaufort Sea), the 20-m isobath 

provides a reasonable approximation of 

the average stable extent of landfast ice, 

and landfast ice extent has not changed 

significantly in the past several decades, 

we have identified the shoreward 

boundary of critical habitat in the 

Beaufort Sea as the 20-m isobath 

(relative to MLLW). The available 

information indicates that in the 

Chukchi and Bering regions (Chukchi 

extending south of Wainwright to the 

top of the northern Seward Peninsula 

and the Bering Sea extending to 

Kuskokwim Bay), landfast ice occupies 

shallower water overall. We considered 

the best available information on 

landfast ice in determining the 

shoreward boundary of critical habitat 

in each region, which is identified as 

the 10-m isobath (relative to MLLW) in 

the Chukchi region, and the 5-m isobath 

(relative to MLLW) in the Bering region. 

The shoreward boundary of the 

designation is not intended to delineate 

where landfast ice is uniformly present 

every year, but rather to define the 

specific area that contains all of the 

identified essential features at an 

appropriate scale based on the best 

scientific data available. 

Comment 40: BOEM recommended 

that the designation focus on areas of 

greatest prey abundance and suggested 

that to address this we remove areas that 

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 bearded 

seals to persist. They went on to state 

that many shallow nearshore areas 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. BLM similarly noted the 

potential for bottom-fast ice and 

scouring effects on nearshore benthic 

communities, and requested that we 

provide information that supports that 

nearshore areas have a benthic 

community to support bearded seals 

such that those areas qualify as critical 

habitat. BLM stated that we should 

present a more comprehensive analysis 

of bearded seal prey resources by 

providing information on the ranges and 

distributions of bearded seal prey 

species (both fish and benthic species), 

and noted that there is a lack of 

information considered in the critical 

habitat analysis on benthic 

communities, especially in the 

nearshore. BLM added that we should 

include an analysis of this information 

relative to where prey species 

distributions overlap with bearded seal 

habitats, and where there is greatest 

prey species abundance, including 

seasonally. They stated that the 

proposed rule gives the impression that 

prey species are distributed 

homogenously throughout the Beringia 

DPS’s range, although this is most likely 

not the case. 

Response: As we explained in our 

responses above to Comments 17 and 

39, we re-evaluated the best scientific 

data available and the approach we used 

to identify the proposed boundaries of 

critical habitat with respect to the 

primary prey resources essential feature 

to determine if they were drawn 

appropriately. As a result of this 

evaluation, we now identify as critical 

habitat the specific area that contains all 

of the essential features based on our 

delineation of the boundaries for the sea 

ice essential features, with the 

shoreward boundary of the designation 

defined by particular isobaths. As 

discussed previously, the movements of 

bearded seals and their use of habitat for 

foraging are influenced by a variety of 

factors, including the seasonality of ice 

cover, the seals forage throughout the 

year, and they are broadly distributed 

and can range widely. In addition, 

bearded seals have a diverse diet with 

a large variety of prey items, and diet 

can vary seasonally and geographically. 

Our delineation of critical habitat in this 

final rule is based on the best 

information available regarding the cooccurrence of bearded seal primary prey 

species and the sea ice essential 

features, including information on the 

distribution of prey and their 

documented occurrence within the 


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geographical area specified. The 

commenters did not provide any 

relevant literature or data that would 

support the identification of specific 

thresholds of minimum abundance for 

bearded seal primary prey species, nor 

of specific areas where concentrations of 

the prey species are found on a 

recurrent basis within bearded seal 

habitats in Alaska. Habitat selection by 

bearded seals with respect to prey is not 

well understood. While it is likely that 

bearded 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. 

Comment 41: 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: As we explained in the 

proposed rule, the temporal overlap of 

bearded seal molting with whelping and 

nursing, combined with the dynamic 

nature of sea ice, makes it impracticable 

to separately identify specific areas 

where each of the sea ice essential 

features occurs. Further, as we have 

previously stated, bearded seals forage 

throughout the year and their 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 42: BOEM stated that it is 

not clear whether certain areas proposed 

as critical habitat in the Bering and 

Chukchi seas contain enough suitable 

food resources to support the long-term 

survival of the Beringia DPS and that 

additional analyses are necessary to 

support designation for areas that are 

dominated by pelagic species. They 

stated that the northern Bering Sea 

underwent a regime shift in the 1980s 

to a pelagic system from what was 

previously a very productive benthic 

system, and referred to studies 

conducted in recent years in the 

Chukchi Sea indicating a similar regime 

shift is now occurring or has already 

occurred in the southern Chukchi Sea, 

south of Cape Lisburne. 

Response: 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 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. As we described in 

the Physical and Biological Features 

Essential to the Conservation of the 

Species section of this final rule, the 

best scientific data available indicate 

that bearded seals have a diverse diet 

with a large variety of prey items, and 

diet can vary seasonally and 

geographically. Further, these data 

indicate that the shallow seasonally icecovered waters of the Bering and 

Chukchi, seas support an abundance of 

bearded seal benthic prey resources. 

Moreover, the habitat features that 

bearded seals rely upon are dynamic 

and variable on both spatial and 

temporal scales. While we acknowledge 

that bearded seals forage on patchily 

distributed benthic prey, there is 

insufficient information available about 

their prey distributions to be more 

specific about smaller areas. As such, 

we identified where one or more of the 

essential features occurs at a coarse 

scale, because this is as much specificity 

as the best scientific data available 

allow. Based on the best scientific data 

available, we determined that the prey 

resources essential to the conservation 

of the Beringia DPS occur throughout 

the specific area that we are designating 

as critical habitat, and that this feature 

may require special management 

considerations or protection. 

