[Federal Register Volume 87, Number 63 (Friday, April 1, 2022)]
[Rules and Regulations]
[Pages 19180-19230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-06173]



[[Page 19179]]

Vol. 87

Friday,

No. 63

April 1, 2022

Part II





Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Parts 223 and 226





Endangered and Threatened Species; Designation of Critical Habitat for 
the Beringia Distinct Population Segment of the Bearded Seal; Final 
Rule

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 220318-0073]
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.

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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#conservation-management.

FOR FURTHER INFORMATION CONTACT: Tammy Olson, NMFS Alaska Region, (907) 
271-5006; Jon Kurland, NMFS Alaska Region, (907) 586-7638; or Heather 
Austin, NMFS Office of Protected Resources, (301) 427-8422.

SUPPLEMENTARY INFORMATION:

Background

    On December 28, 2012, we published a final rule to list the 
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

[[Page 19181]]

Secretary may not exclude areas if such exclusion will result in the 
extinction of the species (16 U.S.C. 1533(b)(2)).
    Critical habitat designations must be based on the best scientific 
data available, rather than the best scientific data possible. Bldg. 
Indus. Ass'n. of Superior Cal. v. Norton, 247 F.3d 1241, 1246-47 (D.C. 
Cir. 2001). See also Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 544, 
555 (9th Cir. 2016) (The ESA ``requires use of the best available 
technology, not perfection.''). Provided that the best available 
information is sufficient to enable us to make a determination as 
required under the ESA, we must rely on it even though there is some 
degree of imperfection or uncertainty. See Alaska v. Lubchenco, 825 F. 
Supp. 2d 209, 223 (D.D.C. 2011) (``[E]ven if plaintiffs can poke some 
holes in the agency's models, that does not necessarily preclude a 
conclusion that these models are the best available science. Some 
degree of predictive error is inherent in the nature of mathematical 
modeling.''); Oceana, Inc. v. Ross, 321 F. Supp. 3d 128, 142 (D.D.C. 
2018) (``[E]ven where data may be inconclusive, an agency must rely on 
the best available scientific information.''). There is no obligation 
to conduct independent studies and tests to acquire the best possible 
data. Ross, 321 F. Supp. 2d at 142 (citations omitted). See also San 
Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 995 (9th Cir. 
2014) (holding that the best available science standard ``does not 
require an agency to conduct new tests or make decisions on data that 
does not yet exist.''); Am. Wildlands v. Kempthorne, 530 F.3d 991, 999 
(D.C. Cir. 2008); Southwest Ctr. for Biological Diversity v. Babbitt, 
215 F.3d 58, 60 (D.C. Cir. 2000) (``The `best available data' 
requirement makes it clear that the Secretary has no obligation to 
conduct independent studies.'')
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to destroy or adversely modify that habitat 
(16 U.S.C. 1536(a)(2)). This requirement is additional to the section 
7(a)(2) requirement that Federal agencies ensure that their actions are 
not likely to jeopardize the continued existence of ESA-listed species 
(sometimes referred to as the ``jeopardy'' standard). Specifying the 
geographic location of critical habitat also facilitates implementation 
of section 7(a)(1) of the ESA by identifying areas where Federal 
agencies can focus their conservation programs and use their 
authorities to further the purposes of the ESA (16 U.S.C. 1536(a)(1)). 
Critical habitat requirements do not apply to citizens engaged in 
actions on private land that do not involve a Federal agency.

