19232 Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Rules and Regulations 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 226 

[Docket No. 220318–0072] 

RIN 0648–BC56 

Endangered and Threatened Species; 

Designation of Critical Habitat for the 

Arctic Subspecies of the Ringed Seal 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: We, the National Marine 

Fisheries Service (NMFS), issue this 

final rule to designate critical habitat for 

the Arctic subspecies of the ringed seal 

(Pusa hispida hispida) under the 

Endangered Species Act (ESA). The 

critical habitat designation comprises an 

area of marine habitat in the Bering, 

Chukchi, and Beaufort seas. Based on 

consideration of national security 

impacts, we have excluded an area 

north of the Beaufort Sea shelf from the 

designation. 

DATES: This rule is effective May 2, 

2022. 

ADDRESSES: The final rule, critical 

habitat map, and associated Final 

Impact Analysis Report (i.e., report 

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

Preparatory Assessment/FRFA of 

Critical Habitat Designation for the 

Arctic Ringed Seal’’) can be found on 

the NMFS website at 

www.fisheries.noaa.gov/species/ringedseal#conservation-management. 

FOR FURTHER INFORMATION CONTACT: 

Tammy Olson, NMFS Alaska Region, 

(907) 271–5006; Jon Kurland, NMFS 

Alaska Region, (907) 586–7638; or 

Heather Austin, NMFS Office of 

Protected Resources, (301) 427–8422. 

SUPPLEMENTARY INFORMATION: 

Background 

On December 28, 2012, we published 

a final rule to list the Arctic ringed seal 

as threatened under the ESA (77 FR 

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

requires the Secretary to designate 

critical habitat concurrently with listing 

a species as threatened or endangered 

unless it is not determinable at that 

time, in which case the Secretary may 

extend the deadline for this designation 

by one year. At the time of listing, we 

announced our intention to designate 

critical habitat for the Arctic ringed seal 

in a separate rulemaking, as its critical 

habitat was not then determinable. 

Concurrently, we solicited information 

to assist us in (1) identifying the 

physical or biological features essential 

to the conservation of Arctic ringed 

seals, and (2) assessing the economic 

impacts of designating critical habitat 

for this species. 

On December 3, 2014, we published 

a proposed rule to designate critical 

habitat for the Arctic ringed seal under 

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

error, that document contained 

mistakes, and we therefore published a 

corrected proposed rule on December 9, 

2014 (79 FR 73010). We requested 

public comments on this proposed 

designation through March 9, 2015. In 

response to comments, we extended the 

public comment period through March 

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

We held five public hearings in Alaska 

on the proposed rule (80 FR 1618, 

January 13, 2015; 80 FR 5498, February 

2, 2015). 

On March 17, 2016, the listing of 

Arctic ringed seals as a threatened 

species was vacated by the U.S. District 

Court for the District of Alaska (Alaska 

Oil & Gas Ass’n v. Nat’l Marine 

Fisheries Serv., Case Nos. 4:14–cv–29– 

RRB, 4:15–cv–2–RRB, 4:15–cv–5–RRB, 

2016 WL 1125744 (D. Alaska Mar. 17, 

2016)). This decision was reversed by 

the U.S. Court of Appeals for the Ninth 

Circuit on February 12, 2018 (Alaska Oil 

& Gas Ass’n v. Ross, 722 F. App’x 666 

(9th Cir. 2018)), and the listing was 

reinstated on May 15, 2018. 

On June 13, 2019, the Center for 

Biological Diversity filed a complaint in 

the U.S. District Court for the District of 

Alaska alleging that NMFS had failed to 

timely designate critical habitat for the 

Arctic ringed seal. Under a courtapproved stipulated settlement 

agreement between the parties, NMFS 

published a revised proposed rule to 

designate critical habitat for the Arctic 

ringed seal on January 8, 2021 (86 FR 

1452). Our revised proposed designation 

incorporated additional relevant 

information that became available since 

publication of the 2014 proposed rule, 

including information received during 

the comment period on that proposal. In 

the revised proposed rule, we discussed 

the differences from the 2014 proposal 

and described our revised proposed 

designation of critical habitat for the 

Arctic ringed seal. Specifically, we 

proposed to designate as critical habitat 

for the Arctic ringed seal an area of 

marine habitat in the northern Bering, 

Chukchi, and Beaufort seas containing 

physical and biological features 

essential to the conservation of the 

species and that may require special 

management considerations or 

protection. Based on consideration of 

national security impacts under section 

4(b)(2) of the ESA, we also proposed to 

exclude an area north of the Beaufort 

Sea shelf from the critical habitat 

designation. 

We requested public comments on the 

revised proposed designation and 

associated Draft Impact Analysis Report 

(NMFS 2020) through March 9, 2021, 

and held three public hearings (86 FR 

7686, February 1, 2021). In response to 

requests, we extended the public 

comment period through April 8, 2021 

(86 FR 13517, March 9, 2021). For a 

complete description of our proposed 

action, we refer readers to the revised 

proposed rule (86 FR 1452, January 8, 

2021). 

This final rule describes the critical 

habitat designation for the Arctic ringed 

seal and the basis for the designation, 

including a summary of, and responses 

to, comments received. A detailed 

discussion and analysis of probable 

economic impacts associated with this 

critical habitat designation is provided 

in the Final Impact Analysis Report 

(NMFS 2021), which is referenced 

throughout this final rule. The Arctic 

ringed seal is listed with the scientific 

name Phoca (=Pusa) hispida hispida. In 

this final rule, we continue to use the 

genus name Pusa to reflect currently 

accepted use (e.g., Committee on 

Taxonomy (Society for Marine 

Mammalogy) 2019, Integrated 

Taxonomic Information System (online 

database) 2019). 

Critical Habitat Definition and Process 

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

critical habitat as (1) the specific areas 

within the geographical area occupied 

by the species, at the time it is listed, 

on which are found those physical or 

biological features essential to the 

conservation of the species and which 

may require special management 

considerations or protection; and (2) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary of Commerce (Secretary) that 

such areas are essential for the 

conservation of the species (16 U.S.C. 

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

provides that, except in those 

circumstances determined by the 

Secretary, critical habitat shall not 

include the entire geographical area 

which can be occupied by the 

threatened or endangered species. Also, 

by regulation, critical habitat shall not 

be designated within foreign countries 

or in other areas outside U.S. 

jurisdiction (50 CFR 424.12(g)). 

Conservation is defined in section 

3(3) of the ESA as the use of all methods 


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and procedures which are necessary to 

bring any endangered species or 

threatened species to the point at which 

the measures provided pursuant to this 

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

1532(3)). Therefore, a critical habitat 

designation is not limited to the areas 

necessary for the survival of the species, 

but rather includes areas necessary for 

supporting the species’ recovery. (See 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F.3d 1059, 

1070 (9th Cir. 2004) (‘‘Clearly, then, the 

purpose of establishing ‘critical habitat’ 

is for the government to carve out 

territory that is not only necessary for 

the species’ survival but also essential 

for the species’ recovery.’’), amended on 

other grounds, 387 F.3d 968 (9th Cir. 

2004); Alaska Oil and Gas Ass’n v. 

Jewell, 815 F.3d 544, 555–56 (9th Cir. 

2016).) 

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

Secretary to designate critical habitat for 

threatened and endangered species on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact of specifying any 

particular area as critical habitat. This 

section also grants the Secretary 

discretion to exclude any area from 

critical habitat if he or she determines 

the benefits of such exclusion outweigh 

the benefits of specifying such area as 

part of the critical habitat. However, the 

Secretary may not exclude areas if such 

exclusion will result in the extinction of 

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

Critical habitat designations must be 

based on the best scientific data 

available, rather than the best scientific 

data possible. Bldg. Indus. Ass’n. of 

Superior Cal. v. Norton, 247 F.3d 1241, 

1246–47 (D.C. Cir. 2001). See also 

Alaska Oil & Gas Ass’n v. Jewell, 815 

F.3d 544, 555 (9th Cir. 2016) (The ESA 

‘‘requires use of the best available 

technology, not perfection.’’). Provided 

that the best available information is 

sufficient to enable us to make a 

determination as required under the 

ESA, we must rely on it even though 

there is some degree of imperfection or 

uncertainty. See Alaska v. Lubchenco, 

825 F. Supp. 2d 209, 223 (D.D.C. 2011) 

(‘‘[E]ven if plaintiffs can poke some 

holes in the agency’s models, that does 

not necessarily preclude a conclusion 

that these models are the best available 

science. Some degree of predictive error 

is inherent in the nature of 

mathematical modeling.’’); Oceana, Inc. 

v. Ross, 321 F. Supp. 3d 128, 142 

(D.D.C. 2018) (‘‘[E]ven where data may 

be inconclusive, an agency must rely on 

the best available scientific 

information.’’). There is no obligation to 

conduct independent studies and tests 

to acquire the best possible data. Ross, 

321 F. Supp. 2d at 142 (citations 

omitted). See also San Luis & DeltaMendota Water Auth. v. Locke, 776 F.3d 

971, 995 (9th Cir. 2014) (holding that 

the best available science standard 

‘‘does not require an agency to conduct 

new tests or make decisions on data that 

does not yet exist.’’); Am. Wildlands v. 

Kempthorne, 530 F.3d 991, 999 (D.C. 

Cir. 2008); Southwest Ctr. for Biological 

Diversity v. Babbitt, 215 F.3d 58, 60 

(D.C. Cir. 2000) (‘‘The ‘best available 

data’ requirement makes it clear that the 

Secretary has no obligation to conduct 

independent studies.’’) 

Once critical habitat is designated, 

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

Federal agencies to ensure that actions 

they authorize, fund, or carry out are not 

likely to destroy or adversely modify 

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

requirement is additional to the section 

7(a)(2) requirement that Federal 

agencies ensure that their actions are 

not likely to jeopardize the continued 

existence of ESA-listed species 

(sometimes referred to as the ‘‘jeopardy’’ 

standard). Specifying the geographic 

location of critical habitat also facilitates 

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

ESA by identifying areas where Federal 

agencies can focus their conservation 

programs and use their authorities to 

further the purposes of the ESA (16 

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

requirements do not apply to citizens 

engaged in actions on private land that 

do not involve a Federal agency. 

Description and Natural History 

The Arctic ringed seal is the smallest 

of the northern seals, with typical adult 

body size of 1.5 meters (m) in length 

and 70 kilograms in weight (Kelly et al. 

2010a). Age of sexual maturity for 

female Arctic ringed seals generally 

ranges from 3 to 7 years of age (Smith 

1987, Holst et al. 1999, Quakenbush et 

al. 2011, Crawford et al. 2015), and for 

males ranges from 5 to 7 years of age 

(Frost and Lowry 1981), but with 

geographic and temporal variability 

depending on animal condition and 

population structure (Kelly et al. 2010a). 

It is well established that ringed seals 

can live to more than 40 years of age 

(Kelly et al. 2010a), and that many 

females surviving into their 30s remain 

reproductive; the average life span is 

likely to be much lower, due to high 

first-year mortality rates (Kelly 1988a). 

Distribution and Habitat Use 

Arctic ringed seals are circumpolar 

and are found throughout ice-covered 

waters of the Arctic Ocean Basin and 

southward into adjacent seas, including 

the Bering, Chukchi, and Beaufort seas 

off Alaska’s coast (Frost and Lowry 

1981, Frost 1985, Kelly 1988a, Rice 

1998). Ringed seals are adapted to 

remaining in heavily ice-covered areas 

throughout the fall, winter, and spring 

by using the stout claws on their 

foreflippers to maintain breathing holes 

in the ice. Arctic ringed seals are highly 

associated with sea ice, and use the ice 

as a substrate for resting, whelping 

(birthing), nursing, and molting 

(shedding and regrowing hair and outer 

skin layers). The seasonality of ice cover 

strongly influences Arctic ringed seal 

movements, foraging, reproductive 

behavior, and vulnerability to predation. 

Kelly et al. (2010b) referred to three 

periods important to Arctic ringed seal 

seasonal movements and habitat use: 

The winter through early spring 

‘‘subnivean period’’ when the seals rest 

primarily in subnivean lairs (snow caves 

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

summer ‘‘basking period’’ between 

abandonment of the lairs and melting of 

the seasonal sea ice when the seals 

undergo their annual molt; and the 

open-water ‘‘foraging period’’ from ice 

breakup to freeze-up in the fall, when 

feeding occurs most intensively. 

Information on movements of 

individual ringed seals tagged in Alaska 

indicates that the seals can range 

extensively across the Bering, Chukchi, 

and Beaufort seas annually (Crawford et 

al. 2012a, Von Duyke 2018, Crawford et 

al. 2019, Quakenbush et al. 2019, 

Quakenbush 2020, Von Duyke et al. 

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

that during the August to December 

period, the median cumulative distance 

traveled by 17 ringed seals tagged in 

Alaska was 4,790 kilometers (km) per 

seal (range 2,719 to 5,988 km). 

Subnivean Period: With the onset of 

freeze-up in the fall, many Arctic ringed 

seals that summer in the Beaufort and 

Chukchi seas are thought to move 

generally southward with the advancing 

ice, while others remain in these waters 

over winter (Frost 1985). Adult 

movements during the subnivean period 

have been reported as typically limited, 

especially where ice cover is extensive 

(Kelly and Quakenbush 1990, Harwood 

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

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

due to maintenance of breathing holes 

and social behavior during the breeding 

season (Kelly et al. 2010b). For example, 

Kelly et al. (2010b) reported that the 

home ranges of 55 adult ringed seals 

inhabiting landfast (shorefast) ice in the 

Chukchi and Beaufort seas ranged from 

less than 1 to 27.9 square kilometers in 

April to June. However, some adult 

males have been found to make longdistance movements in the Chukchi and 


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Bering seas during January to March 

(Quakenbush et al. 2019). In contrast, 

subadult Arctic ringed seals have been 

observed to travel relatively long 

distances to remain near the ice edge in 

the Bering Sea in winter (Crawford et al. 

2012a, 2019). Crawford et al. (2012a) 

suggested that this habitat may be 

important for overwintering subadult 

ringed seals; almost all of the subadults 

monitored by Crawford et al. (2019) 

showed this winter habitat use pattern 

along with dive behavior indicative of 

foraging. 

During freeze-up, ringed seals surface 

to breathe in the remaining open water 

of cracks and leads, and as these 

openings in the ice freeze over, the seals 

open breathing holes that they maintain 

as the ice thickens by abrading the ice 

with the claws on their foreflippers 

(Smith and Stirling 1975). Ringed seals 

excavate lairs in snowdrifts over their 

breathing holes where snow depth is 

sufficient (e.g., McLaren 1958, Smith 

and Stirling 1975, Smith 1987). These 

subnivean lairs are occupied for resting, 

whelping, and nursing pups in areas of 

annual landfast ice (McLaren 1958, 

Burns 1970, Kelly et al. 1986, Frost and 

Burns 1989, Smith et al. 1991, Oceana 

and Kawerak 2014) and stable pack ice 

(Finley et al. 1983, Fedoseev et al. 1988, 

Wiig et al. 1999, Pilfold et al. 2014). 

Snowdrifts of sufficient depth typically 

occur only where the ice has undergone 

a low to moderate amount of 

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

hummocking due to wind and ocean 

currents) and where snow on the ice has 

drifted along pressure ridges or ice 

hummocks (Smith and Stirling 1975, 

Lydersen and Gjertz 1986, Furgal et al. 

1996, Lydersen 1998). 

Once mature, females give birth 

annually to a single pup in their lairs 

generally from mid-March through 

April, and the pups are nursed in the 

lairs for an average of 39 days (Hammill 

and Smith 1991), with considerable 

variation (Kelly et al. 2010a). Females 

continue to forage throughout lactation 

while making frequent visits to birth 

lairs (Hammill 1987, Kelly and Wartzok 

1996, Simpkins et al. 2001). The pups 

develop foraging skills before weaning 

(Lydersen and Hammill 1993), and are 

normally weaned before breakup of 

spring ice (McLaren 1958, Smith 1973, 

Kelly 1988a, Smith et al. 1991). 