Changes in the distribution, 

abundance, and/or species composition 

of bearded seal primary prey resources 

are likely due to changes in ocean 

conditions related to climate change 

(e.g., ocean warming, decreases in ice 

cover, ocean acidification). However, 

the extent and timing of such changes 

remain uncertain, and the possibilities 

are complex (see, e.g., review of bearded 

seal prey communities in the status 

review of the bearded seal by Cameron 

et al. (2010)). Thus, given that the 

quality and quantity of primary prey 

resources essential to support bearded 

seals may be diminished by the effects 

of climate change, we identify climate 

change as a source of threats to this 

essential feature that may require 

special management considerations or 

protection. Finally, while we recognize 

that reductions in sea ice coverage and 

increasing ocean temperatures could 

shift the benthic-dominated systems in 

the northern Bering and Chukchi seas to 

be more pelagic-dominated, we do not 

agree there is scientific consensus that 

the ‘‘northern Bering Sea underwent a 

regime shift in the 1980s to a pelagic 

system,’’ as suggested by the 

commenter. 

Comment 43: 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 bearded seal conservation 

as the Arctic continues to experience 

changes. 

Response: As we explained in our 

response to Comment 40, 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 based on the best scientific 

data available. 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 bearded 

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 44: One commenter stated 

that identifying areas containing prey is 

not sufficiently precise to describe a 

specific area or feature that, by statute, 

is required to be both specific and 

essential to the conservation of the 

species. The commenter stated that they 

agree that certain prey species may 

occur in nearshore waters in the Bering, 

Chukchi, and Beaufort seas, but that we 

acknowledge that the diverse 

assemblage of prey species consumed by 

bearded seals includes both benthic and 

pelagic species, and such a diversity of 

prey may occur throughout the entire 

region of the Bering, Chukchi, and 

Beaufort seas. They asserted that we 

should revise the proposed designation 

to delineate a primary foraging area 

where these prey species are 


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concentrated instead of including areas 

where prey species may occur, and that 

this should reflect the best available 

science regarding limited presence of 

bearded seals in the western Beaufort 

Sea, preference of pack ice over landfast 

ice, and diversity of diet. 

Response: Neither the ESA 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. Rather, under the ESA we 

identify what prey are essential to the 

conservation of the Beringia DPS and 

then identify where those prey occur 

within the geographical area occupied 

by the species. The ESA does not 

require that before designating an area 

as critical habitat we demonstrate that 

bearded 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). The 

commenter did not provide any relevant 

literature or data that would support the 

identification of specific areas where 

concentrations of the primary prey 

species are found on a recurrent basis 

within habitat occupied by bearded 

seals in Alaska. Based on the best 

scientific data available, and consistent 

with the ESA, we determined that the 

primary prey resources essential to the 

conservation of the Beringia DPS occur 

throughout the specific area we are 

designating as critical habitat. 

Comment 45: One commenter stated 

that 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 

Beringia DPS and in need of special 

management considerations or 

protection, and that the 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 bearded seals actually 

feed on their primary prey, as we 

indicated earlier in our response to 

Comment 44, under the ESA we identify 

what prey are essential to the 

conservation of the Beringia DPS 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 the Beringia DPS 

occur throughout the specific area we 

are designating as critical habitat. 

Comment 46: BLM stated that the 

proposed rule was unclear regarding the 

overlap in nearshore areas between the 

essential feature of acoustic conditions 

that allow for effective communication 

by bearded seals and the sea ice 

essential features. They stated that 

based on the description in the 

proposed rule, bearded seal breeding 

habitat does not appear to include 

nearshore, landfast ice areas. However, 

they asked us to clarify and explain 

with supporting information whether 

nearshore areas in the Beaufort Sea 

contain the acoustic essential feature. 

They also requested a detailed critical 

habitat map that represents the acoustic 

essential feature. 

Response: As we explained in our 

earlier response to Comment 32, after 

carefully considering the best scientific 

data available, we have concluded that 

at this time, our scientific 

understanding is not adequate to 

sufficiently characterize an acoustic 

essential feature so as to provide a 

reasonable basis upon which to identify 

when and where such a feature occurs. 

Therefore, we have not included an 

acoustic feature in this designation. 

Comment 47: BOEM stated that, 

although it is clear in the preamble to 

the proposed rule that critical habitat for 

the Beringia DPS 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 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)). 

Special Management Considerations or 

Protection 

Comment 48: BOEM stated that 

because sea ice is projected to continue 

to retreat northward, we should provide 

data and analysis of how the geography 

of the critical habitat for the Beringia 

DPS 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 

bearded seals long into the future, as 

this would help emphasize the need for 

further development of geographic 

solutions for habitat conservation. 

Response: In our evaluation of 

whether the essential features of critical 

habitat for the Beringia DPS 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 whelping and 

nursing and/or molting the longest. 

Regarding the 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 49: One commenter stated 

that climate change, driven by 

anthropogenic emissions of GHGs, poses 

an existential threat to the Beringia DPS, 

and noted that climate change impacts 

on bearded seals include changing 

temperatures, rapid loss of sea ice, 

altered precipitation regimes, ocean 

acidification, extreme weather events, 


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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 bearded 

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 proposed rule, we 

identified climate change as one of four 

primary sources of threats to the 

identified essential features of critical 

habitat for the Beringia DPS 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 these and other peer 

reviewer and public comments, in this 

final rule we have added ocean warming 

and acidification to our discussion of 

impacts on the essential features from 

climate change. 

Comment 50: One commenter 

requested that we remove the following 

statement in the 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 

Beringia DPS.’’ 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, citing 

related scientific publications. The 

commenter further stated that GHG 

emissions from individual projects 

cumulatively contribute to habitat 

degradation and loss for the Beringia 

DPS, 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 critical 

habitat for the Beringia DPS. 

Comment 51: Two commenters 

provided information concerning 

regulation of the commercial crab and 

groundfish fisheries and measures taken 

to minimize impacts of these fisheries 

on harvested species and benthic habitat 

and organisms. One of the commenters 

stated that with changing environmental 

conditions there could be more 

commercial fisheries moving north into 

designated critical habitat, but if 

commercial crab fisheries follow this 

pattern, they do not believe that it 

would have substantial impacts on 

bearded seals. The other commenter 

stated that the seafloor effects of trawl 

gear discussed in the proposed rule did 

not reflect the best available information 

because, with the required gear 

modification for flatfish trawls 

developed through the essential fish 

habitat process, it is highly unlikely that 

these fisheries would have any 

significant effect on seafloor habitat that 

would affect bearded seal prey species. 