Description and Natural History

    The 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 
Utqiagvik (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 Utqiagvik (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 Utqiagvik 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, Frouin-Mouy et al. 2016, 
Berchok et al. 2019, Vate Brattstr[ouml]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[deg] 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 Utqia[gdot]vik in the fall of 2019 remained in nearshore areas 
southeast of Utqia[gdot]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[deg] 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 mid-March to 
early May (Cameron et al. 2010). A peak in births in the Bering Strait 
and central Chukchi Sea is estimated to occur in late April (Johnson et 
al. 1966, Tikhomirov 1966, Heptner et

[[Page 19183]]

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 Brattstr[ouml]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 (H[eacute]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

[[Page 19184]]

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 peer-reviewed 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[deg] E longitude and 130[deg] W 
longitude, except west of 157[deg] 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 life-history needs of the species. The regulations 
provide additional details and examples of such features.
    Based on the best scientific information available regarding the 
natural history of bearded seals and the habitat features that are 
essential to support the species' life-history needs, we have 
identified the following physical 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

[[Page 19185]]

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. ice-covered), 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 re-
evaluate 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

[[Page 19186]]

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 re-evaluated 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 
satellite-derived 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

[[Page 19187]]

information is limited on the spatial distribution and whelping 
locations of bearded seals in the Bering Sea during spring, and the 
temporal and spatial distribution of sea ice cover, which influences 
bearded seal distributions, is variable between years.
    We therefore turned to Sea Ice Index data maintained by the 
National Snow and Ice Data Center (NSIDC) for information on the 
estimated median position of the ice edge in the Bering Sea during 
April (Fetterer et al. 2017, Version 3.0, accessed November 2019), 
which is the peak month for bearded seal whelping activity (peak 
molting for adults occurs later in the spring). This estimated median 
ice edge is derived by the NSIDC from a time series of satellite 
records for the 30-year reference period from 1981 to 2010. To further 
inform our evaluation, we also examined the position of the median ice 
edge in April for the more recent 30-year period from 1990 to 2019, 
which was estimated using methods and data types similar to those used 
for the Sea Ice Index. We note that the two most recent years included 
in this 30-year period had record low ice extent in the Bering Sea 
(Stabeno and Bell 2019).
    The April median ice edge for the 1981 to 2010 reference period 
from the Sea Ice Index is located approximately 170 kilometers (km) 
southwest of St. Matthew Island and 175 km south of Nunivak Island, and 
it extends eastward across lower Kuskokwim Bay to near Cape Newenham, a 
headland between Kuskokwim Bay and Bristol Bay. Because bearded seals 
use nearly the entire extent of pack ice over the Bering Sea shelf in 
spring, depending upon ice conditions in a given year, some bearded 
seals may use sea ice for whelping south of this median ice edge. But 
we concluded that the variability in the annual extent and timing of 
sea ice in this southernmost portion of the bearded seal's range in the 
Bering Sea (e.g., Boveng et al. 2009, Stabeno et al. 2012, Frey et al. 
2015) renders these waters unlikely to contain the sea ice essential 
features on a consistent basis in more than limited areas. The position 
of the April median ice edge for the more recent 1990 to 2019 period is 
generally similar to that of the Sea Ice Index, except that the ice 
edge has a wide inverted U-shape in Kuskokwim Bay, and as a result, 
there is roughly half as much area with sea ice there. Given the 
reduction in sea ice in Kuskokwim Bay between the reference period used 
for the Sea Ice Index and the more recent period, we also concluded 
that these waters appear unlikely to contain the sea ice essential 
features on a consistent basis in more than limited areas.
    As such, we delineated the southern boundary to reflect the 
estimated position of the April median ice edge west of Kuskokwim Bay. 
To simplify the southern boundary for purposes of delineation on maps, 
we modified the ice edge contour line for the 1990 to 2019 period as 
follows: (1) Intermediate points along the contour line between its 
intersection point with the seaward limit of the U.S. EEZ 
(60[deg]32'26'' N/179[deg]9'53'' W) and the point where the contour 
line turns eastward (57[deg]58' N/170[deg]25' W) were removed to form 
the segment of the southern boundary that extends from the seaward 
limit of the U.S. EEZ southeastward approximately 575 km; (2) 
intermediate points along the contour line between the point where the 
contour line turns eastward and the approximate point on the west side 
of Kuskokwim Bay where the contour line turns northeastward (58[deg]29' 
N/164[deg]46' W) were removed to form a second segment of the southern 
boundary that extends eastward approximately 335 km; and (3) these two 
line segments were connected to the mainland by an approximately 200-km 
line segment that follows 164[deg]46' W longitude to near the west side 
of the mouth of the Kolovinerak River, about 50 km east of Nunivak 
Island. This editing produced a simplified southern boundary that 
retains the general shape 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