Subnivean lairs provide protection 

from cold and predators throughout the 

winter months, but they are especially 

important for protecting newborn ringed 

seals. The lairs conceal ringed seals 

from predators, an advantage especially 

important to pups because they start life 

with minimal tolerance for immersion 

in cold water (Smith et al. 1991). Major 

predators of ringed seals include polar 

bears (Ursus maritimus) and Arctic 

foxes (Alopex lagopus) (e.g., Smith 

1976, Frost and Burns 1989, Derocher et 

al. 2004, Thiemann et al. 2008). Pups in 

lairs with thin snow cover are more 

vulnerable to polar bear predation than 

pups in lairs with thick snow cover 

(Hammill and Smith 1989, Ferguson et 

al. 2005). For example, Hammill and 

Smith (1991) noted that polar bear 

predation on ringed seal pups increased 

four-fold in a year when average snow 

depths in their study area decreased 

from 23 to 10 centimeters (cm). Stirling 

and Smith (2004) surmised that most 

pups that survived exposure to cold 

after their subnivean lairs collapsed 

during unseasonal rains were eventually 

killed by polar bears, Arctic foxes, or 

gulls. Similarly, Alaska Native hunters 

from Kotzebue, Alaska, reported that 

when the snow melts early, there is no 

protection for ringed seal pups from 

predators such as jaegers, ravens, and 

foxes (Huntington et al. 2017a); and 

hunters in the Bering Strait region 

suggested that other land predators 

(grizzly bear (Ursus arctos), wolverine 

(Gulo gulo)) may also prey on ringed 

seal pups not protected in lairs 

(Gadamus et al. 2015). 

Subnivean lairs also provide refuge 

from air temperatures too low for 

survival of ringed seal pups. When 

forced to flee into the water to avoid 

predators, the ringed seal pups that 

survive depend on the subnivean lairs 

to subsequently warm themselves 

(Smith et al. 1991). When snow depth 

is insufficient, pups can freeze in their 

lairs, as documented when roofs of lairs 

in the White Sea were only 5 to 10 cm 

thick (Lukin and Potelov 1978). Stirling 

and Smith (2004) also documented 

exposure of ringed seals to hypothermia 

following the collapse of subnivean lairs 

during unseasonal rains near 

southeastern Baffin Island. 

During winter and spring, ringed seals 

are found throughout the Chukchi and 

Beaufort seas (Frost 1985, Kelly 1988a). 

In the Bering Sea, surveys indicate that 

ringed seals use nearly the entire ice 

field over the Bering Sea shelf. During 

an exceptionally high ice year (1976), 

Braham et al. (1984) found ringed seals 

present in the southeastern Bering Sea 

north of the Pribilof Islands to outer 

Bristol Bay, primarily north of the ice 

front. But the authors noted that most of 

these seals were likely immature or 

nonbreeding animals. Frost (1985) 

indicated that ringed seals ‘‘occur as far 

south as Nunivak Island and Bristol 

Bay, depending on ice conditions in a 

particular year, but generally are not 

abundant south of Norton Sound except 

in nearshore areas.’’ More recently, 

surveys conducted in the Bering Sea 

during spring documented numerous 

ringed seals in both nearshore and 

offshore habitat, including south of 

Norton Sound (NMFS Marine Mammal 

Laboratory, 2012–2013, unpublished 

data). Relatively few ringed seal pups 

were documented during these surveys 

(n=65; Lindsay et al. 2021), perhaps 

reflecting, at least in part, that pups 

were sheltered in subnivean lairs and 

thus would not have been detected 

during the surveys. Although highest 

pup densities were located in Norton 

Sound, pups were also documented in 

offshore habitat farther south (Lindsay 

et al. 2021). Satellite tracking data for 

ringed seals tagged in Kotzebue Sound, 

Alaska, showed that adults remained, 

for the most part, in the Chukchi Sea 

and Bering Sea north of St. Lawrence 

Island during winter and spring 

(Crawford et al. 2012a). However, 

movement data for ringed seals tagged 

near Utqiag ̇vik, Alaska, in 2011 

indicated that some adults overwintered 

toward the shelf break in the Bering Sea 

(North Slope Borough, 2012, 

unpublished data). Ringed seals tagged 

more recently in the Chukchi and 

Beaufort seas (primarily adults) used 

areas as far south as Nunivak Island 

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

Kotzebue Sound (Quakenbush et al. 

2019, Quakenbush 2020). Finally, the 

subsistence harvest of ringed seal pups 

by hunters in Quinhagak, Alaska 

(Coffing et al. 1998), suggests that some 

ringed seals may whelp south of 

Nunivak Island. 

Basking Period: Numbers of ringed 

seals hauled out on the surface of the ice 

typically begin to increase during spring 

as the temperatures warm and the snow 

covering the seals’ lairs melts. Although 

the snow cover can melt rapidly, the ice 

remains largely intact and serves as a 

substrate for annual molting, during 

which time seals spend many hours 

basking in the sun (Smith 1973, Finley 

1979, Smith and Hammill 1981, Kelly 

and Quakenbush 1990, Kelly et al. 

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

although there is regional variation (Ryg 

and ;ritsland 1991), and pups molt at 

or shortly after weaning (Kelly 1988a, 

Lydersen and Hammill 1993). Subadult 

harbor seals (Phoca vitulina) and 

spotted seals (Phoca largha) tend to 

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

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

case for subadult ringed seals (Kelly and 

Quakenbush 1990). Usually, the largest 

numbers of basking seals are observed 

in June (Smith 1973, Finley 1979, Smith 


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et al. 1979, Smith and Hammill 1981, 

Moulton et al. 2002a). Thometz et al. 

(2021) reported that metabolism in 

ringed seals increased markedly in 

association with the molt; and discussed 

that, although a study on the molt in 

harbor and spotted seals by AshwellErickson et al. (1986) has often been 

cited as evidence of declines in 

metabolism, that study actually 

documented increasing metabolic rates 

during the regenerative phase of molt. 

Feeding is reduced during the molt, and 

as seals complete this phase of the 

annual pelage cycle and the seasonal sea 

ice melts during the summer, ringed 

seals spend increasing amounts of time 

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

Existing information on the 

distribution and abundance of Arctic 

ringed seals in the U.S. Chukchi and 

Beaufort seas during the molting period 

comes largely from aerial surveys 

conducted for the most part over the 

continental shelf within about 25 to 40 

km of the Alaska coast. However, 

Bengtson et al. (2005) reported results 

for spring aerial surveys conducted 

during two successive years in the 

Chukchi Sea that included a limited 

number of offshore (beyond 43 km from 

the coast) transect lines flown 

perpendicular from the coast up to 185 

km. Ringed seals were observed along 

these offshore transects, albeit at lower 

densities than transects flown closer to 

the coast. Aerial surveys conducted in 

spring to early summer (coincident with 

the periods of Arctic ringed seal 

reproduction and molting) in the U.S. 

Beaufort Sea to investigate bowhead 

whale density and distribution were 

concentrated over the continental shelf, 

but less extensive surveys were also 

conducted over the adjacent shelf slope 

and deeper waters up to about 100 km 

north of the shelf (Ljungblad 1981, 

Ljungblad et al. 1982, Ljungblad et al. 

1983, 1984, Ljungblad et al. 1985, 

Ljungblad et al. 1986, Alaska Fisheries 

Science Center 2020). Incidental 

sightings of ringed seals were recorded 

throughout the survey area, including in 

the limited areas surveyed north of the 

shelf. 

Open-Water Period: Most Arctic 

ringed seals that winter in the Bering 

and southern Chukchi seas are believed 

to migrate northward in spring as the ice 

edge recedes and spend the summer 

open-water period in the pack ice of the 

northern Chukchi and Beaufort seas 

(Frost 1985). Arctic ringed seals are also 

dispersed in ice-free areas of the Bering, 

Chukchi, and Beaufort seas during this 

period. Tracking data indicate that 

tagged ringed seals made extensive use 

of the continental shelf waters of the 

U.S. Chukchi and Beaufort seas during 

the open-water period (Crawford et al. 

2012a, Quakenbush et al. 2019, 

Quakenbush 2020, Von Duyke et al. 

2020). Kelly et al. (2010b) found that 

ringed seals tagged during their study 

ranged during the open-water period up 

to 1,800 km from their small winter/ 

spring home ranges. In addition, 

Harwood et al. (2012) documented longdistance westward movements of mostly 

subadult seals tagged in the Canadian 

Beaufort Sea through the Beaufort Sea 

offshore of the Alaska North Slope and 

continuing into the Chukchi Sea (range: 

706–6,140 km). 

Quakenbush et al. (2019) identified a 

high-use area for tagged ringed seals 

during the open-water period that 

included Barrow Canyon and the 

western Beaufort Sea over the 

continental shelf similar to where Citta 

et al. (2018) mapped a relatively high 

density of locations of tagged ringed 

seals during summer. Although tagged 

ringed seals tracked in U.S. waters 

tended to remain over the continental 

shelf, several individuals also made 

trips into the deep waters north of the 

shelf (Crawford et al. 2019, Quakenbush 

et al. 2019, Quakenbush 2020, Von 

Duyke et al. 2020; Alaska Department of 

Fish and Game (ADF&G) and North 

Slope Borough, 2020, unpublished 

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

that most of the forays by tagged ringed 

seals north of the shelf involved 

movements to retreating pack ice and 

included days when the seals hauled 

out on the ice. Dive recorders indicated 

that foraging-type movements occurred 

over both the continental shelf and 

north of the shelf, suggesting that both 

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

open-water period, some, primarily 

subadult, ringed seals satellite-tagged in 

Svalbard, Norway, made forays into the 

Arctic Ocean Basin, and that time spent 

there increased after a major collapse of 

sea ice in this region, when the seals 

traveled farther to find sea ice (Hamilton 

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

Observations of ringed seals near and 

beyond the outer boundary of the U.S. 

Exclusive Economic Zone (EEZ) north of 

the shelf were also documented by 

marine mammal observers during a 

research geophysical survey conducted 

in the summer of 2010 (Beland and 

Ireland 2010). 

Arctic ringed seals typically lose a 

significant proportion of their blubber 

mass in late winter to early summer and 

then replenish their blubber reserves 

during late summer or fall and into 

winter (Lowry et al. 1980b, Ryg et al. 

1990, Ryg and ;ritsland 1991, Belikov 

and Boltunov 1998, Goodyear 1999, 

Quakenbush et al. 2011, Young and 

Ferguson 2013, Quakenbush et al. 

2020). 

Critical Habitat Identification 

In the following sections, we describe 

the relevant definitions and 

requirements in the ESA and 

implementing regulations at 50 CFR part 

424, and the key information and 

criteria used to prepare this final critical 

habitat designation. In accordance with 

section 4(b)(2) of the ESA, this critical 

habitat designation is based on the best 

scientific data available. Our primary 

sources of information include the 

status review report for the ringed seal 

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

final rules to list four subspecies of 

ringed seals, including the Arctic ringed 

seal, under the ESA (75 FR 77476, 

December 10, 2010; 77 FR 76706, 

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

reports, peer reviewer and public 

comments on the revised proposed rule, 

and relevant Geographic Information 

System (GIS) and satellite data (e.g., 

shoreline data, U.S. maritime limits and 

boundaries data, sea ice extent) for 

geographic area calculations and 

mapping. We also rely upon Indigenous 

Knowledge (IK) of Alaska Native 

subsistence users. 

To identify specific areas that may 

qualify as critical habitat for Arctic 

ringed seals, in accordance with 50 CFR 

424.12(b), we followed a five-step 

process: (1) Identify the geographical 

area occupied by the species at the time 

of listing; (2) identify physical or 

biological habitat features essential to 

the conservation of the species; (3) 

determine the specific areas within the 

geographical area occupied by the 

species that contain one or more of the 

physical and biological features 

essential to the conservation of the 

species; (4) determine which of these 

essential features may require special 

management considerations or 

protection; and (5) determine whether a 

critical habitat designation limited to 

geographical areas occupied by the 

species at the time of listing would be 

inadequate to ensure the conservation of 

the species. Our evaluation and 

conclusions are described in detail in 

the following sections, and incorporate 

changes in response to peer reviewer 

and public comments (see Summary of 

Comments and Responses and Summary 

of Changes From the Revised Proposed 

Designation sections). 

Geographical Area Occupied by the 

Species 

The phrase ‘‘geographical area 

occupied by the species at the time it is 

listed,’’ which appears in the statutory 


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definition of critical habitat, is defined 

by regulation as an area that may 

generally be delineated around species’ 

occurrences as determined by the 

Secretary (i.e., range) (50 CFR 424.02). 

Such areas may include those areas 

used throughout all or part of the 

species’ life cycle, even if not used on 

a regular basis, such as migratory 

corridors, seasonal habitats, and habitats 

used periodically, but not solely, by 

vagrant individuals (Id.). 

Based on existing literature, including 

available information on Arctic ringed 

seal sightings and movements, we 

identified the range of the Arctic ringed 

seal in the final ESA listing rule (77 FR 

76706; December 28, 2012) as the Arctic 

Ocean and adjacent seas, except west of 

157°00′ E longitude (the Kamchatka 

Peninsula), where the Okhotsk 

subspecies of the ringed seal occurs, or 

in the Baltic Sea where the Baltic 

subspecies of the ringed seal is found. 

As noted previously, we cannot 

designate areas outside U.S. jurisdiction 

as critical habitat. Thus, the 

geographical area under consideration 

for this designation is limited to areas 

under U.S. jurisdiction that Arctic 

ringed seals occupied at the time of 

listing. This area extends to the outer 

boundary of the U.S. EEZ in the 

Chukchi and Beaufort seas, and as far 

south as Bristol Bay in the Bering Sea 

(Kelly et al. 2010a). 

Physical and Biological Features 

Essential to the Conservation of the 

Species 

The statutory definition of critical 

habitat refers to ‘‘physical or biological 

features essential to the conservation of 

the species,’’ but the ESA does not 

specifically define or further describe 

these features. Implementing regulations 

at 50 CFR 424.02 define such features as 

those that occur in specific areas and 

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

regulations provide additional details 

and examples of such features. 

As described below in the section, 

Summary of Changes From the Revised 

Proposed Designation, peer reviewer 

and public comments led us to reevaluate and revise the descriptions of 

the essential features identified in the 

revised proposed rule. Based on the best 

scientific information available 

regarding the natural history of the 

Arctic ringed seal and the habitat 

features that are essential to support the 

species’ life-history needs, we have 

identified the following physical and 

biological features that are essential to 

the conservation of the Arctic ringed 

seal within U.S. waters occupied by the 

species. 

(1) Snow-covered sea ice habitat 

suitable for the formation and 

maintenance of subnivean birth lairs 

used for sheltering pups during 

whelping and nursing, which is defined 

as waters 3 m or more in depth (relative 

to MLLW) containing areas of seasonal 

landfast (shorefast) ice or dense, stable 

pack ice, that have undergone 

deformation and contain snowdrifts of 

sufficient depth to form and maintain 

birth lairs (typically at least 54 cm 

deep). 

Snow-covered sea ice habitat suitable 

for the formation and maintenance of 

subnivean birth lairs used for sheltering 

pups during whelping and nursing is 

essential to conservation of the Arctic 

ringed seal because without the 

protection of lairs, ringed seal pups are 

more vulnerable to freezing and 

predation (Lukin and Potelov 1978, 

Smith 1987, Hammill and Smith 1991, 

Smith et al. 1991, Smith and Lydersen 

1991, Stirling and Smith 2004, Ferguson 

et al. 2005). 

Snowdrifts of sufficient depth for 

birth lair formation and maintenance 

typically occur on deformed ice where 

drifting has taken place along pressure 

ridges or ice hummocks (Smith and 

Stirling 1975, Lydersen and Gjertz 1986, 

Smith 1987, Kelly 1988a, Furgal et al. 

1996, Lydersen 1998). For purposes of 

assessing potential impacts of projected 

changes in April Northern Hemisphere 

snow conditions on ringed seals, Kelly 

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

minimum average snow depth required 

on areas of flat ice to form drifts of 

sufficient depth to support birth lair 

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

p. 109) discussed that ringed seals 

require snowdrift depths of 50 to 65 cm 

or more to support birth lair formation. 

To identify the typical snowdrift depth 

for snow-covered sea ice habitat that we 

consider sufficient for Arctic ringed seal 

birth lair formation and maintenance, 

we derived a specific depth threshold as 

follows. At least seven studies have 

reported minimum snowdrift depth 

measurements at Arctic ringed seal birth 

lairs (typically measured near the center 

of the lairs or over the breathing holes) 

off the coasts of Alaska (Kelly et al. 