The commenter also noted that of the 

bearded seal prey species identified, 

sculpins are most often encountered by 

their fleet, but they are not targeted or 

retained, and that observer data 

indicate, on average, less than one 

metric ton of saffron cod catch annually 

and essentially no catch of Arctic cod. 

Response: In determining whether the 

essential features of critical habitat for 

the Beringia DPS 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 

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 53: Several commenters 

expressed concerns over potential 

impacts to bearded seals from 

commercial fisheries, in particular from 

bottom trawling activities. Specifically, 

they expressed concerns about the risk 

of incidental mortality of bearded seals 

if bottom trawlers are allowed further 

north into the northern Bering Sea and 

Bering Strait region. They noted that 

there is also concern about potential 

impacts on bearded seals from hook 

injuries due to the 2019 arrival of a 

large-scale Pacific cod longline fleet to 

this region. Two other commenters 

expressed concern about potential 

impacts of commercial bottom trawl 

fishing on bearded seal prey species, 

such as yellowfin sole, in the Bristol 

Bay region. One of the commenters, an 

Alaska Native hunter, reported past 

observations of bearded seals feeding on 

herring in bays located south of the 

proposed critical habitat and expressed 

concern that fishing activities have 

reduced herring biomass. 

Response: We understand the concern 

expressed by the commenters that 

commercial fisheries may impact 

bearded seal prey resources. Designation 

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. Therefore, 

once the critical habitat designation for 

the Beringia DPS 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 bearded seals by direct 

interactions with commercial fishing 

gear (e.g., hookings or entanglements), 

such impacts are considered threats to 

individual bearded 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 bearded 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 Beringia DPS. 

Comment 53: Several commenters 

expressed concerns over the potential 

impacts of vessel traffic, in particular 

icebreakers, on bearded seals, e.g., 

during the whelping and nursing 

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 


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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 critical 

habitat for the Beringia DPS, 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 Beringia DPS 

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 54: 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 

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 of 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 critical habitat for 

the Beringia DPS 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 55: 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 

Beringia DPS 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 critical 

habitat for the Beringia DPS (relatively 

few relevant consultations were 

identified for the 3 years prior to when 

the Beringia DPS 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 the Beringia DPS 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 

the 10-year time period, we believe that 

the estimated economic impacts of the 

designation over the next 10 years 

generally reflect the nature and relative 

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 

beluga, 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 

76740, December 28, 2012). 


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Comment 56: 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 Beringia DPS. 

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 Beringia DPS 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 critical habitat 

designated for the Beringia DPS 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 

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 critical 

habitat for the Beringia DPS. 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 


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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 bearded seals. These 

consultations typically analyze habitatrelated 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 57). 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 57: 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 56, 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 Beringia DPS. 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 bearded 

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 critical habitat 

for the Beringia DPS 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 Beringia 

DPS 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 

critical habitat for the Beringia DPS 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 

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 above to 

Comment 56. 

Comment 58: 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 wellestablished mandates of Federal law. 


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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 Beringia DPS within 

the 10-year post-designation timeframe, 

in discounted present value terms, were 

estimated at $563,000 (discounted at 7 

percent) to $658,000 (discounted at 3 

percent). About 81 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 Beringia DPS 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 

bearded seal critical habitat to section 7 

consultations that are already required 

to address effects to bearded seals (and 

potentially other listed species). At this 

time, we have no information to suggest 

incremental project modification 

requests are likely to result from these 

consultations above and beyond any 

modification requests related to 

addressing impacts to bearded seals. 

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 the 

Beringia DPS. 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 above to Comment 56 

regarding potential indirect impacts of 

the designation, and Comment 57, 

regarding section 7 consultation costs, 

generally. 

Comment 59: 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 would result in 

additional requests for project 

modifications attributable to the critical 

habitat designation given the nature of 

these activities, their potential to affect 

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 57. 

Comment 60: 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 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 


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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 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 above to Comment 57, 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 Beringia DPS. 

Comment 61: 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 critical habitat 

designation for the Beringia DPS. 

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 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 

critical habitat for the Beringia DPS 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 Beringia DPS 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 proposed rule. 

Comment 62: BLM stated that the 

costs associated with the proposed 

critical habitat designation were 

underestimated because we did not 

address the potential costs of acoustic 

studies, including the development of 

acoustic models, that they believe 

would be needed to understand and 

mitigate impacts to the proposed 

acoustic environment essential feature. 

They recommended that we revise the 

economic analysis to incorporate 

estimates of these potential costs and to 

identify the parties that would bear such 

costs. 

Response: As we explained in our 

response above to Comment 32, this 

final rule does not include the proposed 

acoustic essential feature, and we have 

therefore evaluated the impacts of the 

critical habitat designation based solely 

on the sea ice essential features and the 

primary prey resources essential feature. 

Comment 63: One commenter stated 

that portions of the proposed critical 

habitat, particularly along its southern 

edge and southwest of Nunivak Island, 

can be important to the groundfish 

fisheries in some years, in particular for 

species such as yellowfin sole. The 

commenter noted that variability in the 

harvest in recent years seems to be 

partially related to annual climate 

conditions, especially the extent of the 

Bering Sea cold pool, and recommended 

that given this variability, commercial 

fisheries data for additional years be 

included in the analysis of impacts of 

the designation. 

Response: In response to this 

comment, we have incorporated 

groundfish fisheries harvest data for 

additional years into the Final Impact 

Analysis Report. 

Comment 64: Two commenters 

indicated that they appreciated that we 

clearly stated in the 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. 

Benefits of Critical Habitat Designation 

Comment 65: Several commenters, 

including the State of Alaska (ADNR 

and ADF&G) stated that bearded 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 


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regulated pursuant to the MMPA to 

ensure that they have no more than a 

negligible impact on bearded 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 Beringia DPS, 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 

Beringia DPS critical habitat. For 

example, regulations under the MMPA 

provide specific protections for bearded 

seals but they do not specifically protect 

the essential features and conservation 

value of critical habitat for the Beringia 

DPS. 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. Bearded 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. 