[[Page 19188]]

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[deg]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[deg]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

[[Page 19189]]

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. Climate-change-
related threats to the Beringia DPS's habitat are discussed in detail 
in the bearded seal status review report (Cameron et al. 2010), as well 
as in our proposed and final rules to list the Beringia DPS of 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

[[Page 19190]]

bearded seals in association with changes in ocean conditions, such as 
warming and acidification (caused primarily by uptake of atmospheric 
CO<INF>2</INF>) (as reviewed by Cameron et al. 2010, also, e.g., 
K[eogon]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 ice-covered waters are the most 
challenging to deal with due to, among other factors, limitations on 
the effectiveness of current containment and recovery technologies when 
sea ice is present (Wilkinson et al. 2017). The extreme depth and the 
pressure that oil was under during the 2010 blowout at the Deepwater 
Horizon well in the Gulf of Mexico may not exist in the shallow 
continental shelf waters of the Beaufort and Chukchi seas. 
Nevertheless, the difficulties experienced in stopping and containing 
the Deepwater Horizon blowout, where environmental conditions, 
available infrastructure, and response preparedness were comparatively 
good, point toward even greater challenges in containing and cleaning a 
large spill in a much more environmentally severe and geographically 
remote Arctic location.
    Although planning, management, and use of best practices can help 
reduce risks and impacts, the history of oil and gas activities 
indicates that accidents cannot be eliminated (AMAP 2007). Data on 
large spills (e.g., operational discharges, spills from pipelines, 
blowouts) in Arctic waters are limited because oil exploration and 
production there has been limited, 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

[[Page 19191]]

of unique vessels operating in U.S. waters north of 60[deg] N (i.e., 
northern Bering Sea and northward) may increase by 136 to 346 percent 
(U.S. Committee on the Marine Transportation System 2019).
    The fact that nearly all vessel traffic in the Arctic, with the 
exception of icebreakers, purposefully avoids areas of ice, and 
primarily occurs during the ice-free or low-ice seasons, helps to 
mitigate the risks of shipping to the essential habitat features 
identified for bearded seals of the Beringia DPS. However, icebreakers 
pose greater risks to these features since they are capable of 
operating year-round in all but the heaviest ice conditions and are 
often used to escort other types of vessels (e.g., tankers and bulk 
carriers) through ice-covered areas. Furthermore, new classes of ships 
are being designed that serve the dual roles of both tanker/carrier and 
icebreaker (Arctic Council 2009). Therefore, if icebreaking activities 
increase in the Arctic in the future, as expected, the likelihood of 
negative impacts (e.g., habitat alteration and risk of oil spills) 
occurring in ice-covered areas where bearded seals reside will likely 
also increase. We are not aware of any data currently available on the 
effects of icebreaking on the habitat of bearded seals during the 
reproductive and molting periods. Although impacts of icebreaking are 
likely to vary between species depending on a variety of factors, 
Wilson et al. (2017) demonstrated the potential for impacts of 
icebreaking, which for Caspian seal (Pusa caspica) mothers and pups and 
their sea-ice-breeding habitat included displacement, breakup of 
whelping and nursing habitat, and vessel collisions with mothers or 
pups. The authors noted that while pre-existing shipping channels were 
used by seals as artificial leads, which expanded access to whelping 
habitat, seals that whelp on the edge of such leads are vulnerable to 
vessel collision and repeated disturbance.
    In addition to the potential effects of icebreaking on the 
essential features, the maritime shipping industry transports various 
types of petroleum products, both as fuel and cargo. In particular, if 
increased shipping involves the tanker transport of crude oil or oil 
products, there would be an increased risk of spills (Arctic Climate 
Impact Assessment 2005, U.S. Arctic Research Commission 2012). Similar 
to oil and gas activities, the most significant threat posed by 
shipping activities is considered to be the accidental or illegal 
discharge of oil or other toxic substances carried by ships (Arctic 
Council 2009).
    Vessel discharges associated with normal operations, including 
sewage, grey water, and oily wastes are expected to increase as a 
result of increasing marine shipping and transportation in Arctic 
waters (Arctic Council 2009, Parks et al. 2019), which could affect the 
primary prey 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