1986, Frost and Burns 1989), the 

Canadian Arctic Archipelago (Smith 

and Stirling 1975, Kelly 1988b, Furgal et 

al. 1996), Svalbard (Lydersen and Gjertz 

1986), and in the White Sea (Lukin and 

Potelov 1978). The average minimum 

snowdrift depth measured at birth lairs 

was 54 cm across all of the studies 

combined, and 64 cm in the Alaska 

studies only. The average from studies 

in Alaska is based on data from fewer 

years over a shorter time span than from 

all seven studies combined (3 years 

during 1982–1984 versus 11 years 

during 1971–1993, respectively); 

consequently, the Alaska-specific 

average is more likely to be biased if an 

anomalous weather pattern occurred 

during its more limited timeframe. For 

this reason, we conclude that the 

average minimum snowdrift depth 

based on all studies combined (54 cm) 

provides the best available estimate of 

the typical minimum snowdrift depth 

that is sufficient for birth lairs. 

Arctic ringed seals have been reported 

to favor landfast ice as whelping habitat 

(e.g., Smith and Stirling 1975, 1978, 

Smith and Hammill 1981, Lydersen and 

Gjertz 1986, Smith and Lydersen 1991, 

Pilfold et al. 2014). However, landfast 

ice extending seaward from shore may 

freeze to the sea bottom in very shallow 

water (typically less than about 1.5 to 2 

m deep), such as in lagoons, near river 

deltas, and close to shore, during the 

course of winter (commonly referred to 

as ‘‘bottom-fast’’ ice; Reimnitz et al. 

1977, Newbury 1983, Hill et al. 1991, 

Dammann et al. 2018, Dammann et al. 

2019). Where sea ice in very shallow 

waters is bottom-fast, there would 

presumably be little to no ice-free water 

present that would allow the seals to 

swim under and gain access to the ice 

surface for the construction and 

maintenance of birth lairs, except 

perhaps where cracks form in the ice, or 

where the ice is not uniformly frozen to 

or resting on the seafloor. Thus, we 

expect use of bottom-fast ice by Arctic 

ringed seals to be low relative to use of 

ice in deeper waters. Although we are 

aware of few scientific reports or 

publications that provide specific 

information on Arctic ringed seal use of 

sea ice in very shallow areas during the 

period of whelping and nursing, Lukin 

et al. (2006) reported that in the White 

Sea, Arctic ringed seal breathing holes 

and lairs were present in water less than 

3 m deep; however, no birth lairs were 

recorded there. In addition, a study to 

investigate the effects of offshore oil 

development on ringed seals (Williams 

et al. 2002, Williams et al. 2006) 

documented several lairs, including two 

birth lairs, as well as breathing holes, 

seaward of the barrier islands west of 

Prudhoe Bay which, based on their 

locations relative to depths shown on 

the survey maps and navigation charts, 

appear to have been located in water 

that was about 3 m or less in depth, 

although water depth is approximate 

and it is possible that sea ice conditions 

may differ there from those along the 

mainland coast. There is also some 

evidence that observed ringed seal 

densities are lower in very shallow icecovered waters, at least in the Alaskan 


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Beaufort Sea during late May to early 

June (during the molting period) in 

waters less than 3 m deep (Moulton et 

al. 2001, Moulton et al. 2002b, Moulton 

et al. 2002a, Moulton et al. 2003), and 

in waters estimated to be between 3 and 

5 m deep (Frost et al. 2004). 

The extent of landfast ice that 

becomes bottom-fast over winter varies 

along the coast (e.g., Dammann et al. 

2018), and a portion of the landfast ice 

in very shallow waters becomes bottomfast over winter. Use of such ice by 

Arctic ringed seals is expected to be low 

relative to use of ice in waters greater 

than 2 to 3 m depth, and there is some 

evidence that Arctic ringed seal 

densities are lower in waters less than 

3 to 5 m deep, at least in the Beaufort 

Sea during late May to early June. We 

therefore concluded that sea ice habitat 

essential for birth lairs is best described 

in reference to a minimum water depth, 

rather than with a specific focus on 

bottom-fast ice in itself. Specifically, for 

the purpose of describing sea ice habitat 

that is essential for the formation and 

maintenance of birth lairs, we selected 

3 m as the minimum water depth for 

this essential feature. 

Arctic ringed seal whelping has also 

been observed on both nearshore and 

offshore drifting pack ice. As Reeves 

(1998) noted, nearly all research on 

Arctic ringed seal reproduction has been 

conducted in landfast ice, and the 

potential importance of stable but 

drifting pack ice has not been 

adequately investigated. Studies in the 

Barents Sea (Wiig et al. 1999), Baffin 

Bay (Finley et al. 1983) and the 

Canadian Beaufort Sea (Pilfold et al. 

2014) have documented pup production 

in pack ice, and Smith and Stirling 

(1975), citing unpublished data from the 

‘‘Western Arctic’’ (presumably the 

Canadian Beaufort Sea), also indicated 

that ‘‘the offshore areas of shifting but 

relatively stable ice are an important 

part of the breeding habitat.’’ Lentfer 

(1972) reported ‘‘a significant amount of 

ringed seal denning and pupping on 

moving heavy pack ice north of Barrow 

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

conducted in the Bering and Chukchi 

seas during spring have documented 

ringed seals, including observations of 

pups, in offshore areas (NMFS Marine 

Mammal Laboratory, 2012–2013 and 

2016, unpublished data). Ringed seal 

vocalizations detected throughout the 

winter and spring in multi-year acoustic 

recordings collected along the shelf 

break north-northwest of Utqiag ̇vik, 

along with a seasonal change in the 

repertoire during the breeding season, 

also suggest that some Arctic ringed 

seals overwinter and breed in offshore 

pack ice (Jones et al. 2014). We therefore 

conclude that the best scientific 

information available indicates that 

snow-covered sea ice habitat essential 

for the formation and maintenance of 

birth lairs (in waters 3 m or more in 

depth relative to MLLW) includes areas 

of both landfast ice and dense, stable 

pack ice that have undergone 

deformation and contain snowdrifts of 

sufficient depth to form and maintain 

birth lairs, typically at least 54 cm deep. 

(2) Sea ice habitat suitable as a 

platform for basking and molting, which 

is defined as areas containing sea ice of 

15 percent or more concentration in 

waters 3 m or more in depth (relative to 

MLLW). 

Sea ice habitat suitable as a platform 

for basking and molting is essential to 

conservation of the Arctic ringed seal 

because molting is a biologicallyimportant, energy-intensive process that 

could incur increased energetic costs if 

it were to occur in water, or increased 

risk of predation if it were to occur on 

land due to the absence of readily 

accessible escape routes to avoid 

predators (i.e., breathing holes or 

natural openings in sea ice). Moreover, 

we are unaware of any studies 

establishing whether Arctic ringed seals 

can molt successfully in water, or 

reports of healthy Arctic ringed seals 

hauled out on land during the molt 

(they are known to come ashore during 

this period when sick). IK indicates that 

ringed seals, mostly young individuals, 

have been occasionally seen hauled out 

on land in spring near Elim, as well as 

south of Utqiag ̇vik, Alaska, although 

molt status was not addressed 

(Huntington et al. 2015c, 2015d). If 

Arctic ringed seals’ molt becomes more 

frequently interrupted by being forced 

to spend inordinate time in water while 

completing their annual molt, they 

could incur increased energetic costs 

and risk microbial infections of the skin 

(Fay et al. 1978). 

During their annual molt, Arctic 

ringed seals transition from lair use to 

basking on the surface of the ice for long 

periods of time near breathing holes, 

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

2010a). The relatively long periods of 

time that ringed seals spend out of the 

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

Smith and Hammill 1981, Kelly et al. 

2010b) have been ascribed to the need 

to maintain elevated skin temperatures 

during new hair growth (Feltz and Fay 

1966, Kelly and Quakenbush 1990). 

Higher skin temperatures are facilitated 

by basking on the ice and this may 

accelerate shedding and regrowth of 

hair and skin (Feltz and Fay 1966). 

Limited data are available on ice 

concentrations (percentage of ocean 

surface covered by sea ice) used by 

Arctic ringed seals during the basking 

period, in particular for the period 

following ice breakup. Although a 

number of studies have reported an 

apparent preference for consolidated 

stable ice (i.e., landfast ice and 

consolidated pack ice), at least during 

the initial weeks of the basking period, 

some of these studies have also reported 

observations of Arctic ringed seals 

hauled out at low densities in 

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

1982, Kingsley et al. 1985, Lunn et al. 

1997, Chambellant et al. 2012). Arctic 

ringed seals in the Chukchi Sea have 

also been observed basking in high 

densities on the last remnants of the 

seasonal sea ice during late June to early 

July, near the end of the molting period 

(S. Dahle, NMFS, personal 

communication, 2013). Crawford et al. 

(2012a) reported that the average ice 

concentrations (and standard error (SE), 

a measure of variability in the data) 

used by several ringed seals in the 

Chukchi and Bering seas during the 

basking period in June was 20 percent 

(SE = 7.8 percent) for subadults and 38 

percent (SE = 21.4 percent) for adults. 

For a normal distribution of ice 

concentrations used by the seals (i.e., is 

a bell-shaped curve), selecting the mean 

value for ice concentration as a lower 

threshold for the essential feature would 

exclude about half of the range of ice 

concentrations used by the seals. 

Therefore, to select a lower threshold 

that encompasses a majority of the ice 

concentrations used by the seals during 

molting, we subtracted one SE from 

each mean. The average of these 

adjusted values for subadults and adults 

(12.2 percent and 16.6 percent, 

respectively) is 14.4 percent. This is 

nearly identical to the value of 15 

percent ice concentration that is 

commonly used to define the ice edge 

(National Snow and Ice Data Center 

(NSIDC) 2021) and for which there are 

spatial data layers readily available. For 

the purpose of describing the essential 

feature of sea ice habitat that is suitable 

as a platform for basking and molting, 

we selected 15 percent as the minimum 

ice concentration. 

As discussed above, landfast ice 

extending seaward from shore may 

freeze to the sea bottom in very shallow 

water (typically less than about 1.5 to 2 

m deep) during the course of winter and 

remain so into spring, potentially during 

part of the basking and molting period. 

Although some Arctic ringed seals may 

use very shallow ice covered waters, 

where ice is bottom-fast, there would 

presumably be little to no ice-free water 

present that would allow the seals to 

swim under and gain access to the ice 


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surface for basking and molting, except 

perhaps where cracks form in the ice, or 

where the ice is not uniformly frozen to 

or resting on the seafloor. Thus, we 

expect use of bottom-fast ice by Arctic 

ringed seals to be low relative to use of 

ice in deeper waters. Also, as indicated 

above, there is some evidence that 

observed ringed seal densities are lower 

in very shallow ice-covered waters, at 

least in the Alaskan Beaufort Sea during 

late May to early June in waters less 

than 3 to 5 m deep. Based on the best 

scientific information available, we 

therefore conclude that sea ice habitat 

essential for basking and molting is of 

at least 15 percent ice concentration in 

waters 3 m or more in depth (relative to 

MLLW). 

(3) Primary prey resources to support 

Arctic ringed seals, which are defined to 

be small, often schooling, fishes, in 

particular Arctic cod, saffron cod, and 

rainbow smelt; and small crustaceans, 

in particular, shrimps and amphipods. 

Primary prey resources are essential 

to conservation of the Arctic ringed seal 

because the seals likely rely on these 

prey resources the most to meet their 

annual energy budgets. Arctic ringed 

seals rarely prey upon more than 10 to 

15 species in any specific geographic 

location, and typically not more than 2 

to 4 species are considered to be key 

prey (We ̨s5awski et al. 1994). Most prey 

are small, and preferred fishes tend to 

be schooling species that form dense 

aggregations (Kovacs 2007). Despite 

regional and seasonal variations in the 

diets of Arctic ringed seals, fishes of the 

cod family tend to dominate their diet 

in many areas from late autumn through 

early spring, and invertebrates can also 

be important in some regions, at least 

seasonally (as reviewed by Kelly et al. 

2010a). Although Arctic ringed seals 

feed on a wide variety of vertebrate and 

invertebrate prey species, certain prey 

species appear to occupy a prominent 

role in their diets in waters along the 

Alaskan coast. 

Quakenbush et al. (2011; Tables 4–6) 

reported that prey items commonly 

consumed by ringed seals (considered 

for the studies discussed here to be prey 

items identified in at least 25 percent of 

ringed seal stomachs with contents) 

within the 1961 to 1984 and 1998 to 

2009 periods in the Bering and Chukchi 

seas included Arctic cod, saffron cod 

(Eleginus gracilis), shrimps (from the 

families Hippolytidae, Pandalidae, and 

Crangonidae), and amphipods 

(primarily from the families 

Gammaridae and Hyperiidae). The 

authors found that diet composition 

shifted between the two periods toward 

an increased proportion and diversity of 

fish within the recent period, when 

other commonly consumed prey items 

included walleye pollock (Theragra 

chalcogramma) in the Bering Sea and 

rainbow smelt (Osmerus dentex; 

previously called O. mordax or O. 

mordax dentex, also Arctic smelt and 

boreal smelt in some references by 

authors cited herein) in the Chukchi 

Sea. An earlier study by Lowry et al. 

(1980b; Table 2) also indicated that 

ringed seals sampled in the Bering Strait 

region (at Nome) and in the Chukchi Sea 

(at Shishmaref) commonly consumed 

(considered here to be at least 25 

percent of the total food volume in 

ringed seal stomachs with contents in 

any of the five seasonal samples) Arctic 

cod, saffron cod, shrimps, and 

amphipods (Shishmaref, specifically). 

Crawford et al. (2015; Tables 1 and 2) 

indicated that prey items commonly 

consumed by ringed seals during May 

through July within the 1975 to 1984 

and 2003 to 2012 periods in the Bering 

Strait near Diomede included Arctic cod 

and shrimps (for non-pup seals [≥1 year 

of age]); and in the Chukchi Sea near 

Shishmaref included saffron cod and 

shrimps (for both pup and non-pup 

seals). This study similarly found that 

diet composition shifted between the 

two periods toward an increased 

proportion of fish within the recent 

period for non-pup seals from Diomode 

and pups from Shishmaref. Other prey 

items commonly consumed within the 

recent period near Diomede included 

walleye pollock and sculpins (family 

Cottidae) (for non-pup seals); and near 

Shishmaref included rainbow smelt (for 

both pup and non-pup seals) and Pacific 

herring (Clupea pallasi) (24.5 percent of 

non-pup seals). 

In addition, Quakenbush et al. (2020; 

Table 1) compared ringed seal diet in 

the Bering and Chukchi seas (not 

reported separately for each sea) by 

season and age class (pup and non-pup, 

i.e., ≥1 year of age) between the recent 

2016 to 2020 and earlier 2000 to 2015 

periods. Within both periods, during the 

ice-covered (November to May) and/or 

open-water (June to October) season, 

ringed seals (both pup and non-pup) 

commonly consumed Arctic cod, saffron 

cod, shrimps, and amphipods (primarily 

gammarids); and non-pup seals 

commonly consumed rainbow smelt. In 

addition, another prey species—capelin 

(Mallotus villosus)—was commonly 

consumed within the 2016 to 2020 

period by pups during both seasons, and 

mysids (family Mysidae, Neomysis sp.) 

were commonly consumed by pups 

within this period during the icecovered season. 

Two studies provide limited 

information on the diet of ringed seals 

near Utqiag ̇vik and in the central 

Beaufort Sea. Dehn et al. (2007; Table 2) 

indicated that in the Utqiag ̇vik vicinity, 

prey items commonly consumed by 

ringed seals between 1996 and 2001 

(primarily during summer) included 

euphausiids (Thysanoessa spp.), cods 

(primarily Arctic and saffron cod), 

mysids (Mysis and Neomysis spp.), 

amphipods, and pandalid shrimps. In 

addition, Frost and Lowry (1984; Table 

III) found that prey items commonly 

consumed by ringed seals (considered 

here to be at least 25 percent of the 

mean total food volume in ringed seal 

stomachs with contents in any of the 

three seasonal samples) collected near 

Utqiag ̇vik and in the central Beaufort 

Sea (approximately 80 km northwest of 

Prudhoe Bay and near Pingok Island 

and Beaufort Lagoon), primarily 

between 1977 and 1980, included Arctic 

cod, as well as gammarid and hyperiid 

amphipods. 