Polar bear critical habitat does not 

explicitly protect the physical and 

biological features essential to the 

conservation of the Beringia DPS. 

Further, section 7 consultations 

involving polar bear critical habitat 

would not address impacts to bearded 

seals’ habitat. 

Comment 66: 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 the Beringia 

DPS 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 Beringia DPS, 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 

proposed rule and in our response 

above to Comment 35, bearded 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, as this 

is as much specificity as the best 

scientific data available allows. 

Our critical habitat determination for 

the Beringia DPS 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 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 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, 


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which can stimulate research, as well as 

outreach and education activities. 

Comment 67: 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 bearded seals of 

the Beringia DPS 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 that 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 bearded 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 bearded seals in addition to 

protecting the essential features on 

which the species relies. 

In addition, as we explained in our 

response above to Comment 66, 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 68: A number of 

commenters stated that critical habitat is 

important to supporting the 

conservation of bearded 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 ringed seals. 

Response: We agree with these 

comments. 

Comment 69: 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 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 bearded seals, Arctic 

ringed 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 

conclude that designation of critical 

habitat for the Beringia DPS 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 Beringia DPS 

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 the Beringia DPS, 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 70: 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 


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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 bearded seals, are not 

expected to threaten the species or its 

habitat in the foreseeable future, as 

evidenced in the final rule listing the 

Beringia DPS 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 bearded 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 bearded 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 Beringia DPS within 

the 10-year post-designation timeframe, 

in discounted present value terms, were 

estimated at $563,000 (discounted at 7 

percent) to $658,000 (discounted at 3 

percent). About 81 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 conclude 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 the Beringia DPS. 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 critical habitat 

for the Beringia DPS, 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 71: 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 bearded seals, nor do 

they require special management 

considerations or protection; (2) the 

areas are extremely small relative to the 

amount of habitat available to bearded 

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 bearded 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 the 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 bearded seals themselves. 

In other words, for activities such as 

dredging and screeding, the requirement 

to consult under section 7 of the ESA 

would be triggered even in the absence 

of Beringia DPS critical habitat. These 

consultations typically analyze habitatrelated effects to the seals, even in the 

absence of a critical habitat designation. 

While Federal actions that may affect 

the essential features of critical habitat 

for the Beringia DPS will require an 

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 


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physical or biological features essential 

to the conservation of the Beringia DPS, 

not whether use of these areas is 

essential to conservation of bearded 

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. Finally, 

because we have revised the proposed 

shoreward boundary of critical habitat 

in this final rule, the areas that the 

commenter requested be excluded are 

not included in the final designation, as 

the shoreward boundary in the Beaufort 

Sea is now defined as the 20-m isobath 

(relative to MLLW) rather than as the 

line of MLLW (see Summary of Changed 

From the Proposed Designation). 

Comment 72: 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 bearded 

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 infrastructurerelated 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 

bearded seals. 

Response: While we recognize that 

the proximity of a number of coastal 

communities and certain other 

developed sites to Beringia DPS 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 

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 also our 

response to Comment 59). 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, 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 critical habitat because 

the shoreward boundary of the 

designation has been shifted seaward to 

the 20-m isobath (relative to MLLW) in 

the Beaufort Sea and northeastern 

Chukchi Sea, the 10-m isobath (relative 

to MLLW) in the remainder of the 

Chukchi Sea, and the 5-m isobath 

(relative to MLLW) in the Bering Sea, 

from the proposed boundary of MLLW 

(see Summary of Changes From the 

Proposed Designation section). 

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 Alaska Natives make 

important contributions to the 

conservation and management of 

bearded 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 Beringia 

DPS’s 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 the 

Beringia DPS, and there are 

conservation benefits to bearded 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 27. 

Comment 73: 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 

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 


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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 Beringia DPS 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 74: 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 Beringia 

DPS, 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 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 

Beringia DPS 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 

Beringia DPS 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 

Beringia DPS 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 the 

Beringia DPS. Critical habitat is now 

determinable. 

With regard to making a ‘‘not 

prudent’’ determination, our regulations 

at 50 CFR 424.12(a)(1) provide a nonexhaustive 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 

§ 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 Beringia DPS is threatened 

throughout all of its range by ongoing 

and projected reductions in sea ice 

habitat (77 FR 76740, December 28, 

2012). Further, the threats to the 

essential features of Beringia DPS 

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 proposed rule, 

we identified four primary sources of 

threats to the essential features of 

Beringia DPS 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 Beringia DPS 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 the 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 Beringia DPS 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 

species, and a specific area meets the 

definition of critical habitat. 

Comment 75: Several commenters 

stated that critical habitat is 

unnecessary to conserve the Beringia 

DPS 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 Beringia DPS 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 74, 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 trends are 

relevant to ESA listing decisions (and 

were addressed in the final rule listing 

the Beringia DPS as threatened; see 77 

FR 76740, 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 76: One commenter stated 

that we should delay designation of 

critical habitat until after completing the 

ongoing 5-year review of the species 

under the ESA. 

Response: The ESA requires us to 

designate critical habitat, to the 

maximum extent prudent and 

determinable, at the time species are 


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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 77: 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 

Beringia DPS. 

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 the Beringia DPS 

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 the Beringia DPS. We note, however, 

that the new regulatory definition of 

‘‘habitat’’ is consistent with our 

consideration of habitat in designating 

critical habitat for the Beringia DPS. 

Comment 78: 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 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 bearded 

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 the Beringia DPS, and 

recognize that Alaska Native subsistence 

hunting communities have unique 

knowledge of bearded 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 

bearded seals and sought their input 

beginning in 2013. Prior to developing 

a 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 proposed designation 

and related information. In January 

2021, we notified the Ice Seal 

Committee by email in advance of the 

scheduled publication of the proposed 

rule, and we subsequently followed up 

by letter regarding the 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 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 

23. 

Regarding the comment concerning 

review of the 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 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 79: 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 

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 


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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 Beringia DPS and discuss 

any concerns they may have. We 

received no requests for consultation in 

response to that mailing. 

Comment 80: 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 

proposed critical habitat designation. 