[[Page 19192]]

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

[[Page 19193]]

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, non-consumptive, or passive), educational, cultural, or 
sociological, or they may be expressed through enhanced or sustained 
ecological functioning of the species' habitat, which itself yields 
ancillary welfare benefits (e.g., improved quality of life) to the 
region's human population. For example, because the critical habitat 
designation is expected to result in enhanced conservation of the 
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

[[Page 19195]]

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 spatial-temporal considerations when evaluating the potential 
impacts of a proposed action during the ESA section 7 consultation 
process. For example, if an action with short-term effects is proposed 
during a time of year that sea ice is not present, we may advise that 
consequences to critical habitat are unlikely. If we conclude in a 
biological opinion pursuant to section 7(a)(2) of the ESA that the 
agency action would likely result in the destruction or adverse 
modification of critical habitat, we would recommend one or more 
reasonable and prudent alternatives to the action that avoid that 
result.
    Reasonable and prudent alternatives are defined in 50 CFR 402.02 as 
alternative actions identified during formal consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that would avoid the destruction or 
adverse modification of critical habitat. NMFS may also provide with 
the biological opinion a statement containing discretionary 
conservation recommendations. Conservation recommendations are advisory 
and are not intended to carry any binding legal force.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where (among other reasons): (1) Critical habitat is subsequently 
designated; or (2) new information or changes to the action may result 
in effects to critical habitat not previously considered. Consequently, 
some Federal agencies may request reinitiation of consultation or 
conference with us on actions for which consultation has been completed 
if those actions may affect designated critical habitat for the 
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

[[Page 19196]]

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#conservation-management, 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 non-substantive but clarifying changes in wording. 
We have addressed these editorial comments in the final rule and the 
Final Impact Analysis Report, as appropriate. Because these editorial 
comments did not result in substantive changes to the final rule, we 
have not detailed them here. The peer reviewer comments are available 
online (see Information Quality Act and Peer Review section). A few 
peer reviewers volunteered comments related to aspects of the proposed 
designation that were outside the scope of the requested reviews. We 
address those comments below in our responses to public comments.
    We have reviewed and fully considered all comments and significant 
new information received from peer reviewers and the public. Summaries 
of the substantive comments received and our responses are provided 
below. As some peer reviewer and public comments were similar, we have, 
in certain cases, combined the comments and 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 
Utqia[gdot]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

[[Page 19197]]

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 Utqia[gdot]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

[[Page 19198]]

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

[[Page 19199]]

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 tidally-
influenced 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 well-documented 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 ice-free 
months. Kawerak also noted that these estuaries have aquatic plants 
that young seals use as cover when stalking the variety of small-bodied 
fishes and invertebrates that reside 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 re-
evaluating the best scientific data available, as described below in 
the

[[Page 19200]]

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 
re-evaluated 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 long-term 
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

[[Page 19201]]

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 court-approved 
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 [deg]C above pre-industrial levels, 
and consequently minimizing sea ice loss.
    Response: We have incorporated a reference to the rate of climate 
change in the Arctic into the Final Impact Analysis Report, as 
suggested by the peer reviewer. Although the report contains a limited 
discussion of climate change and sea ice loss in the Arctic, we discuss 
this topic in more detail in the Special Management Considerations or 
Protection section of this final rule. We agree with the peer 
reviewer's comment