IK about ringed seals documented for 

coastal communities located in western 

and northern Alaska aligns in general 

with the ringed seal diet information 

from the studies reviewed above. Alaska 

Native hunters interviewed in several 

communities in the Bering Strait region, 

as well as in two communities in the 

northern Bering Sea region, reported 

that ringed seals feed on Pacific herring, 

in particular during spawning (e.g., 

Oceana and Kawerak 2014, Gadamus et 

al. 2015, Huntington et al. 2016, 2017c, 

2017b). Other prey species reported for 

ringed seals in these regions included 

fishes such as capelin, saffron cod, 

Arctic cod, sculpins, salmon, and 

whitefish species, as well as 

invertebrates such as shrimps and crabs 

(Nelson 1981, Huntington 2000, Oceana 

and Kawerak 2014, Gadamus et al. 2015, 

Huntington et al. 2015c, 2015a, 2016, 

2017b), and near Wainwright in the 

Chukchi Sea included smelt, saffron 

cod, and invertebrates such as shrimps 

(Nelson 1981). 

In summary, Arctic cod, saffron cod, 

shrimps, and amphipods were 

identified as prominent prey species for 

the studies conducted in both the Bering 

Sea and the Chukchi Sea, and Arctic 

cod and amphipods were also identified 

as prominent prey species for ringed 

seals sampled near Utqiag ̇vik and in the 

central Beaufort Sea. Rainbow smelt was 

also a prominent prey species since 

about 2000 in the Bering and/or 

Chukchi seas. Several other prey species 

were reported as commonly consumed 

by ringed seals, but these reports were 

more spatially and temporally limited. 

Still, diet composition and the relative 

prominence of certain prey species 

varied both geographically and 

seasonally, and differences in diet 

between age classes (pups and non-pup 


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seals), as well as a temporal shift in diet 

in the Bering and Chukchi seas, have 

been reported. In addition, ringed seal 

diet information for the Beaufort Sea is 

relatively limited. Therefore, based on 

the best scientific data available, we 

conclude that small, often schooling, 

fishes, in particular, Arctic cod, saffron 

cod, and rainbow smelt; and small 

crustaceans, in particular, shrimps and 

amphipods, are the primary prey 

resources of Arctic ringed seals in U.S. 

waters. We find that this level of 

specificity, naming species known to be 

prominent in Arctic ringed seals’ diet 

but not limiting the definition to only 

those species, is most appropriate for 

defining this essential feature based on 

the best scientific data available. 

Because Arctic ringed seals feed on a 

variety of prey items and regional and 

temporal differences in diet have been 

reported, we conclude that areas in 

which the primary prey essential feature 

occurs are those that contain one or 

more of these particular prey resources. 

Specific Areas Containing the Essential 

Features 

To determine which areas qualify as 

critical habitat within the geographical 

area occupied by the species, we are 

required to identify ‘‘specific areas’’ that 

contain one or more of the physical or 

biological features essential to the 

conservation of the species (and that 

may require special management 

considerations or protection, as 

described below) (50 CFR 

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

specific areas is done at a scale 

determined by the Secretary to be 

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

Regulations at 50 CFR 424.12(c) also 

require that each critical habitat area be 

shown on a map. 

In determining the scale and 

boundaries for the specific areas, we 

considered, among other things, the 

scales at which biological data are 

available and the availability of 

standardized geographical data 

necessary to map boundaries. Because 

the ESA implementing regulations allow 

for discretion in determining the 

appropriate scale at which specific areas 

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

not required, nor was it possible, to 

determine whether each square inch, 

acre, or even square mile independently 

meets the definition of ‘‘critical 

habitat.’’ A main goal in determining 

and mapping the boundaries of the 

specific areas is to provide a clear 

description and documentation of the 

areas containing the identified essential 

features. This is ultimately fundamental 

to ensuring that Federal action agencies 

are able to determine whether their 

particular actions may affect the critical 

habitat. 

As described below in the section 

Summary of Changes From the Revised 

Proposed Designation, after revising the 

proposed definitions of the essential 

features, and in response to public 

comments that expressed concerns 

regarding our proposed delineation of 

the boundaries of critical habitat with 

respect to the primary prey resources 

essential feature, we re-evaluated the 

best scientific data available to ensure 

that those boundaries were drawn 

appropriately. As a result, we now 

identify one specific area that contains 

the primary prey resources essential 

feature in addition to the sea ice 

essential features as described in this 

section. 

As we explain below, the essential 

features of Arctic ringed seal critical 

habitat, in particular the sea ice 

essential features, are dynamic and 

variable on both spatial and temporal 

scales. Arctic ringed seal movements 

and habitat use are strongly influenced 

by the seasonality of sea ice, and the 

seals can range widely in response to 

the specific locations of the most 

suitable habitat conditions. Based on the 

best scientific data available, we have 

therefore identified one specific area 

that comprises parts of the Bering, 

Chukchi, and Beaufort seas, within 

which all of the identified essential 

features can be found in any given year. 

We first focused on identifying where 

sea ice essential features occur that 

support the species’ life history 

functions of whelping and nursing 

(when birth lairs are constructed and 

maintained) and molting. As discussed 

above, Arctic ringed seals are highly 

associated with sea ice, and the seals 

tend to migrate seasonally to maintain 

access to the ice. Arctic ringed seal 

whelping, nursing, and molting takes 

place in the Bering, Chukchi, and 

Beaufort seas. Therefore, we considered 

where the sea ice essential features 

occur in all of these waters. 

The dynamic nature of sea ice and the 

spatial and temporal variations in sea 

ice and on-ice snow cover conditions 

constrain our ability to map precisely 

the specific geographic locations where 

the sea ice essential features occur. Sea 

ice characteristics such as ice extent, ice 

concentration, and ice surface 

topography vary spatiotemporally (e.g., 

Iacozza 2011). Snowdrift depths on sea 

ice are also spatiotemporally variable, as 

drifting of snow is determined by 

characteristics of the ice, such as surface 

topography and weather conditions 

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

amounts), among other factors (Iacozza 

and Ferguson 2014). The specific 

geographic locations of essential sea ice 

habitat used by Arctic ringed seals vary 

from year to year, or even day to day, 

depending on many factors, including 

time of year, local weather, and 

oceanographic conditions (e.g., Frost et 

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

al. 2015). In addition, the duration that 

sea ice habitat essential for birth lairs, 

or for basking and molting, is present in 

any given location can vary annually 

depending on the rate of ice melt and 

other factors. The temporal overlap of 

Arctic ringed seal molting with 

whelping and nursing, combined with 

the dynamic nature of sea ice and onice snow depths, also makes it 

impracticable to separately identify 

specific areas where each of these 

essential features occurs. However, it is 

unnecessary to distinguish between 

specific areas containing sea ice 

essential for birth lairs and sea ice 

essential for basking and molting 

because the ESA permits the 

designation of critical habitat where one 

or more essential features occur. 

Arctic ringed seals can range widely, 

which, combined with the dynamic 

variations in sea ice and on-ice snow 

depths, results in individuals 

distributing broadly and using sea ice 

habitats within a range of suitable 

conditions. We integrated these physical 

and biological factors into our 

identification of specific areas where 

one or both sea ice essential features 

occur by considering the information 

currently available on the seasonal 

distribution and movements of Arctic 

ringed seals during the annual period of 

reproduction and molting, along with 

satellite-derived estimates of the 

position of the sea ice edge over time. 

Although this approach allowed us to 

identify specific areas that contain one 

or both of the sea ice essential features 

at certain times, the available data 

supported delineation of specific areas 

only at a coarse scale. Consequently, we 

delineated a single specific area that 

contains the sea ice features essential to 

the conservation of Arctic ringed seals, 

as follows. 

We first identified the southern 

boundary of this specific area. We relied 

on the birth lair essential feature to 

determine the southern boundary of 

critical habitat because peak molting 

(for adults) takes place later in the 

spring as sea ice retreats northward, and 

also because the annual extent and 

timing of sea ice are especially variable 

in the southern periphery of the Arctic 

ringed seal’s habitat in the Bering Sea 

(Boveng et al. 2009, Stabeno et al. 2012, 

Frey et al. 2015). Consequently, we 

concluded that the southern extent of 

sea ice suitable for birth lairs also 


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provides the best estimate of the 

southern extent of sea ice suitable for 

basking and molting. 

As discussed in detail below, because 

existing information is limited on 

whelping locations and the distribution 

of Arctic ringed seals in the Bering Sea 

during spring, a precise southern 

boundary for the critical habitat cannot 

be determined based on such 

information. Available estimates of 

snow-depth on Arctic sea ice derived 

from satellite remote-sensing data are 

spatially and temporally limited and are 

subject to a variety of sources of 

uncertainty (Spreen and Kern 2017, 

Sturm and Massom 2017, Webster et al. 

2018). Further, there is a high degree of 

variability in snow depths on sea ice 

and the spatial distribution of those 

depths within and between years (Sturm 

and Massom 2017, Webster et al. 2018). 

We therefore turned to Sea Ice Index 

data maintained by the NSIDC (Fetterer 

et al. 2017, Version 3.0, accessed 

November 2019) for information on the 

estimated monthly position of the ice 

edge in the Bering Sea during spring 

based on a time series of satellite 

records. Although April is the peak 

month for ringed seal whelping, snowcovered sea ice would need to persist 

for several weeks for pups to be 

sheltered and nursed in birth lairs. We 

therefore considered information on the 

position of the ice edge in the Bering 

Sea during May to assess whether 

basing the southern boundary on this 

ice edge (rather than the April ice edge) 

would most accurately represent the 

southern extent of where the birth lair 

essential feature occurs on a consistent 

basis. We examined the estimated 

position of the May median ice edge for 

both the 30-year 1981 to 2010 reference 

period currently used by NSIDC for the 

Sea Ice Index, and for the more recent 

30-year period of 1990 to 2019, which 

was calculated using methods and data 

types similar to those used for the Sea 

Ice Index. We note that the two most 

recent years included in the 1990 to 

2019 period had record low ice extent 

in the Bering Sea (Stabeno and Bell 

2019). The May median ice edge from 

the Sea Ice Index is located about 22 km 

southwest of St. Matthew Island and 

about 85 km north of Nunivak Island, 

and for the more recent 1990 to 2019 

period, is generally similar to that of the 

Sea Ice Index, except that east of St. 

Matthew Island the ice edge for the 

more recent period has a more variable 

shape. As a result, although the median 

ice edge for both 30-year periods 

reaches the coast at a similar location 

south of Hooper Bay, between that 

location and St. Matthew Island, the 

median ice edge for the more recent 

period is primarily located north of 

Hooper Bay. 

To inform our evaluation of the above 

information relative to determining the 

southern boundary, we considered data 

available on the spring distribution of 

ringed seals in the Bering Sea from 

aerial surveys conducted in in 2012 and 

2013 (NMFS Marine Mammal 

Laboratory, 2012–2013, unpublished 

data). Briefly, these surveys collected 

paired thermal and high-resolution 

digital imagery. Semi-automated 

techniques were used to detect seals 

from the thermal imagery, and expert 

observers then assigned species and age 

class to the detections from the 

associated photographs (Moreland et al. 

2013). For the revised proposed 

designation, we considered information 

on the spatial distribution of ringed seal 

detections (with species identification 

confidence classified as ‘‘positive’’ or 

‘‘likely’’). After the revised proposed 

designation was published, a scientific 

publication by Lindsay et al. (2021) 

became available that produced maps of 

ringed seal densities from the aerial 

survey dataset (based on ringed seal 

detections for all values of species 

identification confidence). We therefore 

considered this information in 

developing the final designation. 

Overall, ringed seal densities in the 

Bering Sea appeared to be higher in 

areas proximate to and north of St. 

Matthew and Nunivak Islands (as 

compared to areas surveyed farther 

south toward the shelf break), with 

highest densities in Norton Sound, 

although ringed seals were documented 

as far south as Bristol Bay. Relatively 

few ringed seal pups were documented 

during these surveys (perhaps reflecting, 

at least in part, that pups were sheltered 

in subnivean lairs and thus would not 

have been detected during the surveys). 

Although pup densities were highest in 

Norton Sound, pups were also 

documented in offshore habitat, 

primarily proximate to and north of St. 

Matthew and Nunivak Island, and 

several pups were detected in offshore 

areas farther south. 

Taken as a whole, we concluded that 

the best scientific data available on the 

spring distribution of ringed seals in the 

Bering Sea suggests that the median 

position of the ice edge for May 

provides the best estimate of the 

southern extent of where the birth lair 

essential feature occurs on a consistent 

basis. In drawing this conclusion, we 

took into consideration that the 2012 

and 2013 surveys were conducted in 

years with above-average ice extent and 

that our focus in delineating the 

southern boundary is on identifying the 

best estimate of the southern extent of 

where the birth lair essential feature 

(and potentially sea ice essential for 

molting) occurs on a consistent basis in 

more than limited areas. Given the 

reduction in sea ice east of St. Matthew 

Island between the reference period 

used for the Sea Ice Index and the more 

recent 30-year period described above, 

we elected to base the southern 

boundary on the estimated position of 

the May median ice edge for the more 

recent 1990 to 2019 period. Because 

Arctic ringed seals use nearly the entire 

ice field over the Bering Sea shelf in the 

spring, depending upon ice conditions 

in a given year, some ringed seals may 

use sea ice for whelping south of the 

southern boundary described above. But 

we concluded that the variability in the 

annual extent and timing of sea ice in 

this southernmost portion of the Arctic 

ringed seal’s range in the Bering Sea 

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

2012, Frey et al. 2015) renders these 

waters unlikely to contain the sea ice 

essential features on a consistent basis 

in more than limited areas. 

To simplify the southern boundary for 

purposes of delineation on maps, we 

modified the line representing the May 

median ice edge for the 1990 to 2019 

period as follows: (1) Intermediate 

points along this line between its 

intersection point with the seaward 

limit of the U.S. EEZ (61°18′15′′ N/ 

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

of St. Matthew Island where it turns 

northeastward (60°7′ N/172°1′ W) were 

removed to form the segment of the 

southern boundary that extends from 

the seaward limit of the U.S. EEZ 

southeastward approximately 340 km; 

and (2) intermediate points along this 

line between the point southwest of St. 

Matthew Island and the point where it 

reaches the coast near Cape Romanzof 

were removed and connected to the 

coast to form the second segment of the 

southern boundary that extends 

northeastward approximately 370 km (at 

61°48′42′′ N/166°6′5′′ W). This editing 

produced a simplified southern 

boundary that retains the general shape 

of the original line representing the May 

median ice edge. 

We then identified the northern 

boundary of the specific area that 

contains one or both of the sea ice 

essential features. As discussed above, 

Arctic ringed seals have a widespread 

distribution, including in offshore pack 

ice. The period during which ringed 

seals bask and molt overlaps with when 

many ringed seals also migrate north 

with the receding ice edge. In addition, 

sea ice and on-ice snow depths are 

dynamic and variable on both spatial 

and temporal scales, and sea ice suitable 


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for basking and molting, and potentially 

for birth lairs, occurs over waters 

extending up to and beyond the seaward 

limit of the U.S. EEZ (see, e.g., Fetterer 

et al. 2017, Sea Ice Index Version 3.0, 

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

concluded that the outer limit of the 

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

best defines the remaining seaward 

boundaries of the area containing the 

sea ice essential features. We note that 

Canada contests the limits of the U.S. 

EEZ in the eastern Beaufort Sea, 

asserting that the line delimiting the two 

countries’ EEZs should follow the 141st 

meridian out to a distance of 200 

nautical miles (nm) as opposed to an 

equidistant line that extends seaward 

perpendicular to the coast at the U.S.- 

Canada land border. Finally, we defined 

the shoreward boundary of the specific 

area delineated for the sea ice essential 

features as the 3-m isobath (relative to 

MLLW), consistent with the 3-m 

minimum water depth identified for 

both features. 

The primary prey species essential to 

support Arctic ringed seals are found in 

a range of habitats in U.S. waters 

occupied by these seals. For example, 

amphipods documented in the diet of 

Arctic ringed seals in U.S. waters 

include the pelagic hyperiid amphipod 

Parathemisto libellula; gammarid 

amphipod species that inhabit the 

underside of sea ice; and benthic 

amphipods and shrimps, which were 

well represented in sampling conducted 

for benthic assessments in the Beaufort, 

Chukchi, and northern Bering seas (e.g., 

Bluhm et al. 2009, Goddard et al. 2014, 

Ravelo et al. 2014, Grebmeier et al. 

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

2017). Notably, Arctic cod and saffron 

cod make up a substantial portion of the 

fish biomass in the U.S. Chukchi Sea 

and Arctic cod dominates the fish 

biomass in the U.S. Beaufort Sea (North 

Pacific Fishery Management Council 

2009, Logerwell et al. 2015). Arctic cod 

are widely distributed, and are regularly 

observed in association with sea ice, but 

they are also found in seasonally icefree waters (Bluhm and Gradinger 2008, 

Love et al. 2016, Mecklenburg et al. 