Response: The commenter may be 

referring to the eRulemaking Portal 

where we accepted electronic comments 

on the 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 proposed rule, which may 

have complicated use by the 

commenter. Although electronic 

comments on the 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 81: 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 the Beringia DPS 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 bearded seals 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 82: 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 the Beringia DPS 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 bearded seals, and 

their habitat. They noted that this 

strategy should be supported by work 

with Federal and state agencies, comanagement 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 bearded 

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 bearded 

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. 

Comment 83: Two commenters stated 

that although there are sufficient data 

available to support the designation, 

additional studies and data are needed. 

Response: As we explain elsewhere in 

this final rule (see Critical Habitat 

Definition and Process section), the ESA 

requires that we base critical habitat 

designations on the best scientific data 

available, provided that these data form 

a sufficient basis to determine that the 

ESA’s standards are met for the specific 

area designated, and we have done so in 

this final rule. Nonetheless, we agree 

that additional research would add to 

the ecological knowledge of this species 

and potentially improve conservation 

efforts and management decisions. 

Comment 84: One commenter cited 

several references pertaining to sea ice 

extent and dynamics that they stated 

provide additional recent information 

we should consider relative to bearded 

seal seasonal movements. 

Response: We reviewed and 

considered the references provided by 

the commenter; however, we found they 

do not provide new information that 

changed our understanding of bearded 

seal seasonal movements. 

Summary of Changes From the 

Proposed Designation 

Based on our consideration of 

comments and information received 

from peer reviewers and the public on 

our January 9, 2021, proposed rule (86 

FR 1433), and additional information 

we reviewed as part of our 

reconsideration of issues discussed in 

the 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) Eliminated as an essential feature 

‘‘acoustic conditions that allow for 

effective communication by bearded 

seals for breeding purposes within 

waters used by breeding bearded seals.’’ 

In the proposed rule, we identified an 

acoustic-related essential feature 

because acoustic communication plays 

an important role in bearded seal 

reproductive behavior. We explained 

that, although we recognized the limited 

nature of the scientific data available to 

inform our identification of acoustic 

conditions as an essential feature, this 

information represented the best 

scientific information available, and we 

were not aware of any other data that 

would allow us to describe in greater 

detail the acoustic conditions necessary 


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to avoid impairing affective 

communication by bearded seals for 

breeding purposes. We indicated that 

we would re-evaluate this proposed 

essential feature in developing the final 

critical habitat designation for the 

Beringia DPS. We specifically solicited 

comments concerning the proposed 

inclusion of acoustic conditions as an 

essential feature, as well as additional 

data that would assist Federal action 

agencies and NMFS in determining 

characteristics of noise that result in 

adverse effects on the feature. Several 

public comments expressed support for 

inclusion of this proposed essential 

feature, and most noted concerns about 

potential impacts on bearded seal 

communication from anthropogenic 

noise and other factors. In addition, 

some peer reviewers and commenters 

identified scientific literature that they 

suggested might provide relevant data. 

Other public comments questioned the 

validity of acoustic conditions as an 

essential feature, arguing that our 

qualitative description was too vague, 

and that lack of available information 

regarding the relevant acoustic 

conditions would make it difficult to 

identify and meaningfully evaluate 

when an activity may have an effect or 

to determine what management actions 

and mitigation measures for acoustic 

conditions would benefit the 

conservation of the species. 

In conducting our re-evaluation of the 

proposed acoustic conditions essential 

feature, we re-examined the information 

supporting the identification of this 

feature and where it occurs. We also 

reviewed and considered comments and 

additional relevant information received 

from peer reviewers and the public, 

including new information that became 

available after we developed the 

proposed rule, to determine whether 

additional relevant scientific data were 

available to further support or refine our 

approach in the proposed rule. 

Throughout our review, we considered 

whether we could sufficiently 

characterize the acoustic conditions that 

are essential to bearded seal 

communication for breeding purposes, 

in light of what is known. 

As we described in the proposed rule, 

male bearded seals vocalize intensively 

during the breeding season, and their 

vocalizations have been studied in 

detail. Male vocalizations are thought to 

advertise breeding condition, signal 

competing males of a claim on a female, 

or proclaim a territory (Ray et al. 1969, 

Cleator et al. 1989, Van Parijs 2003, Van 

Parijs and Clark 2006, Risch et al. 2007). 

The studies we reviewed and 

considered in re-evaluating the 

proposed acoustic conditions essential 

feature, many of which are cited above 

or in the proposed rule, document the 

vocal activity of bearded seals during 

the breeding season, including bearded 

seal call characteristics and spatial and 

temporal patterns of vocalizations. 

Results of recent research that became 

available after the proposed rule was 

developed also provide information on 

seasonal variation in bearded seal vocal 

activity during the breeding season in a 

variety of habitats and differing ice 

conditions (Boye et al. 2020, Heimrich 

et al. 2021, Llobet et al. 2021), 

underwater hearing capabilities in 

bearded seals, and auditory effects of 

impulsive noise exposure in bearded 

seals (Sills et al. 2020a, Sills et al. 

2020b). In addition, a recent study by 

Fournet et al. (2021) reported results 

suggesting that male bearded seals may 

have a limited capability to compensate 

for elevated ambient noise by increasing 

the level of their calls, in that vocalizing 

bearded seals increased their call levels 

until ambient noise reached an 

observable threshold. 

We anticipate that the findings of 

these studies will enhance our ability to 

consider the potential effects of in-water 

sound levels on bearded seal detection 

of acoustic communication in 

consultations with Federal action 

agencies. However, after carefully 

reviewing and considering the 

comments received and the best 

scientific data available, we were unable 

to sufficiently characterize acoustic 

conditions as an essential feature so as 

to provide a reasonable basis upon 

which to identify when and where the 

essential feature occurs. Based on public 

comments received, including from 

other Federal agencies, we recognize 

that without better understanding of the 

acoustic conditions needed by Beringia 

DPS bearded seals to communicate for 

breeding purposes it would be difficult 

to determine what measures might be 

needed to avoid or minimize impacts to 

these acoustic conditions. 