[[Page 19202]]

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 co-extensive with those afforded through the ESA 
listing of the species (i.e., they are not attributable solely to 
critical habitat designation). Data are not available to determine the 
extent to which such benefits would be attributable specifically to 
critical habitat designation.
    Comment 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

[[Page 19203]]

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 re-evaluate 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

[[Page 19204]]

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 wide-ranging 
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 project-specific 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

[[Page 19205]]

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[deg] E longitude and 
130[deg] W longitude, except west of 157[deg] 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

[[Page 19206]]

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

[[Page 19207]]

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 Utqia[gdot]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

[[Page 19208]]

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 co-occurrence 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

[[Page 19209]]

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 ice-covered 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

[[Page 19210]]

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,

[[Page 19211]]

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

[[Page 19212]]

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).

[[Page 19213]]

    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

[[Page 19214]]

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 habitat-related effects to the seals, 
such as effects to prey, even in the absence of a critical habitat 
designation. While Federal actions that may affect the essential 
features of the critical habitat will require an analysis to ensure 
that these actions are not likely to result in the destruction or 
adverse modification of the critical habitat, which will impose some 
minor incremental costs to consultations, we do not expect that this 
will require substantial additional time or resources, especially for 
new consultations (see also our response to Comment 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 well-established mandates of Federal law.

[[Page 19215]]

    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

[[Page 19216]]

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

[[Page 19217]]

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,

[[Page 19218]]

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

[[Page 19219]]

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 habitat-related effects to the seals, even in the absence of a 
critical habitat designation. While Federal actions that may affect the 
essential features of 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

[[Page 19220]]

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 infrastructure-related 
activities are occurring in consideration of the harmful effects of the 
designation on Alaska Native communities. Additionally, ADF&G requested 
that a distance of 20 miles around communities and the Beaufort Sea 
coast be excluded from designation to avoid unnecessary 
disproportionate regulatory burdens to those areas that are not 
balanced by the limited conservation benefits provided to 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

[[Page 19221]]

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 non-exhaustive list of 
circumstances in which we may, but are not required to, find that it 
would not be prudent designate critical habitat. In 2019, several 
revisions to this regulatory provision were finalized, including the 
addition of the following circumstance, cited by commenters, in Sec.  
424.12(a)(1)(ii): The present or threatened destruction, modification, 
or curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the ESA (84 FR 45020, August 27, 
2019). Here, the 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

[[Page 19222]]

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

[[Page 19223]]

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, co-management partners, and local communities via existing 
research partnerships to foster routine inclusion of IK along with 
conventional science in assessing and predicting habitat transformation 
in the Arctic. In addition, other commenters stated that addressing 
loss of sea ice habitat would require international collaboration.
    Response: We agree that addressing the effects of climate change on 
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

[[Page 19224]]

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 re-evaluated 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 re-evaluating the best 
scientific data available on the diets of bearded seals in Alaska, we 
recognized that the high

[[Page 19225]]

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

[[Page 19226]]

of latitude south of Wainwright at 70[deg]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[deg]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

[[Page 19227]]