2016). Arctic cod have been 

documented in surveys of the Beaufort 

Sea and Chukchi Sea shelf and slope 

(e.g., Frost and Lowry 1983, ParkerStetter et al. 2011, Crawford et al. 

2012b, Logerwell et al. 2015, Norcross et 

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

et al. 2020), and their general 

distribution extends northward into 

deeper waters off the shelf (Cohen et al. 

1990, Love et al. 2016, Mecklenburg et 

al. 2016), where Arctic cod were 

observed in water wedges along the 

edges of summer pack ice floes, along 

with amphipods under the ice, and 

diving ringed seals were observed at 

numerous locations (Gradinger and 

Bluhm 2004). The southern extent of the 

distribution of Arctic cod and its 

abundance in the northern and eastern 

Bering Sea are more limited and linked 

to the extent of ice cover and associated 

cold bottom temperatures (Love et al. 

2016, Mecklenburg et al. 2016, Forster 

2019, Marsh and Mueter 2019). The 

distribution of saffron cod overlaps to 

some extent with that of Arctic cod in 

the Chukchi and Beaufort seas, but this 

species is typically found in warmer 

water and has a more shallow coastal 

distribution that extends farther south 

in the Bering Sea (Love et al. 2016, 

Mecklenburg et al. 2016). Similarly, 

rainbow smelt are found primarily in 

shallow coastal waters of the Bering, 

Chukchi, and Beaufort seas (Haldorson 

and Craig 1984, Burns 1990, Logerwell 

et al. 2015, Love et al. 2016, Ormseth 

2019). 

In summary, the available data on the 

distributions of Arctic ringed seal 

primary prey species indicate that they 

occur throughout the geographical area 

occupied by the species. However, 

except in limited circumstances that do 

not apply here, the Secretary cannot 

designate as critical habitat the entire 

geographical area occupied by a species. 

We have no information that suggests 

any portions of the species’ occupied 

habitat contain prey species that are of 

greater importance or otherwise differ 

from those found within the specific 

area defined by the sea ice essential 

features. Although ringed seals may 

forage seasonally in some particular 

areas, such as Barrow Canyon, the seals 

also make extensive use of a diversity of 

habitats for foraging across much 

broader areas in the Bering, Chukchi, 

and Beaufort seas. Most importantly, the 

movements and habitat use of Arctic 

ringed seals are strongly influenced by 

the seasonality of sea ice and they forage 

throughout the year (albeit with reduced 

feeding during molting). Given this and 

our consideration of the best scientific 

data available, we concluded that the 

best approach to determine the 

appropriate boundaries for critical 

habitat is to base the delineation on the 

boundaries identified above for the sea 

ice essential features. We conclude this 

specific area contains sufficient primary 

prey resources to support the 

conservation of Arctic ringed seals. 

Thus, we are designating as critical 

habitat a single specific area that 

contains all three of the identified 

essential features. 

Special Management Considerations or 

Protection 

A specific area within the geographic 

area occupied by a species may only be 

designated as critical habitat if the area 

contains one or more essential physical 

or biological feature that may require 

special management considerations or 

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

CFR 424.12(b)(1)(iv)). ‘‘Special 

management considerations or 

protection’’ is defined as methods or 

procedures useful in protecting the 

physical or biological features essential 

to the conservation of listed species (50 

CFR 424.02). In determining whether 

the essential physical or biological 

features ‘‘may require’’ special 

management considerations or 

protection, it is necessary to find only 

that there is a possibility that the 

features may require special 

management considerations or 

protection in the future; it is not 

necessary to find that such management 

is presently or immediately required. 

Home Builders Ass’n of N. California v. 

U.S. Fish and Wildlife Serv., 268 F. 

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

The relevant management need may be 

‘‘in the future based on possibility.’’ 

Bear Valley Mut. Water Co. v. Salazar, 

No. SACV 11–01263–JVS, 2012 WL 

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

2012). See also Cape Hatteras Access 

Pres. Alliance v. U.S. Dept. of Interior, 

731 F. Supp. 2d 15, 24 (D.D.C. 2010) 

(‘‘The Court explained in CHAPA I that 

‘the word ‘‘may’’ indicates that the 

requirement for special considerations 

or protections need not be immediate’ 

but must require special consideration 

or protection ‘in the future.’ ’’) (citing 

Cape Hatteras Access Pres. Alliance v. 

U.S. Dept. of Interior, 344 F. Supp. 2d 

108, 123–24 (D.D.C. 2004)). 

We have identified four primary 

sources of potential threats to one or 

more of the habitat features identified 

above as essential to the conservation of 

Arctic ringed seals: Climate change; oil 

and gas exploration, development, and 

production; marine shipping and 

transportation; and commercial 

fisheries. As further detailed below, 

both sea ice essential features and the 

primary prey essential feature may 

require special management 

considerations or protection as a result 

of impacts (either independently or in 

combination) from these sources. Our 

evaluation does not consider an 

exhaustive list of threats that could have 

impacts on the essential features, but 

rather considers the primary potential 

threats that we are aware of at this time 

that support our conclusion that special 

management considerations or 


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protection of each of the essential 

features may be required. Further, we 

highlight particular threats associated 

with each source of impacts while 

recognizing that certain threats are 

associated with more than one source 

(e.g., marine pollution and noise). 

Climate Change 

The principal threat to the persistence 

of the Arctic ringed seal is anticipated 

loss of sea ice and reduced on-ice snow 

depths stemming from climate change. 

Climate-change-related threats to the 

Arctic ringed seal’s habitat are 

discussed in detail in the ringed seal 

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

as well as in our proposed and final 

rules to list the Arctic ringed seal as 

threatened. Total Arctic sea ice extent 

has been showing a decline through all 

months of the satellite record since 1979 

(Meier et al. 2014). Although there will 

continue to be considerable annual 

variability in the rate and timing of the 

breakup and retreat of sea ice, trends in 

climate change are moving toward ice 

that is more susceptible to melt (Markus 

et al. 2009), and areas of earlier spring 

ice retreat (Stammerjohn et al. 2012, 

Frey et al. 2015). Notably, February and 

March ice extent in the Bering Sea in 

2018 and 2019 were the lowest on 

record (Stabeno and Bell 2019), and in 

the spring of 2019, melt onset in the 

Chukchi Sea occurred 20 to 35 days 

earlier than the 1981 to 2010 average 

(Perovich et al. 2019). Along with 

reductions in the extent and timing of 

sea ice cover, observations indicate a 

decline in spring snow depth on Arctic 

ice attributed to later sea ice formation 

in autumn (Webster et al. 2014, Webster 

et al. 2018), and a trend toward earlier 

spring rain-on-snow events throughout 

much of the Arctic Ocean in recent 

decades (Dou et al. 2021). Based on 

climate models, a study by Hezel et al. 

(2012) projected a substantial decline 

over this century in average snow depth 

on Arctic sea ice. 

Activities that release carbon dioxide 

and other heat-trapping greenhouse 

gases (GHGs) into the atmosphere, most 

notably those that involve fossil fuel 

combustion, are the major contributing 

factor to climate change and loss of sea 

ice (Intergovernmental Panel on Climate 

Change (IPCC) 2013, U.S Global Climate 

Change Research Program 2017, Stroeve 

and Notz 2018, IPCC 2021). Such 

activities may adversely affect the 

essential features of Arctic ringed seal 

habitat by diminishing snow-covered 

sea ice suitable for birth lairs and sea ice 

suitable for basking and molting, and by 

causing changes in the distribution, 

abundance, and/or species composition 

of prey resources (including Arctic 

ringed seal primary prey resources) in 

association with changes in ocean 

conditions, such as warming and 

acidification (caused primarily by 

uptake of atmospheric CO2) (as 

reviewed by Kelly et al. 2010a, also, e.g., 

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

Arctic Monitoring and Assessment 

Programme (AMAP) 2018, Holsman et 

al. 2018, Thorson et al. 2019, Baker et 

al. 2020, Huntington et al. 2020). 

Declines in the extent and timing of sea 

ice cover may also lead to increased 

shipping activity (discussed below) and 

other changes in anthropogenic 

activities, with the potential for 

increased risks to the habitat features 

essential to Arctic ringed seal 

conservation (Kelly et al. 2010a). Given 

that the quality and quantity of these 

essential features, in particular sea ice, 

may be diminished by the effects of 

climate change, we conclude that 

special management considerations or 

protection may be necessary, either now 

or in the future. 

Oil and Gas Activity 

Oil and gas exploration, development, 

and production activities in the U.S. 

Arctic may include: Seismic surveys; 

exploratory, delineation, and 

production drilling operations; 

construction of artificial islands, 

causeways, ice roads, shore-based 

facilities, and pipelines; and vessel and 

aircraft operations. These activities have 

the potential to affect the essential 

features of Arctic ringed seal critical 

habitat, primarily through pollution 

(particularly in the event of a large oil 

spill), noise, and physical alteration of 

the species’ habitat. 

Large oil spills (considered in this 

section to be spills of relatively great 

size, consistent with common usage of 

the term) are generally considered to be 

the greatest threat associated with oil 

and gas activities in the Arctic marine 

environment (AMAP 2007). Experiences 

with spills in subarctic regions, such as 

in Prince William Sound, Alaska, have 

shown that large oil spills can have 

lasting ecological effects (AMAP 2007, 

Barron et al. 2020). In contrast to spills 

on land, large spills at sea, especially 

when ice is present, are difficult to 

contain or clean up (National Research 

Council 2014, Wilkinson et al. 2017). 

Responding to a sizeable spill in the 

Arctic environment would be 

particularly challenging. Reaching a 

spill site and responding effectively 

would be especially difficult, if not 

impossible, in winter when weather can 

be severe and daylight extremely 

limited. Oil spills under ice or in icecovered waters are the most challenging 

to deal with due to, among other factors, 

limitations on the effectiveness of 

current containment and recovery 

technologies when sea ice is present 

(Wilkinson et al. 2017). The extreme 

depth and the pressure that oil was 

under during the 2010 blowout at the 

Deepwater Horizon well in the Gulf of 

Mexico may not exist in the shallow 

continental shelf waters of the Beaufort 

and Chukchi seas. Nevertheless, the 

difficulties experienced in stopping and 

containing the Deepwater Horizon 

blowout, where environmental 

conditions, available infrastructure, and 

response preparedness were 

comparatively good, point toward even 

greater challenges in containing and 

cleaning a large spill in a much more 

environmentally severe and 

geographically remote Arctic location. 

Although planning, management, and 

use of best practices can help reduce 

risks and impacts, the history of oil and 

gas activities indicates that accidents 

cannot be eliminated (AMAP 2007). 

Data on large spills (e.g., operational 

discharges, spills from pipelines, 

blowouts) in Arctic waters are limited 

because oil exploration and production 

there has been limited. The Bureau of 

Ocean Energy Management (BOEM) 

(2011) estimated the chance of one or 

more oil spills greater than or equal to 

1,000 barrels occurring if development 

were to take place in the Beaufort Sea 

or Chukchi Sea Planning Areas as 26 

percent for the Beaufort Sea over the 

estimated 20 years of production and 

development, and 40 percent for the 

Chukchi Sea over the estimated 25 years 

of production and development. 

Icebreaking vessels, which may be 

used for in-ice seismic surveys or to 

manage ice near exploratory drilling 

ships, also have the potential to affect 

the sea ice essential features of Arctic 

ringed seal critical habitat through 

physical alteration of the sea ice (see 

also Marine Shipping and 

Transportation section). Other examples 

of activities associated with oil and gas 

exploration and development that may 

physically alter the essential sea ice 

features include construction and 

maintenance of offshore ice roads, ice 

pads, and camps, as well as other 

offshore through-ice activities such as 

trenching and installation of pipelines. 

In addition, there is evidence that noise 

associated with activities such as 

seismic surveys can result in behavioral 

and other effects on fishes and 

invertebrate species (Carroll et al. 2017, 

Slabbekoorn et al. 2019), although the 

available data on such effects are 

currently limited, in particular for 

invertebrates (Hawkins et al. 2015, 

Hawkins and Popper 2017), and the 

nature of potential effects specifically 


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on the primary prey resources of Arctic 

ringed seals are unclear. 

In summary, a large oil spill could 

render areas containing the identified 

essential features unsuitable for use by 

Arctic ringed seals. In such an event, sea 

ice habitat essential for whelping, 

nursing, and/or for basking and molting 

could be oiled. Arctic ringed seal 

primary prey resources could also 

become contaminated, experience 

mortality, or be otherwise adversely 

affected by spilled oil. In addition, 

disturbance effects (both physical 

alteration of habitat and acoustic effects) 

could alter the quality of the essential 

features of Arctic ringed seal critical 

habitat, or render habitat unsuitable. We 

conclude that the essential features of 

the habitat of the Arctic ringed seal may 

require special management 

considerations or protection in the 

future to minimize the risks posed to 

these features by oil and gas 

exploration, development, and 

production. 

Marine Shipping and Transportation 

The reduction in Arctic sea ice that 

has occurred in recent years has 

renewed interest in using the Arctic 

Ocean as a potential waterway for 

coastal, regional, and trans-Arctic 

marine operations and in extension of 

the navigation season in surrounding 

seas (Brigham and Ellis 2004, Arctic 

Council 2009). Marine traffic along the 

western and northern coasts of Alaska 

includes tug, towing, and cargo vessels, 

tankers, research and government 

vessels, vessels associated with oil and 

gas exploration and development, 

fishing vessels, and cruise ships (Adams 

and Silber 2017, U.S. Committee on the 

Marine Transportation System 2019). 

Automatic Identification System data 

indicate that the number of unique 

vessels operating annually in U.S. 

waters north of the Bering Sea in 2015 

to 2017 increased 128 percent over the 

number recorded in 2008 (U.S. 

Committee on the Marine 

Transportation System 2019). Climate 

models predict that the warming trend 

in the Arctic will accelerate, causing the 

ice to begin melting earlier in the spring 

and resume freezing later in the fall, 

resulting in an expansion of potential 

transit routes and a lengthening of the 

potential navigation season, and a 

continuing increase in vessel traffic 

(Khon et al. 2010, Smith and 

Stephenson 2013, Stephenson et al. 

2013, Huntington et al. 2015b, Melia et 

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

al. 2017). For instance, analysis of four 

potential growth scenarios (ranging from 

reduced activity to accelerated growth) 

suggests from 2008 to 2030, the number 

of unique vessels operating in U.S. 

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

Bering Sea and northward) may increase 

by 136 to 346 percent (U.S. Committee 

on the Marine Transportation System 

2019). 

The fact that nearly all vessel traffic 

in the Arctic, with the exception of 

icebreakers, purposefully avoids areas of 

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

the risks of shipping to the essential 

habitat features identified for Arctic 

ringed seals. However, icebreakers pose 

greater risks to these features since they 

are capable of operating year-round in 

all but the heaviest ice conditions and 

are often used to escort other types of 

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

through ice-covered areas. Furthermore, 

new classes of ships are being designed 

that serve the dual roles of both tanker/ 

carrier and icebreaker (Arctic Council 

2009). Therefore, if icebreaking 

activities increase in the Arctic in the 

future, as expected, the likelihood of 

negative impacts (e.g., habitat alteration 

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

reside will likely also increase. We are 

not aware of any data currently 

available on the effects of icebreaking on 

the habitat of Arctic ringed seals during 

the reproductive and molting periods. 

Although impacts of icebreaking are 

likely to vary between species 

depending on a variety of factors, 

Wilson et al. (2017) demonstrated the 

potential for impacts of icebreaking, 

which for Caspian seal (Pusa caspica) 

mothers and pups and their sea-icebreeding habitat, included 

displacement, breakup of whelping and 

nursing habitat, and vessel collisions 

with mothers or pups. The authors 

noted that while pre-existing shipping 

channels were used by seals as artificial 

leads, which expanded access to 

whelping habitat, seals that whelp on 

the edge of such leads are vulnerable to 

vessel collision and repeated 

disturbance. 

In addition to the potential effects of 

icebreaking on the essential features, the 

maritime shipping industry transports 

various types of petroleum products, 

both as fuel and cargo. In particular, if 

increased shipping involves the tanker 

transport of crude oil or oil products, 

there would be an increased risk of 

spills (Arctic Climate Impact 

Assessment 2005, U.S. Arctic Research 

Commission 2012). Similar to oil and 

gas activities, the most significant threat 

posed by shipping activities is 

considered to be the accidental or illegal 

discharge of oil or other toxic 

substances carried by ships (Arctic 

Council 2009). 