In our proposed rule, we concluded 

that because the best information 

available indicates that bearded seals 

are widely distributed, and there is 

overlap in the annual timing of the 

bearded seal breeding season with 

bearded seal whelping, nursing, and 

molting, the specific area identified for 

the sea ice essential features also defines 

the specific area associated with the 

acoustic conditions essential feature. 

However, we acknowledged the limited 

nature of the data available to describe 

this proposed essential feature, and as 

noted above, we indicated that we 

would re-evaluate the proposed 

essential feature in developing this final 

rule. In order to protect an essential 

feature, the feature needs to be 

reasonably specific and identifiable. We 

recognize that, while the available 

scientific information for the Beringia 

DPS is evolving, we still need additional 

relevant data in order to adequately 

define the acoustic conditions that 

allow for effective communication by 

bearded seals for breeding purposes and 

thereby provide a reasonable basis upon 

which to identify when and where the 

essential feature occurs. As public 

commenters pointed out, without this 

level of specificity it would be difficult 

to assess possible impacts to an acoustic 

conditions essential feature during 

section 7 consultations or for Federal 

action agencies to design projects to 

avoid or minimize impacts to the 

proposed essential feature. We 

considered the possible impact on 

conservation of the Beringia DPS of not 

identifying an acoustic-related essential 

feature of critical habitat, and we 

determined that we can consider and 

address the effects of anthropogenic 

noise on bearded seals to the extent 

possible in consultations under section 

7 of the ESA, although we remain 

constrained by the limited scientific 

information available. 

Based on our re-evaluation of the best 

scientific data available and public 

comments, we have not included an 

acoustic conditions essential feature in 

this final rule. We will, however, 

continue to consider results of future 

studies and if additional information 

becomes available that would enable us 

to describe an acoustic-related essential 

feature appropriately, we may consider 

revising the critical habitat designation 

accordingly. 

(2) Refined the primary prey resources 

essential feature. In the proposed rule, 

we identified primary prey resources to 

support bearded seals in waters 200 m 

or less in depth as benthic organisms, 

including epifaunal and infaunal 

invertebrates, and demersal and 

schooling pelagic fishes. In response to 

peer reviewer and public comments that 

raised questions related to the proposed 

designation of critical habitat for this 

proposed essential feature, we reevaluated the best scientific data 

available, including a recent analysis 

identified by a peer reviewer 

(Quakenbush 2020a), to determine if 

revision of the proposed definition of 

this feature may be appropriate. 

As we stated in the proposed rule, the 

broad number of prey species consumed 

by bearded seals makes specification of 

particular essential prey species 

impracticable. However, after reevaluating the best scientific data 

available on the diets of bearded seals 

in Alaska, we recognized that the high 


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prevalence of benthic invertebrates and 

demersal fishes reported reflects the 

seals’ reliance on seafloor prey 

communities in particular to meet their 

annual energy budgets. We therefore 

concluded that the primary prey 

resources to support bearded seals are 

specifically benthic organisms, 

including epifaunal and infaunal 

invertebrates, and demersal fishes. 

Accordingly, we have refined the 

regulatory definition of this essential 

feature in this final rule. The refined 

description of the essential feature is as 

follows: Primary prey resources to 

support bearded seals: Waters 200 m or 

less in depth containing benthic 

organisms, including epifaunal and 

infaunal invertebrates, and demersal 

fishes. 

(3) Revised shoreward boundary of 

critical habitat. In the proposed rule, we 

identified one specific area in the 

Bering, Chukchi, and Beaufort seas 

containing the 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 on occurrence of the 

proposed primary prey resources 

essential feature. We expressed in the 

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 

regarding the proposed boundaries of 

the critical habitat designation with 

respect to the primary prey resources 

essential feature (as well as to peer 

reviewer and public comments related 

to bearded seal primary prey resources 

and their use of habitat for foraging), we 

re-evaluated the best scientific data 

available and the approach we had used 

to identify the proposed boundaries to 

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 

bearded seal primary prey species 

indicate that these prey resources are 

widely distributed across the geographic 

area occupied by these seals. 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. We also 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. The best 

information available indicates that 

bearded seal movements and their use 

of habitat for foraging are influenced by 

a variety of factors and the seals’ spatial 

patterns of habitat use and locations of 

intensive use can vary substantially 

among individuals. Most importantly, 

the movements and habitat use of 

bearded seals are strongly influenced by 

the seasonality of ice cover and they 

forage throughout the year. 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 the Beringia DPS of 

bearded seals. Because, as noted above, 

the proposed shoreward boundary of 

critical habitat was based on occurrence 

of the primary prey resources essential 

feature, we re-evaluated the best 

available information to determine the 

appropriate shoreward boundary of 

critical habitat based on the sea ice 

essential features. 

Sea ice habitat identified as essential 

for bearded seal whelping, nursing, and 

molting is found in waters 200 m or less 

in depth containing pack ice, i.e., sea ice 

other than fast ice, of suitable 

concentrations. We therefore considered 

available information regarding the 

spatial extent of landfast ice and its 

seasonal cycle in the Beaufort, Chukchi, 

and Bering seas (Mahoney et al. 2007, 

Mahoney et al. 2012, Mahoney et al. 

2014, Jensen et al. 2020) to inform our 

delineation of the shoreward boundary 

of critical habitat. Here we refer to the 

north northeastern Chukchi Sea (from 

Wainwright to Point Barrow) and 

Beaufort Sea as the Beaufort region, the 

Chukchi Sea extending south of 

Wainwright to the tip of the northern 

Seward Peninsula as the Chukchi 

region, and the Bering Sea from there 

south to Kuskokwim Bay as the Bering 

region. This information indicates that 

relationships between landfast ice and 

bathymetry in the Beaufort, Chukchi, 

and Bering regions differ regionally and 

locally. Significant inter-annual 

differences in the maximum extent of 

landfast ice were also documented, in 

particular in the Beaufort region. In 

addition, there is evidence of a decrease 

in the extent of landfast ice and trends 

in earlier breakup of this ice in the 

Chukchi region, and information from 

IK similarly indicates such trends in the 

Bering region (Oceana and Kawerak 

2014, Huntington et al. 2017e). It is 

therefore impracticable to delineate a 

single isobath as the shoreward 

boundary for the entire specific area 

containing the sea ice essential features 

that accounts precisely for where 

landfast may occur in a given year 

during the period of whelping, nursing, 

and molting. However, we concluded 

that defining the nearshore boundary by 

a depth contour at a coarse level for 

each region is appropriate given that 

landfast ice forms in areas of shallow 

bathymetry and such ice is not 

identified as essential to the 

conservation of the Beringia DPS. 