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 pre-
dissemination review and have been determined to be in compliance with 
applicable information quality guidelines implementing the Information 
Quality Act (Section 515 of Pub. L. 106-554).
    On December 16, 2004, the OMB issued its Final Information Quality 
Bulletin for Peer Review (Bulletin) establishing minimum peer review 
standards, a transparent process for public disclosure of peer review 
planning, and opportunities for public participation. The Bulletin was 
published in the Federal Register on January 14, 2005 (70 FR 2664). The 
primary purpose of the Bulletin, which was implemented under the 
Information Quality Act, is to improve the quality and credibility of 
scientific information disseminated by the Federal government by 
requiring peer review of ``influential scientific information'' and 
``highly influential scientific information'' prior to public 
dissemination. Influential scientific information is defined as 
information the agency reasonably can determine will have or does have 
a clear and substantial impact on important public policies or private 
sector decisions. The Bulletin provides agencies broad discretion in 
determining the appropriate process and level of peer review. Stricter 
standards were established for the peer review of ``highly influential 
scientific assessments,'' defined as information whose dissemination 
could have a potential impact of more than $500 million in any one year 
on either the public or private sector or that the information is 
novel, controversial, or precedent-setting, or has significant 
interagency interest.
    The evaluation of critical habitat presented in this final rule and 
the information presented in the supporting Final Impact Analysis 
Report are considered influential scientific information subject to 
peer review. To satisfy our requirements under the OMB Bulletin, we 
obtained independent peer review 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-review-plans.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, E.O.s, 
judicial decisions, and co-management agreements, which differentiate 
tribal governments from the other entities that deal with, or are 
affected by, the Federal Government. This relationship has given rise 
to a special Federal trust responsibility involving the legal 
responsibilities and obligations of the United States toward Indian 
tribes and the application of fiduciary standards of due care with 
respect to Indian lands, tribal trust resources, and the exercise of 
tribal rights. E.O. 13175 on Consultation and Coordination with Indian 
Tribal Governments outlines the responsibilities of the Federal 
Government in matters affecting tribal interests. Section 161 of Public 
Law 108-199 (188 Stat. 452), as amended by section 518 of Public Law 
108-447 (118 Stat. 3267), directs all Federal agencies to consult with 
Alaska Native corporations on the same basis as Indian tribes under 
E.O. 13175.
    As the entire critical habitat area is located seaward of the 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

[[Page 19228]]

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

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

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

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


Sec.  223.102   Enumeration of threatened marine and anadromous 
species.

* * * * *
    (e) * * *

[[Page 19229]]



----------------------------------------------------------------------------------------------------------------
                            Species \1\
--------------------------------------------------------------------  Citation (s) for    Critical
                                                    Description of        listing         habitat     ESA rules
          Common name            Scientific name     listed entity    determination(s)
----------------------------------------------------------------------------------------------------------------
                                                 Marine Mammals
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Seal, bearded (Beringia DPS)..  Erignathus         Bearded seals     77 FR 76740, Dec.      226.229           NA
                                 barbatus           originating       28, 2012.
                                 nauticus.          from breeding
                                                    areas in the
                                                    Arctic Ocean
                                                    and adjacent
                                                    seas in the
                                                    Pacific Ocean
                                                    between
                                                    145[deg] E
                                                    Long.
                                                    (Novosibirskiye
                                                    ) and 130[deg]
                                                    W Long., and
                                                    east of
                                                    157[deg] E
                                                    Long. or east
                                                    of the
                                                    Kamchatka
                                                    Peninsula.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722; February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612; November 20, 1991).

* * * * *

PART 226--DESIGNATED CRITICAL HABITAT

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

    Authority:  16 U.S.C. 1533.

0
4. Add Sec.  226.229 to read as follows:


Sec.  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[deg]36' N south of Wainwright; then follows the 10-m isobath 
(relative to MLLW) to its intersection with latitude 65[deg]35' N near 
Cape Prince of Wales; then follows the 5-m isobath (relative to MLLW) 
to its intersection with longitude 164[deg]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[deg]32'26'' N/
179[deg]9'53'' W. The southern boundary extends southeastward from this 
intersection point to 57[deg]58' N/170[deg]25' W, then eastward to 
58[deg]29' N/164[deg]46' W, then follows longitude 164[deg]46' W to 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

[[Page 19230]]

[GRAPHIC] [TIFF OMITTED] TR01AP22.000

[FR Doc. 2022-06173 Filed 3-31-22; 8:45 am]
BILLING CODE 3510-22-C