Vessel discharges associated with 

normal operations, including sewage, 

grey water, and oily wastes are expected 

to increase as a result of increasing 

marine shipping and transportation in 

Arctic waters (Arctic Council 2009, 

Parks et al. 2019), which could affect the 

primary prey of Arctic ringed seals. 

Increases in marine shipping and 

transportation and other vessel traffic is 

also introducing greater levels of 

underwater noise (Arctic Council 2009, 

Moore et al. 2012), with the potential for 

behavioral and other effects in fishes 

and invertebrates (Slabbekoorn et al. 

2010, Hawkins and Popper 2017, 

Popper and Hawkins 2019), although 

there are substantial gaps in the 

understanding of such effects, in 

particular for invertebrates (Hawkins et 

al. 2015, Hawkins and Popper 2017), 

and the nature of potential effects 

specifically on the primary prey of 

Arctic ringed seals are unclear. 

We conclude that the essential 

features of the habitat of the Arctic 

ringed seal may require special 

management considerations or 

protection in the future to minimize the 

risks posed by potential shipping and 

transportation activities because: (1) 

Physical alteration of sea ice by 

icebreaking activities could reduce the 

quantity and/or quality of the sea ice 

essential features; (2) in the event of an 

oil spill, sea ice essential for birth lairs 

and/or for basking and molting could 

become oiled; and (3) the quantity and/ 

or quality of the primary prey resources 

could be diminished as a result of spills, 

vessel discharges, and noise associated 

with shipping, transportation, and icebreaking activities. 

Commercial Fisheries 

The specific area identified in this 

final rule as meeting the definition of 

critical habitat for the Arctic ringed seal 

overlaps with the Arctic Management 

Area and the Bering Sea and Aleutian 

Islands Management Area identified by 

the North Pacific Fishery Management 

Council. No commercial fishing is 

permitted within the Arctic 

Management Area due to insufficient 

data to support the sustainable 

management of a commercial fishery 

there. However, as additional 

information becomes available, 

commercial fishing may be allowed in 

this management area. Two of the 

primary Arctic ringed seal prey species 

identified as essential to the species’ 

conservation—Arctic cod and saffron 

cod—have been identified as likely 

initial target species for commercial 

fishing in the Arctic Management Area 

in the future (North Pacific Fishery 

Management Council 2009). 


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In the northern portion of the Bering 

Sea and Aleutian Islands Management 

Area, commercial fisheries overlap with 

the southernmost portion of the critical 

habitat. Portions of the critical habitat 

also overlap with certain state 

commercial fisheries management areas. 

Commercial catches from waters in the 

critical habitat area primarily include: 

Pacific halibut (Hippoglossus 

stenolepis), several other flatfish 

species, Pacific cod (Gadus 

macrocephalus), several crab species, 

walleye pollock, and several salmon 

species. 

Commercial fisheries may affect the 

primary prey resources identified as 

essential to the conservation of the 

Arctic ringed seal, through removal of 

prey biomass and potentially through 

modification of benthic habitat by 

fishing gear that contacts the seafloor. 

Given the potential changes in 

commercial fishing that may occur with 

the expected increasing length of the 

open-water season and distribution 

shifts of some economically valuable 

species responding to climate change 

(e.g., Stevenson and Lauth 2019, 

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

we conclude that the primary prey 

resources essential feature may require 

special management considerations or 

protection in the future to address 

potential adverse effects of commercial 

fishing on this feature. 

Unoccupied Areas 

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

authorizes the designation of specific 

areas outside the geographical area 

occupied by the species, if those areas 

are determined to be essential for the 

conservation of the species. Our 

regulations at 50 CFR 424.12(b)(2) 

require that we first evaluate areas 

occupied by the species, and only 

consider unoccupied areas to be 

essential where a critical habitat 

designation limited to geographical 

areas occupied would be inadequate to 

ensure the conservation of the species. 

Because Arctic ringed seals are 

considered to occupy their entire 

historical range that falls within U.S. 

jurisdiction, we find that there are no 

unoccupied areas within U.S. 

jurisdiction that are essential to their 

conservation. 

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

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

precludes designating as critical habitat 

any lands or other geographical areas 

owned or controlled by the Department 

of Defense (DOD), or designated for its 

use, that are subject to an Integrated 

Natural Resources Management Plan 

(INRMP) prepared under section 101 of 

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

Secretary determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

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

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

Where these standards are met, the 

relevant area is ineligible for 

consideration as potential critical 

habitat. The regulations implementing 

the ESA set forth a number of factors to 

guide consideration of whether this 

standard is met, including the degree to 

which the plan will protect the habitat 

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

This process is separate and distinct 

from the analysis governed by section 

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

consider the economic impact, the 

impact on national security, and any 

other relevant impact of designation, 

and affords the Secretary discretion to 

exclude particular areas if the benefits 

of exclusion outweigh the benefits of 

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

1533(b)(2). 

Before publication of the revised 

proposed rule (86 FR 1452, January 9, 

2021), we contacted DOD (Air Force and 

Navy) and requested information on any 

facilities or managed areas that are 

subject to an INRMP and are located 

within areas that could potentially be 

designated as critical habitat for the 

Arctic ringed seal. In response to our 

request, the Air Force provided 

information regarding an INRMP 

addressing twelve radar sites, 10 of 

which (7 active and 3 inactive) are 

located adjacent to the area that was 

under consideration for designation as 

critical habitat: Barter Island Long 

Range Radar Site (LRRS), Cape Lisburne 

LRRS, Cape Romanzof LRRS, Kotzebue 

LRRS, Oliktok LRRS, Point Barrow 

LRRS, Tin City LRRS, Bullen Point 

Short Range Radar Site (SRRS), Point 

Lay LRRS, and Point Lonely SRRS. The 

Air Force requested exemption of these 

10 radar sites pursuant to section 

4(a)(3)(B)(i) of the ESA. Based on our 

review of the INRMP (draft 2020 

update), the area we are designating as 

critical habitat, all of which occurs 

seaward of the 3-m isobath, does not 

overlap with DOD lands subject to this 

INRMP. Therefore, we conclude that 

there are no properties owned, 

controlled, or designated for use by 

DOD that are subject to ESA section 

4(a)(3)(B)(i) for this critical habitat 

designation, and thus the exemptions 

requested by the Air Force are not 

necessary because no critical habitat 

would be designated in those radar 

sites. 

Analysis of Impacts Under Section 

4(b)(2) of the ESA 

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

Secretary to designate critical habitat for 

threatened and endangered species on 

the basis of the best scientific data 

available after taking into consideration 

the economic impact, the impact on 

national security, and any other relevant 

impact, of specifying any particular area 

as critical habitat. Regulations at 50 CFR 

424.19(b) also specify that the Secretary 

will consider the probable impacts of 

the designation at a scale that the 

Secretary determines to be appropriate, 

and that such impacts may be described 

qualitatively or quantitatively. The 

Secretary is also required to compare 

impacts with and without the 

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

words, we are required to assess the 

incremental impacts attributable to the 

critical habitat designation relative to a 

baseline that reflects existing regulatory 

impacts in the absence of the critical 

habitat. 

Section 4(b)(2) also describes an 

optional process by which the Secretary 

may go beyond the mandatory 

consideration of impacts and weigh the 

benefits of excluding any particular area 

(that is, avoiding the economic, national 

security, or other relevant impacts) 

against the benefits of designating it 

(primarily, the conservation value of the 

area). If the Secretary concludes that the 

benefits of excluding particular areas 

outweigh the benefits of designation, the 

Secretary may exclude the particular 

area(s) so long as the Secretary 

concludes on the basis of the best 

scientific and commercial data available 

that the exclusion will not result in 

extinction of the species (16 U.S.C. 

1533(b)(2)). We have adopted a policy 

setting out non-binding guidance 

explaining generally how we exercise 

our discretion under 4(b)(2). See Policy 

Regarding Implementation of Section 

4(b)(2) of the Endangered Species Act 

(‘‘4(b)(2) policy,’’ 81 FR 7226, February 

11, 2016). 

While section 3(5) of the ESA defines 

critical habitat as ‘‘specific areas,’’ 

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

consider the impacts of designating any 

‘‘particular area.’’ Depending on the 

biology of the species, the 

characteristics of its habitat, and the 

nature of the impacts of designation, 

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

necessarily be—delineated so that they 

are the same as the already identified 

‘‘specific’’ areas of potential critical 

habitat. For the reasons set forth below, 

we exercised the discretion delegated to 

us by the Secretary to conduct an 

exclusion analysis based on national 


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security impacts with respect to a 

particular area north of the Beaufort Sea 

shelf that meets the definition of critical 

habitat for the Arctic ringed seal, and 

we exclude this area from the 

designation because we concluded that 

the benefits of exclusion outweigh the 

benefits of inclusion. 

The primary impacts of a critical 

habitat designation arise from the ESA 

section 7(a)(2) requirement that Federal 

agencies ensure that their actions are 

not likely to result in the destruction or 

adverse modification of critical habitat 

(i.e., adverse modification standard). 

Determining these impacts is 

complicated by the fact that section 

7(a)(2) contains the overlapping 

requirement that Federal agencies 

ensure that their actions are not likely 

to jeopardize the species’ continued 

existence. One incremental impact of 

critical habitat designation is the extent 

to which Federal agencies change their 

proposed actions to ensure they are not 

likely to adversely modify critical 

habitat, beyond any changes they would 

make to ensure actions are not likely to 

jeopardize the continued existence of 

the species. Additional impacts of 

critical habitat designation include any 

state and/or local protection that may be 

triggered as a direct result of designation 

(we did not identify any such impacts 

for this designation), and other benefits 

that may arise, such as education of the 

public regarding the importance of an 

area for species conservation. 

In determining the impacts of 

designation, we focused on the 

incremental change in Federal agency 

actions as a result of critical habitat 

designation and the adverse 

modification standard (see Ariz. Cattle 

Growers’ Ass’n v. Salazar, 606 F.3d 

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

that USFWS permissibly attributed the 

economic impacts of protecting the 

northern spotted owl as part of the 

baseline and was not required to factor 

those impacts into the economic 

analysis of the effects of the critical 

habitat designation)). We analyzed the 

impacts of this designation based on a 

comparison of conditions with and 

without the designation of critical 

habitat for the Arctic ringed seal. The 

‘‘without critical habitat’’ scenario 

represents the baseline for the analysis. 

It includes process requirements and 

habitat protections already extended to 

the Arctic ringed seal under its ESA 

listing and under other Federal, state, 

and local regulations. The ‘‘with critical 

habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

critical habitat for the Arctic ringed seal. 

Our analysis for this final rule is 

described in detail in the associated 

Final Impact Analysis Report. This 

analysis assesses the incremental costs 

and benefits that may arise due to the 

critical habitat designation, with 

economic costs estimated over the next 

10 years. We chose the 10-year 

timeframe because it is lengthy enough 

to reflect the planning horizon for 

reasonably predicting future human 

activities, yet it is short enough to allow 

reasonable projections of changes in use 

patterns in an area, as well as of 

exogenous factors (e.g., world supply 

and demand for petroleum, U.S. 

inflation rate trends) that may be 

influential. This timeframe is consistent 

with guidance provided in Office of 

Management and Budget (OMB) 

Circular A–4 (OMB 2003, 2011). We 

recognize that economic costs of the 

designation are likely to extend beyond 

the 10-year timeframe of the analysis, 

though we have no information 

indicating that such costs in subsequent 

years would be different from those 

projected for the first 10-year period. 

However, we could not monetize or 

quantify such costs, as forecasting 

potential future Federal actions that 

may require section 7 consultation 

regarding Arctic ringed seal critical 

habitat becomes increasingly 

speculative beyond the 10-year time 

window of the analysis. 

Below, we summarize our analysis of 

the impacts of designating the specific 

area identified in this final rule as 

meeting the definition of critical habitat 

for the Arctic ringed seal. Additional 

detail is provided in the Final Impact 

Analysis Report prepared for this final 

rule. 

Benefits of Designation 

We expect that Arctic ringed seals 

will increasingly experience the ongoing 

loss of sea ice and changes in ocean 

conditions associated with climate 

change, and the significance of other 

habitat threats will likely increase as a 

result. As noted above, the primary 

benefit of a critical habitat designation— 

and the only regulatory consequence— 

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

requirement that all Federal agencies 

ensure that any actions authorized, 

funded, or carried out by such agencies 

are not likely to destroy or adversely 

modify the designated habitat. This 

benefit is in addition to the section 

7(a)(2) requirement that all Federal 

agencies ensure that their actions are 

not likely to jeopardize listed species’ 

continued existence. Another benefit of 

critical habitat designation is that it 

provides Federal agencies and the 

public specific notice of the areas and 

features essential to the conservation of 

the Arctic ringed seal, and the types of 

activities that may reduce the 

conservation value or otherwise affect 

the habitat. This information will 

consistently focus future ESA section 7 

consultations on key habitat attributes. 

The designation of critical habitat can 

also inform Federal agencies regarding 

the habitat needs of Arctic ringed seals, 

which may facilitate using their 

authorities to support the conservation 

of this species pursuant to ESA section 

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

projects in ways that avoid, minimize, 

and/or mitigate adverse effects to 

critical habitat from the outset. 

In addition, the critical habitat 

designation may result in indirect 

benefits, as discussed in detail in the 

Final Impact Analysis Report, including 

education and enhanced public 

awareness, which may help focus and 

contribute to conservation efforts for the 

Arctic ringed seal and its habitat. For 

example, by identifying areas and 

features essential to the conservation of 

the Arctic ringed seal, complementary 

protections may be developed under 

state or local regulations or voluntary 

conservation plans. These other forms of 

benefits may be economic in nature 

(whether market or non-market, 

consumptive, non-consumptive, or 

passive), educational, cultural, or 

sociological, or they may be expressed 

through enhanced or sustained 

ecological functioning of the species’ 

habitat, which itself yields ancillary 

welfare benefits (e.g., improved quality 

of life) to the region’s human 

population. For example, because the 

critical habitat designation is expected 

to result in enhanced conservation of 

the Arctic ringed seal over time, 

residents of the region who value these 

seals, such as subsistence users, could 

experience indirect benefits by enjoying 

subsistence activities associated with 

this species. As another example, the 

geographic area identified as meeting 

the definition of critical habitat for the 

Arctic ringed seal overlaps substantially 

with the range of the polar bear in the 

United States, and the Arctic ringed seal 

is the primary prey species of the polar 

bear, so the designation may also 

enhance conservation of the polar bear, 

and in turn provide indirect benefits 

(e.g., existence and option values). 

Indirect benefits may also be associated 

with enhanced habitat conditions for 

other co-occurring species, such as the 

Pacific walrus (Odobenus rosmarus 

divergens), the Beringia DPS bearded 

seal, and other seal species. 

It is not presently feasible to 

monetize, or even quantify, each 

component part of the benefits accruing 


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from the designation of critical habitat 

for the Arctic ringed seal. Therefore, we 

augmented the quantitative 

measurements that are summarized here 

and discussed in detail in the Final 

Impact Analysis Report with qualitative 

and descriptive assessments, as 

provided for under 50 CFR 424.19(b) 

and in guidance set out in OMB Circular 

A–4. Although the best available 

information does not provide an 

estimate to monetize or quantify all of 

the incremental benefits of the critical 

habitat designation, we conclude that 

they are not inconsequential. 

Economic Impacts 

Direct economic costs of the critical 

habitat designation accrue primarily 

through implementation of section 

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

Federal agencies (‘‘section 7 

consultations’’) to ensure that their 

proposed actions are not likely to 

destroy or adversely modify critical 

habitat. Those economic impacts may 

include both administrative costs and 

costs associated with project 

modifications. Based on the best 

scientific and commercial data available 

and our assessment of the record of 

section 7 consultations from 2013 to 

2019 on activities that may have 

affected the essential features (relatively 

few relevant consultations were 

identified for the 3 years prior to when 

the Arctic ringed seal was listed under 

the ESA), as well as available 

information on planned activities, we 

have not identified any likely 

incremental economic impacts 

associated with project modifications 

that would be required solely to avoid 

impacts to Arctic ringed seal critical 

habitat. The critical habitat designation 

is not likely to result in more requested 

project modifications because our 

section 7 consultations on potential 

effects to Arctic ringed seals and our 

incidental take authorizations for Arctic 

activities under section 101(a) of the 

Marine Mammal Protection Act 

(MMPA) both typically address habitatassociated effects to the seals even in 

the absence of a critical habitat 

designation. This is not to say such 

project modifications could not occur in 

situations we are unable to predict at 

this time, but based on the best 

information available for the 10-year 

period of the analysis, it is likely that 

any project modifications necessary to 

avoid impacts to Arctic ringed seal 

critical habitat would also be necessary 

to avoid impacts to the species in 

section 7 consultations that would occur 

irrespective of this designation. As a 

result, the direct incremental costs of 

this critical habitat designation are 

expected to be limited to the additional 

administrative costs of considering 

Arctic ringed seal critical habitat in 

future section 7 consultations. 