Because the best scientific data 

available indicate that in the Beaufort 

Sea, the 20-m isobath provides a 

reasonable approximation of the average 

stable extent of landfast ice, and 

landfast ice extent has not changed 

significantly in the past several decades 

(Mahoney et al. 2012, Mahoney et al. 

2014), we selected the 20-m isobath 

(relative to MLLW) as the shoreward 

boundary in the Beaufort region. The 

available information indicates that in 

the Chukchi and Bering regions, 

landfast ice occupies shallower water 

overall, and water depths at the landfast 

ice edge are more variable and locally 

specific. In addition, as noted above, 

there is evidence of decreases in the 

extent of landfast ice and trends in 

earlier breakup of this ice in the 

Chukchi region, as well as of changes in 

landfast ice conditions in the Bering 

region in recent years. Therefore, in 

determining the shoreward boundary in 

the Chukchi and Bering regions, we 

considered the available information on 

landfast ice in these regions and 

examined existing information on the 

spring distribution of bearded seals from 

aerial surveys of the Bering Sea (in 2012 

and 2013) and parts of the Chukchi Sea 

(in 2016) (NMFS Marine Mammal 

Laboratory, unpublished data). After 

considering the available data, we 

selected the 10-m isobath (relative to 

MLLW) as the shoreward boundary in 

the Chukchi Sea, and the 5-m isobath 

(relative to MLLW) as the shoreward 

boundary in the Bering Sea. We note 

that we adjusted the shoreward 

boundary to form a continuous line 

crossing the entrance to Port Clarence 

Bay because available information does 

not indicate this area contains the sea 

ice essential features. For the purpose of 

delineating the shoreward boundary, we 

defined the division between the 

Beaufort and Chukchi regions as the line 


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of latitude south of Wainwright at 70°36′ 

N, and the division between the 

Chukchi and Bering regions as the line 

of latitude south of Cape Prince of 

Wales (tip of the Seward Peninsula) at 

65°35′ N. 

(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. 

We also revised the analysis of the 

incremental administrative costs of 

section 7 consultations associated with 

the critical habitat designation based on 

the revised delineation of the shoreward 

boundary of the designation explained 

above. In addition, we updated the 

timeframe, wage schedule, and dollar 

year of the analysis to reflect the 

implementation schedule of the final 

rule. 

(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 proposed rule, 

and our internal review of the proposed 

rule. 

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) that is included as part 

of the Final Impact Analysis Report for 

this rule. The FRFA estimates the 

potential number of small businesses 

that may be directly regulated by 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 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 Beringia DPS of 

bearded seals. 

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 the Beringia DPS of bearded 

seals. Thus, as discussed above, we 

expect that none of the activities we 

identified would trigger a consultation 

solely on the basis of this critical habitat 

designation; in addition, we 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 

bearded seal critical habitat in future 

section 7 consultations that would occur 

regardless, based on the listing of the 

Beringia DPS of bearded 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 Beringia DPS 

critical habitat over the next 10 years are 

expected to be borne principally by 

large oil and gas operations. The 

estimated range of annual third party 

costs over this 10 year period is $22,900 

to $42,100 (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 Beringia DPS 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 


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habitat designation for the Beringia DPS. 

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

must consider the economic impacts, 

impacts to national security, and other 

relevant impacts of designating any 

particular area as critical habitat. NMFS 

has the discretion to exclude any area 

from critical habitat if the benefits of 

exclusion (i.e., the impacts that would 

be avoided if an area were excluded 

from the designation) outweigh the 

benefits of designation (i.e., the 

conservation benefits to the Beringia 

DPS if an area were designated), as long 

as exclusion of the area will not result 

in extinction of the species. However, 

based on the best information currently 

available, we concluded that this rule 

would result in minimal impacts to 

small entities and the economic impacts 

associated with the critical habitat 

designation would be modest. 

Therefore, we are not excluding any 

areas from the critical habitat 

designation pursuant to section 4(b)(2) 

of the ESA. Instead, we selected the 

alternative of designating as critical 

habitat the entire specific area that 

contains at least one identified essential 

feature because it would result in a 

critical habitat designation that provides 

for the conservation of the species and 

is consistent with the ESA and joint 

NMFS and USFWS regulations 

concerning critical habitat at 50 CFR 

part 424. 

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 predissemination review and have been 

determined to be in compliance with 

applicable information quality 

guidelines implementing the 

Information Quality Act (Section 515 of 

Pub. L. 106–554). 

On December 16, 2004, the OMB 

issued its Final Information Quality 

Bulletin for Peer Review (Bulletin) 

establishing minimum peer review 

standards, a transparent process for 

public disclosure of peer review 

planning, and opportunities for public 

participation. The Bulletin was 

published in the Federal Register on 

January 14, 2005 (70 FR 2664). The 

primary purpose of the Bulletin, which 

was implemented under the Information 

Quality Act, is to improve the quality 

and credibility of scientific information 

disseminated by the Federal government 

by requiring peer review of ‘‘influential 

scientific information’’ and ‘‘highly 

influential scientific information’’ prior 

to public dissemination. Influential 

scientific information is defined as 

information the agency reasonably can 

determine will have or does have a clear 

and substantial impact on important 

public policies or private sector 

decisions. The Bulletin provides 

agencies broad discretion in 

determining the appropriate process and 

level of peer review. Stricter standards 

were established for the peer review of 

‘‘highly influential scientific 

assessments,’’ defined as information 

whose dissemination could have a 

potential impact of more than $500 

million in any one year on either the 

public or private sector or that the 

information is novel, controversial, or 

precedent-setting, or has significant 

interagency interest. 

The evaluation of critical habitat 

presented in this 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 from four reviewers 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 proposed rule; and from 

three reviewers of the information 

considered in the Draft Impact Analysis 

Report for the proposed rule. The peer 

reviewer comments are addressed in 

this rule and in the Final Impact 

Analysis Report, and were compiled 

into two reports that are available at: 

www.noaa.gov/organization/ 

information-technology/peer-reviewplans. 

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 5-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 

bearded seals through the Ice Seal 

Committee, a co-management 

organization under section 119 of the 

MMPA. We discussed the designation of 

critical habitat for the Beringia DPS of 

bearded 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 

proposed designation of critical habitat 

for the Beringia DPS 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 

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 


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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 

$563,000 over the next 10 years 

(discounted at 7 percent) for an 

annualized cost of $74,900. Overall, 

economic impacts are expected to be 

small and Federal agencies are 

anticipated to bear at least 44 percent of 

these costs. While there are expected 

beneficial economic impacts of 

designating critical habitat for the 

Beringia DPS, there are insufficient data 

available to monetize those impacts (see 

Benefits of Designation section). 

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 any significant 

energy action. Under E.O. 13211, a 

significant energy action means any 

action by an agency that is expected to 

lead to the promulgation of a final rule 

or regulation that is a significant 

regulatory action under E.O. 12866 and 

is likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. We have considered the 

potential impacts of this 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 

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 the Beringia DPS of 

bearded 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 

■ 1. The authority citation for part 223 

continues to read as follows: 

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

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

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

§ 223.206(d)(9). 

■ 2. In § 223.102, in the table in 

paragraph (e), under Marine Mammals 

revise the entry for ‘‘Seal, bearded 

(Beringia DPS)’’ to read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

(e) * * * 


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Species 1

Citation (s) for listing 

determination(s) 

Critical 

habitat 

ESA 

rules Common name Scientific name Description of listed entity 

Marine Mammals 

*******

Seal, bearded (Beringia 

DPS).

Erignathus barbatus 

nauticus.

Bearded seals originating from 

breeding areas in the Arctic 

Ocean and adjacent seas in the 

Pacific Ocean between 145° E 

Long. (Novosibirskiye) and 130° 

W Long., and east of 157° E 

Long. or east of the Kamchatka 

Peninsula.

77 FR 76740, Dec. 28, 

2012.

226.229 NA 

* * * * * * * 

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

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

* * * * * 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 3. The authority citation for part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 4. Add § 226.229 to read as follows: 

§ 226.229 Critical Habitat for the Beringia 

Distinct Population Segment of the Bearded 

Seal Subspecies Erignathus barbatus 

nauticus. 

Critical habitat is designated for the 

Beringia distinct population segment of 

the bearded seal subspecies Erignathus 

barbatus nauticus (Beringia DPS) as 

described in this section. The map and 

textual descriptions in this section are 

the definitive sources for determining 

the critical habitat boundaries. 

(a) Critical habitat boundaries. 

Critical habitat for the Beringia DPS 

includes marine waters within one 

specific area in the Bering, Chukchi, and 

Beaufort seas, extending from the 

shoreward boundary to an offshore limit 

with a maximum water depth of 200 m 

from the ocean surface within the U.S. 

Exclusive Economic Zone (EEZ). The 

shoreward boundary follows the 20-m 

isobath (relative to MLLW) westward 

from the eastern limit of the U.S. EEZ 

in the Beaufort Sea and continuing into 

the northeastern Chukchi Sea to its 

intersection with latitude 70°36′ N 

south of Wainwright; then follows the 

10-m isobath (relative to MLLW) to its 

intersection with latitude 65°35′ N near 

Cape Prince of Wales; then follows the 

5-m isobath (relative to MLLW) to its 

intersection with longitude 164°46′ W 

near the mouth of the Kolovinerak River 

in the Bering Sea, except at Port 

Clarence Bay where the shoreward 

boundary is defined as a continuous 

line across the entrance. The eastern 

boundary in the Beaufort Sea follows 

the eastern limit of the U.S. EEZ 

beginning at the nearshore boundary 

defined by the 20-m isobath (relative to 

MLLW), extends offshore to the 200-m 

isobath, and then follows this isobath 

generally westward and northwestward 

to its intersection with the seaward limit 

of the U.S EEZ in the Chukchi Sea. The 

boundary then follows the limit of the 

U.S. EEZ southwestward and south to 

the intersection of the southern 

boundary of the critical habitat in the 

Bering Sea at 60°32′26′′ N/179°9′53′′ W. 

The southern boundary extends 

southeastward from this intersection 

point to 57°58′ N/170°25′ W, then 

eastward to 58°29′ N/164°46′ W, then 

follows longitude 164°46′ W to its 

intersection with the nearshore 

boundary defined by the 5-m isobath 

(relative to MLLW) near the mouth of 

the Kolovinerak River. This includes 

waters off the coasts of the Bethel, 

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 

Beringia DPS are: 

(1) Sea ice habitat suitable for 

whelping and nursing, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 25 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

(2) Sea ice habitat suitable as a 

platform for molting, which is defined 

as areas with waters 200 m or less in 

depth containing pack ice of at least 15 

percent concentration and providing 

bearded seals access to those waters 

from the ice. 

(3) Primary prey resources to support 

bearded seals: Waters 200 m or less in 

depth containing benthic organisms, 

including epifaunal and infaunal 

invertebrates, and demersal fishes. 

(c) Map of Beringia DPS critical 

habitat follows. 

BILLING CODE 3510–22–P 


lotter on DSK11XQN23PROD with RULES2
19230 Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Rules and Regulations 

[FR Doc. 2022–06173 Filed 3–31–22; 8:45 am] 

BILLING CODE 3510–22–C 


lotter on DSK11XQN23PROD with RULES2ER01AP22.000</GPH>

Figure 1 to paragraph (c) 

Critical Habitat for the Beringia DPS of the Bearded Seal 

N 

A 

(222] Critical Habitat 

I I I ~ Limit of U.S. Exclusive Economic Zone 

0 125 250 500 Kilometers