To identify the types of Federal 

activities that may affect critical habitat 

for the Arctic ringed seal, and therefore 

would be subject to the ESA section 7 

adverse modification standard, we 

examined the record of section 7 

consultations from 2013 to 2019. These 

activities include oil and gas related 

activities, dredge mining, navigation 

dredging, in-water construction, 

commercial fishing, oil spill response, 

and certain military activities. We 

projected the occurrence of these 

activities over the timeframe of the 

analysis (the next 10 years) using the 

best available information on planned 

activities and the frequency of recent 

consultations for particular activity 

types. Notably, all of the projected 

future Federal actions that may trigger 

an ESA section 7 consultation because 

of their potential to affect one or more 

of the essential habitat features also 

have the potential to affect Arctic ringed 

seals. In other words, none of the 

activities we identified would trigger a 

section 7 consultation solely on the 

basis of the critical habitat designation. 

We recognize there is inherent 

uncertainty involved in predicting 

future Federal actions that may affect 

the essential features of Arctic ringed 

seal critical habitat; however, we did 

not receive any new relevant 

information in response to our specific 

request for comments and information 

regarding the types of activities that are 

likely to be subject to section 7 

consultation as a result of the 

designation that changed our projection 

of future Federal actions that may 

trigger consultation. 

We expect that the majority of future 

ESA section 7 consultations analyzing 

potential effects on the essential habitat 

features will involve NMFS and BOEM 

authorizations and permitting of oil and 

gas related activities. In assessing costs 

associated with these consultations, we 

took a conservative approach by 

estimating that future section 7 

consultations addressing these activities 

would be more complex than for other 

activities, and would therefore incur 

higher third-party (i.e., applicant/ 

permittee) incremental administrative 

costs per consultation to consider effects 

to Arctic ringed seal critical habitat (see 

Final Impact Analysis Report). These 

higher third-party costs may not be 

realized in all cases because the 

administrative effort required for a 

specific consultation depends on factors 

such as the location, timing, nature, and 

scope of the potential effects of the 

proposed action on the essential 

features. There is also considerable 

uncertainty regarding the timing and 

extent of future oil and gas exploration 

and development in Alaska’s Outer 

Continental Shelf (OCS) waters, as 

indicated by Shell’s 2015 withdrawal 

from exploratory drilling in the Chukchi 

Sea, BOEM’s 2017–2022 OCS Oil and 

Gas Leasing Program, and the 

reinstatement of the 2016 withdrawal of 

the Chukchi Sea and most of the 

Beaufort Sea from consideration for oil 

and gas leasing in January 2021 

(Executive Order (E.O.) 13990). 

Although NMFS completed formal 

consultations for oil and gas exploration 

activities in the Chukchi Sea in all but 

2 years between 2006 and 2015, no such 

activities or related consultations with 

NMFS have occurred since that time. 

As detailed in the Final Impact 

Analysis Report, the total incremental 

costs associated with the critical habitat 

designation over the next 10 years, in 

discounted present value terms, are 

estimated to be $714,000 at a 7 percent 

discount rate and $834,000 at a 3 

percent discount rate, for an annualized 

cost of $95,000 at both a 7 percent and 

a 3 percent discount rate. About 83 

percent of these incremental costs are 

expected to accrue from ESA section 7 

consultations associated with oil and 

gas activities in the Chukchi and 

Beaufort seas and adjacent onshore 

areas. 

We have concluded that the potential 

economic impacts associated with the 

critical habitat designation are modest 

both in absolute terms and relative to 

the level of economic activity expected 

to occur in the affected area, which is 

primarily associated with oil and gas 

activities that may occur in the Beaufort 

and Chukchi seas. As a result, and in 

light of the benefits of critical habitat 

designation discussed above and in the 

Final Impact Analysis Report, we are 

not exercising our discretion to further 

consider and weigh the benefits of 

excluding any particular area based on 

economic impacts against the benefits of 

designation. 

National Security Impacts 

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

requires consideration of national 

security impacts. As noted in the 

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

section above, before publication of our 

2014 proposed rule, we contacted DOD 

regarding any potential military 

operations impacts of designating 

critical habitat for the Arctic ringed seal. 

In a letter dated June 3, 2013, the DOD 

Regional Environmental Coordinator 

indicated that no impacts on national 

security were foreseen from such a 


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designation. As a result, in that 

proposed rule we did not identify any 

direct impacts from the critical habitat 

designation on activities associated with 

national security. 

Following publication of our 2014 

proposed rule, by a letter dated April 

17, 2015, DOD indicated that upon 

further review, it had identified national 

security concerns with the designation 

due to overlap of the proposed critical 

habitat with an area that is used by the 

U.S. Navy for training and testing 

activities. This area was described as 

waters north of Prudhoe Bay off the 

Beaufort Sea shelf between 

approximately 125 and 200 nm from 

shore, extending east to the Canadian 

border and seaward to the outer 

boundary of the U.S. EEZ. DOD 

requested that NMFS exclude this area 

from the critical habitat designation due 

to national security impacts, expressing 

the view that designation of this area 

will impact national security if training 

and testing activities are prohibited or 

severely degraded, as detailed in a 

comment letter from the Navy dated 

March 30, 2015. More recently, by letter 

dated March 17, 2020, the Navy 

reiterated its request for this exclusion 

due to national security impacts, but 

modified the description of the 

particular area to include waters off the 

Beaufort Sea shelf between 

approximately 100 and 200 nm from 

shore (noting that ice conditions have 

required the Navy to conduct some 

recent activities closer to shore). 

However, in developing this final rule, 

we followed up with the Navy regarding 

the location of this area. The Navy 

clarified that the description in its 2020 

letter was outdated and inconsistent 

with the map included in the letter. The 

particular area the Navy intended to 

request be excluded from designation 

includes waters off the Beaufort Sea 

shelf between approximately 50 to 80 

and 200 nm from shore. 

The Navy indicated in its written 

communications that it conducts Arctic 

training and testing exercises, referred 

to by the Navy as Ice Exercises (ICEXs), 

on and below the sea ice within the 

particular area requested for exclusion. 

ICEXs and the accompanying base 

camps are established anywhere from 

100 to 200 nm north of Prudhoe Bay, 

Alaska. These exercises are planned to 

occur every 2 years and typically last 25 

to 45 days. ICEX camps include 

approximately 15 to 20 temporary 

shelters which support 30 to 65 

personnel. Training and testing 

activities include: Submarine activities; 

submarine surfacing, in which 

submarines avoid pressure ridges and 

conduct surfacings in first year ice or in 

polynyas; aircraft operations; building 

of runways; and other on-ice activities. 

The Navy noted that ICEX activities 

alter the ice by creating holes to deploy 

training and testing equipment and 

surfacing submarines. The Navy 

explained that due to the need for stable 

ice, flights are conducted immediately 

prior to buildup of the ICEX camp to 

determine the final location. 

The Navy also noted that the Office of 

Naval Research conducts research 

testing activities in the deep waters of 

the Beaufort Sea with acoustic sources 

and the use of icebreaking ships to 

deploy and retrieve these sources, 

which it plans to continue in the future, 

and expressed concern that the 

designation of critical habitat could 

impact these activities. The Navy 

indicated that it also conducts other 

training and testing activities in the 

Arctic region in support of gaining and 

maintaining military readiness in this 

region, and expects additional training 

and testing activities to occur in this 

region. The activities may be similar to 

those identified for ICEXs, and likely 

also would include vessel movements, 

icebreaking, and support transport by 

air and sea. Testing activities may 

include air platform/vehicle tests, 

missile testing, gunnery testing, and 

anti-submarine warfare tracking testing. 

The Navy expressed the concern that 

the critical habitat may impact national 

security if training and testing activities 

are prohibited or are required to be 

mitigated (for the protection of critical 

habitat) to the point where training and 

testing value is severely degraded, or if 

the Navy is unable to access certain 

locations within the Arctic region. The 

Navy indicated that if the critical habitat 

designation maintains the same 

boundaries identified in our 2014 

proposed designation, it does not 

foresee a way that its training and 

testing activities will be able to be 

conducted without significant impacts 

on those activities. The Navy indicated 

that due to the size of the area proposed 

in 2014 as critical habitat for the Arctic 

ringed seal and the uniqueness of Arctic 

conditions, the Navy would not be able 

to shift its training activities to other 

areas or to different times of the year. 

In addition to the information 

provided by the Navy, by letter dated 

April 30, 2020, the Air Force provided 

information concerning its activities at 

radar sites located adjacent to the area 

under consideration for designation as 

critical habitat (relevant sites identified 

above in the Application of ESA Section 

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

requested that we consider excluding 

critical habitat near these sites under 

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

impacts on national security. Although 

we do not exempt the radar sites 

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

ESA, as discussed above, here we 

consider whether to exclude critical 

habitat located adjacent to these sites 

under section 4(b)(2) based on national 

security impacts. 

The Air Force noted that annual fuel 

and cargo resupply activities occur at 

these radar sites primarily in the 

summer and installation beaches are 

used for offload. The Air Force 

indicated that coastal operations at 

these installations are limited, and 

when barge operations occur, protective 

measures are implemented per the Polar 

Bear and Pacific Walrus Avoidance Plan 

(preliminary final 2020) associated with 

the INRMP in place for these sites. The 

Air Force discussed that it also conducts 

sampling and monitoring at these sites 

as part of the DOD’s Installation 

Restoration Program, and conducts 

larger scale contaminant or debris 

removal in some years that can require 

active disturbance of the shoreline. 

Coastal barge operations are a feature of 

both monitoring and removal actions. 

Federal agencies have an existing 

obligation to consult with NMFS under 

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

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the Arctic ringed 

seal, regardless of whether or where 

critical habitat is designated for the 

species. The specific area identified as 

meeting the definition of critical for 

Arctic ringed seals in this final rule 

includes marine habitat extending 

seaward from the 3-m isobath (relative 

to MLLW), rather than from the line of 

MLLW as we had proposed. Thus, 

waters adjacent to the radar sites 

identified by the Air Force overlap to 

lesser extent with this specific area. The 

activities described in the Air Force’s 

exclusion request are localized and 

small in scale, and it is unlikely that 

modifications to these activities would 

be needed to address impacts to critical 

habitat beyond any modifications that 

may be necessary to address impacts to 

Arctic ringed seals. We therefore 

anticipate that the time and costs 

associated with consideration of the 

effects of future Air Force actions on 

Arctic ringed seal critical habitat under 

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

limited if any, and the consequences for 

the Air Force’s activities, even if we do 

not exempt or exclude the requested 

areas from critical habitat designation, 

would be negligible. 

As a result, and in light of the benefits 

of critical habitat designation discussed 

above and in the Final Impact Analysis 

Report, with respect to the Air Force’s 


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request, we have concluded that the 

benefits of exclusion do not outweigh 

the benefits of designation and therefore 

we are not exercising our discretionary 

authority to exclude these particular 

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

ESA based on national security impacts. 

However, given the specific national 

security concerns identified by the 

Navy, below we provide an analysis of 

our decision to exercise our 

discretionary authority under section 

4(b)(2) of the ESA to exclude the area 

requested by the Navy based on national 

security impacts. 

Other Relevant Impacts 

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

consider any other relevant impacts of 

critical habitat designation. For 

example, we may consider potential 

adverse effects on existing management 

or conservation plans that benefit listed 

species, and we may consider potential 

adverse effects on tribal lands or trust 

resources. In preparing this critical 

habitat designation, we have not 

identified any such management or 

conservation plans, tribal lands or 

resources, or anything else that would 

be adversely affected by the critical 

habitat designation. Some Alaska Native 

organizations and tribes have expressed 

concern that the critical habitat 

designation might restrict subsistence 

hunting of ringed seals or other marine 

mammals, such that important hunting 

areas should be considered for 

exclusion, but no restrictions on 

subsistence hunting are associated with 

this designation. Accordingly, we are 

not exercising our discretion to conduct 

an exclusion analysis pursuant to 

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

other relevant impacts. 

Exclusion Based on National Security 

Impacts 

In the revised proposed rule, we 

proposed to exclude an area north of the 

Beaufort Sea shelf that is used by the 

Navy for training and testing activities 

based on our finding that the benefits to 

national security of exclusion outweigh 

the benefits of designation. In 

developing this final rule, we followed 

up with the Navy regarding the location 

of this area. The Navy clarified that the 

spatial data it previously provided to 

NMFS to map the requested exclusion 

inadvertently contained outdated 

information that did not reflect the full 

southern extent of the particular area 

they intended to request be excluded 

from the designation, which includes 

waters about 50 nm south of the 

southern boundary of the proposed 

exclusion area east of 150° W longitude. 

In reference to the southern extent of the 

requested exclusion, the Navy explained 

that the camp location for recent ICEXs 

has been positioned to the south of the 

area we proposed to exclude from 

designation in the revised proposed 

rule. In addition, the Navy requested 

that the western boundary of the 

proposed exclusion be extended one 

degree west to account for research 

activities being conducted by the Office 

of Naval Research within this area. 

Based on the written information 

provided by the Navy (summarized in 

the National Security Impacts section 

above), and clarifications provided 

through subsequent communications 

with the Navy regarding the southern 

and western boundaries of the particular 

area requested for exclusion, we 

evaluated whether there was a 

reasonably specific justification 

indicating that designating certain areas 

as critical habitat would have a probable 

incremental impact on national security. 

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

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

the Navy provides a reasonably specific 

justification, we will defer to its expert 

judgment as to: (1) Whether activities on 

its lands or waters, or its activities on 

other lands or waters, have national 

security or homeland-security 

implications; (2) the importance of those 

implications; and (3) the degree to 

which the cited implications would be 

adversely affected by the critical habitat 

designation. In conducting our review of 

this exclusions request under section 

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

to the Navy’s national security concerns. 

To weigh the national security impacts 

against conservation benefits of a 

potential critical habitat designation, we 

considered the following: (1) The size of 

the area requested for exclusion 

compared with the total size of the 

specific area that meets the definition of 

critical habitat for the Arctic ringed seal; 

(2) the conservation value of the area 

requested for exclusion; (3) the 

possibility that the Navy’s activities 

would affect the area requested for 

exclusions and trigger ESA section 7 

consultations, and the likelihood that 

Navy activities would need to be 

modified to avoid adverse modification 

or destruction of critical habitat; and (4) 

the likelihood that other Federal actions 

may occur that would no longer be 

subject to the ESA’s critical habitat 

provisions if the particular area were 

excluded from the designation. 

The area requested for exclusion 

comprises approximately 18 percent of 

the marine habitat that meets the 

definition of critical habitat for the 

Arctic ringed seal, and approximately 

60 percent of the portion of this marine 

habitat north of the Beaufort Sea shelf 

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

by the Navy in its exclusion request, 

and as discussed above in the 

Distribution and Habitat Use and 

Specific Areas Containing the Essential 

Features sections, data currently 

available on ringed seal use of the 

requested exclusion area, particularly 

for the northernmost portion, are 

limited. As we discussed above (see 

Specific Areas Containing the Essential 

Features section), aerial surveys of 

ringed seals during the periods of 

reproduction and molting have been 

conducted for the most part over the 

continental shelf within about 25 to 40 

km of the Alaska coast. However, 

incidental sightings of ringed seals were 

documented up to about 100 km north 

of the Beaufort Sea shelf during 

bowhead whale aerial surveys 

conducted during spring and early 

summer. Although we are not aware of 

any similar data for U.S. waters farther 

north, the trend toward areas of earlier 

spring ice retreat suggests that habitat 

areas closer to the northern boundary of 

the U.S. EEZ are likely to retain sea ice 

suitable for birth lairs and/or basking 

and molting longer than habitat areas 

further to the south. In addition, recent 

satellite telemetry data for ringed seals 

tagged on the Alaska coast show that 

during the open-water season, some of 

these seals made forays north of the 

Beaufort Sea shelf, including into the 

westernmost part of the area requested 

for exclusion (Crawford et al. 2019, 

Quakenbush et al. 2019, Quakenbush et 

al. 2020, Von Duyke et al. 2020; ADF&G 

and North Slope Borough, 2020, 

unpublished data). We note that the 

telemetry data for these seals are 

unlikely to fully reflect the distribution 

of this species in U.S. waters for a 

number of reasons. For example, as 

discussed by Citta et al. (2018), the 

distribution of telemetry locations for 

tagged ringed seals is influenced by the 

location and season of tagging. Thus, 

although the area requested for 

exclusion contains one or more of the 

essential features of the Arctic ringed 

seal’s critical habitat, data are limited at 

this time to inform our assessment of 

the relative value of this area to the 

conservation of the species. Dive 

recorders indicated that foraging-type 

movements of some of these tagged seals 

occurred over both the continental shelf 

and north of the shelf, suggesting that 

both areas may be important to ringed 

seals during the open-water period. 

Observations of ringed seals near and 

beyond the outer boundary of the U.S. 

EEZ in the Arctic Ocean Basin were also 

documented by marine mammal 

observers during a research geophysical 


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survey conducted in the summer of 

2010. 

The testing and training activities 

described in the Navy’s exclusion 

request are temporally limited, 

localized, and small in scale. Based on 

our analysis of past Navy activities in 

the area, we think it is unlikely that 

modifications to such activities would 

be required if the particular area is 

designated as critical habitat (beyond 

modifications necessary to avoid 

impacts to ringed seals). However, we 

defer to the Navy’s assessment of the 

critical importance of these activities to 

national security and acknowledge that 

any possibility of modifications could 

have adverse impacts on activities 

important to national security. The 

Navy has an existing obligation to 

consult with NMFS under section 

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

activities it funds or carries out are not 

likely to jeopardize the continued 

existence of the Arctic ringed seal, 

regardless of whether or where critical 

habitat is designated for the species. 

Aside from the Navy’s training and 

testing activities, we are aware of few 

other Federal actions that would be 

expected to affect the particular area 

requested for exclusion. 

In the revised proposed rule, we 

found that the benefits of excluding the 

requested area due to national security 

impacts outweighed the benefits of 

designating this area as critical habitat 

for the Arctic ringed seal, and exclusion 

of the area is not expected to result in 

the extinction of the species. As 

discussed in the Summary of Comments 

and Responses section of this final rule, 

we received public comments that 

expressed opposition to the exclusion 

and requested that we reduce or better 

justify it. In response to public 

comments, we followed up with the 

Navy and requested any additional 

information the Navy could provide 

regarding the size of the area requested 

for exclusion and how the Navy’s 

activities would be impacted by the 

critical habitat designation. 

In its written response, the Navy 

explained that to conduct ICEXs, the ice 

floe must meet strict criteria to support 

a camp and runway, such as thickness, 

lack of pressure ridges for the runway 

portion, and adjacent first-year and 

second-year ice. The Navy stated that 

given the variable nature of Arctic sea 

ice suitable to support the establishment 

of ice camps, the Navy’s ICEX program 

requires flexibility for the area within 

which an ice camp may be established, 

as a location cannot be selected until 

just before the start of ICEX. The Navy 

explained that once established ice 

camps drift long distances (for example, 

as much as 100 miles) due to ocean 

currents and that the requested 

exclusion area ensures that the ice camp 

always remains within the bounds of 

that area for the entirety of ICEX. 

The Navy qualified that because it has 

not consulted with NMFS under section 

7 on Arctic ringed seal critical habitat, 

and because Navy tactics, technologies, 

and training events evolve over time, 

any descriptions of probable impacts to 

military readiness of designating the 

area requested for exclusion are 

necessarily in part theoretical. The Navy 

explained that the specific requirements 

for Navy camps along with the 

ephemeral nature of ice floes 

significantly limits the physical space in 

which Navy activities may occur, even 

apart from avoiding impacts to critical 

habitat. The Navy stated that it is not 

inconceivable that a warming climate 

would further reduce available space 

suitable for the Navy’s activities, and if 

site selection of the camp were further 

constrained—i.e., if Navy had to avoid 

locations in which its activities could 

have adverse impacts on the sea ice 

essential features—a suitable location 

may not be found, and necessitate 

cancellation of an exercise, which 

would result in impacts to Navy 

readiness. The Navy also stated that if 

impacts to the critical habitat were 

determined to be unacceptable in a 

future section 7 consultation, it would 

not be possible to shift ICEX to a 

suitable area not designated as critical 

habitat given the proposed boundaries 

of the designation. The Navy 

emphasized that the area requested for 

exclusion is uniquely suited for Navy 

training and testing in direct support of 

the National Command Authority’s 

National Security Strategy in the Arctic 

region. 

With regard to Office of Naval 

Research activities for which the Navy 

requested the western boundary of the 

proposed exclusion be extended one 

degree west, the Navy explained that 

these research activities include the 

deployment of moored acoustic sources 

that transmit intermittently year-round 

for the purpose of developing 

capabilities of navigating gliders or 

unmanned vehicles that can observe 

effects of climate change. The Navy 

described that the deployment or 

recovery of equipment may involve the 

use of an icebreaking vessel, which may 

remove or break up sea ice suitable for 

ringed seal basking and molting or birth 

lairs. The Navy stated that because 

locations to deploy and recover research 

equipment are pre-selected and there is 

little flexibility, there is similarly little 

to no flexibility in conducting 

icebreaking activities. The Navy 

discussed that for this reason, if NMFS 

required modifications to these research 

activities in a future section 7 

consultation to avoid impacts to the 

critical habitat—such as seasonal or 

spatial avoidance areas or not breaking 

ice which has certain conditions—it 

would have significant impact on these 

activities. The Navy stated that 

understanding changing Arctic 

conditions is critical for maintaining 

U.S. naval effectiveness and ensuring 

national security capabilities. 

We recognize that there are limited 

data currently available to inform our 

evaluation of the conservation value to 

the Arctic ringed seal of the particular 

area requested for exclusion. However, 

we do not think this portion of ringed 

seal habitat contains features that are 

not found throughout the specific area 

designated as critical habitat, nor that 

exclusion would inhibit protection of 

the physical and biological features 

essential to the conservation of the 

species. Therefore, given the Navy’s 

specific justification regarding potential 

impacts of the critical habitat 

designation on its military readiness 

activities that occur within the area 

requested for exclusion, we have 

concluded that the benefits of excluding 

this particular area due to national 

security impacts outweigh the benefits 

of designating this area as critical 

habitat for the Arctic ringed seal. 

Moreover, failure to designate this area 

as critical habitat is not expected to 

result in the extinction of the species 

because the area is small in comparison 

to the entirety of the area we are 

designating as critical habitat, we have 

no reason to believe it is more valuable 

for Arctic ringed seals than other 

portions of the critical habitat based on 

the best information currently available, 

and threats to Arctic ringed seals in this 

area (including habitat-related threats) 

from Federal actions will continue to be 

subject to section 7 consultations. In 

addition, few to no other Federal actions 

are anticipated to occur in this 

particular area that would no longer be 

subject to consultation regarding 

impacts to ringed seal critical habitat if 

this area is excluded. Consequently, we 

are excluding this area from the 

designation of critical habitat for the 

Arctic ringed seal, and we have adjusted 

the critical habitat boundaries 

accordingly. We modified the 

curvilinear southern boundary of the 

exclusion area recommended by the 

Navy to simplify its delineation while 

still including the full area the Navy 

recommended, resulting in a slightly 

larger excluded area (about 0.5 percent 

more area). 


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As explained in the Final Impact 

Analysis Report, the total incremental 

costs associated with designating the 

entire area identified as meeting the 

definition of critical habitat for the 

Arctic ringed seal over the next 10 

years, in discounted present value 

terms, are estimated to be about 

$726,000 (discounted at 7 percent). The 

total incremental costs associated with 

the particular area excluded, which 

stem from administrative costs that 

would have been incurred from adding 

critical habitat analyses to consultations 

on the Navy’s ICEX activities over the 

next 10 years, are estimated to be 

$12,000 (discounted at 7 percent). 

Final Critical Habitat Designation 

We are designating as critical habitat 

a specific area of marine habitat in 

Alaska and offshore Federal waters of 

the Bering, Chukchi, and Beaufort seas, 

within the geographical area presently 

occupied by the Arctic ringed seal. This 

critical habitat area contains physical or 

biological features essential to the 

conservation of Arctic ringed seals that 

may require special management 

considerations or protection. We 

exclude from the designation a 

particular area of marine habitat north 

of the Beaufort Sea shelf that is used by 

the Navy for training and testing 

activities based on our finding that the 

benefits to national security of exclusion 

outweigh the benefits of designation. 

We have not identified any unoccupied 

areas that are essential to the 

conservation of the Arctic ringed seal, 

and thus we are not designating any 

such areas as critical habitat. In 

accordance with our regulations 

regarding critical habitat designation (50 

CFR 424.12(c)), the map we include in 

the regulation, clarified by the 

accompanying regulatory text, 

constitutes the official boundary of the 

critical habitat designation. 

Effects of Critical Habitat Designation 

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

Federal agencies to ensure that any 

action authorized, funded, or carried out 

by the agency is not likely to jeopardize 

the continued existence of any 

threatened or endangered species or 

destroy or adversely modify designated 

critical habitat. Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat as a whole 

for the conservation of a listed species 

(50 CFR 402.02). Federal agencies must 

consult with us on any agency action 

that may affect listed species or critical 

habitat. During interagency 

consultation, we evaluate the agency 

action to determine whether the action 

is likely to adversely affect listed 

species or critical habitat. The potential 

effects of a proposed action may depend 

on, among other factors, the specific 

timing and location of the action 

relative to the seasonal presence of 

essential features or seasonal use of 

critical habitat by listed species for 

essential life history functions. 

Although the requirement to consult on 

an action that may affect critical habitat 

applies regardless of the season, NMFS 

addresses spatial-temporal 

considerations when evaluating the 

potential impacts of a proposed action 

during the ESA section 7 consultation 

process. For example, if an action with 

short-term effects is proposed during a 

time of year that sea ice is not present, 

we may advise that consequences to 

critical habitat are unlikely. If we 

conclude in a biological opinion 

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

that the agency action would likely 

result in the destruction or adverse 

modification of critical habitat, we 

would recommend one or more 

reasonable and prudent alternatives to 

the action that avoid that result. 

Reasonable and prudent alternatives 

are defined in 50 CFR 402.02 as 

alternative actions identified during 

formal consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid the destruction or adverse 

modification of critical habitat. NMFS 

may also provide with the biological 

opinion a statement containing 

discretionary conservation 

recommendations. Conservation 

recommendations are advisory and are 

not intended to carry any binding legal 

force. 

Regulations at 50 CFR 402.16 require 

Federal agencies that have retained 

discretionary involvement or control 

over an action, or where such 

discretionary involvement or control is 

authorized by law, to reinitiate 

consultation on previously reviewed 

actions in instances where (among other 

reasons): (1) Critical habitat is 

subsequently designated; or (2) new 

information or changes to the action 

may result in effects to critical habitat 

not previously considered. 

Consequently, some Federal agencies 

may request reinitiation of consultation 

or conference with us on actions for 

which consultation has been completed 

if those actions may affect designated 

critical habitat for the Arctic ringed seal. 

Activities subject to the ESA section 7 

consultation process include activities 

on Federal lands as well as activities 

requiring a permit or other authorization 

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

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

other Federal action, including funding 

(e.g., Federal Highway Administration 

or Federal Emergency Management 

Agency funding). Consultation under 

section 7 of the ESA is not required for 

Federal actions that do not affect listed 

species or designated critical habitat, 

and is not required for actions on nonFederal and private lands that are not 

carried out, funded, or authorized by a 

Federal agency. 

Activities That May Be Affected by 

Critical Habitat Designation 

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

the maximum extent practicable, in any 

regulation to designate critical habitat, 

an evaluation and brief description of 

those activities that may adversely 

modify such habitat or that may be 

affected by such designation. A variety 

of activities may affect Arctic ringed 

seal critical habitat and, if carried out, 

funded, or authorized by a Federal 

agency, may be subject to ESA section 

7 consultation. Such activities include: 

In-water and coastal construction; 

activities that generate water pollution; 

dredging; commercial fishing; oil and 

gas exploration, development, and 

production; oil spill response; and 

certain military readiness activities. 

Section 7 consultations must be based 

on the best scientific and commercial 

information available, and outcomes are 

case-specific. Inclusion (or exclusion) 

from this list, therefore, does not 

predetermine the occurrence or outcome 

of any section 7 consultation. However, 

as explained above, based on our review 

of prior consultations in the area, we 

have not identified a circumstance in 

which project modifications would be 

necessary solely to avoid impacts to 

Arctic ringed seal critical habitat, as it 

is likely any such modifications would 

also be necessary to avoid impacts to the 

species. 

Private or non-Federal entities may 

also be affected by the critical habitat 

designation if a Federal permit is 

required, Federal funding is received, or 

the entity is involved in or receives 

benefits from a Federal project. These 

activities would need to be evaluated 

with respect to their potential to destroy 

or adversely modify Arctic ringed seal 

critical habitat. For ongoing activities, 

this designation of critical habitat may 

trigger reinitiation of past consultations. 

Although we cannot predetermine the 

outcome of section 7 consultations, we 

do not anticipate at this time that the 

outcome of reinitiated consultations 

would likely require project 


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modifications because habitat-related 

effects on Arctic ringed seals would 

likely have been assessed in the original 

consultation. We are committed to 

working closely with other Federal 

agencies to conduct any reinitiated 

consultations in an efficient and 

streamlined manner to the maximum 

extent possible and consistent with our 

statutory and regulatory requirements. 

Summary of Comments and Responses 

We solicited comments on the revised 

proposed rule to designate critical 

habitat for Arctic ringed seals and the 

associated Draft Impact Analysis Report 

during a 90-day comment period and 

held three public hearings, as described 

above. We also contacted Federal, State, 

Tribal, and local agencies, and other 

interested parties by mail and invited 

them to comment on the revised 

proposed rule, and we issued news 

releases and published notices in local 

newspapers summarizing the revised 

proposed rule and inviting public 

comments. We received fifty unique 

written comment submissions and 

testimony from seven people during the 

public hearings. 

In addition, we solicited peer review 

from three reviewers of our evaluation, 

interpretation, and use of available data 

regarding what areas meet the definition 

of critical habitat in the revised 

proposed rule. The peer reviewers 

generally agreed that we relied on the 

best available data regarding the Arctic 

ringed seal’s habitat requirements and 

generally concurred with our 

application of this information in 

determining specific areas that meet the 

definition of critical habitat, except for 

some particular aspects that we address 

below in our responses to peer reviewer 

comments. We also solicited peer 

review from three reviewers of the 

information we considered in the Draft 

Impact Analysis Report for the proposed 

designation. The peer reviewers found 

the information considered in the Draft 

Impact Analysis Report to be thorough 

and analyzed using appropriate 

methods. Most of the peer reviewers 

provided additional information, 

clarifications, and suggestions to further 

inform and improve the analyses. Some 

peer reviewers provided comments of 

an editorial nature that noted minor 

errors in the revised proposed rule or 

Draft Impact Analysis Report and 

offered non-substantive but clarifying 

changes in wording. We have addressed 

these editorial comments in the final 

rule and the Final Impact Analysis 

Report, as appropriate. Because these 

editorial comments did not result in 

substantive changes to the final rule, we 

have not detailed them here. The peer 

reviewer comments are available online 

(see Information Quality Act and Peer 

Review section). A few peer reviewers 

volunteered comments related to 

aspects of the proposed designation that 

were outside the scope of the requested 

reviews. We address those comments 

below in our responses to public 

comments. 

We have reviewed and fully 

considered all comments and significant 

new information received from peer 

reviewers and the public. Summaries of 

the substantive comments received and 

our responses are provided below. As 

some peer reviewer and public 

comments were similar, we have, in 

certain cases, combined the comments, 

and respond to both the peer reviewer 

and public comments in the Peer Review 

Comments section below. General 

comments that did not provide 

information pertinent to the revised 

proposed rule have been noted but are 

not addressed further here. We have not 

responded to comments or concerns 

outside the scope of this rulemaking, 

such as comments disagreeing with 

NMFS’s prior decision to list the Arctic 

ringed seal as threatened under the ESA. 

Peer Review Comments 

Evaluation of Critical Habitat 

Comment 1: We received comments 

from the three peer reviewers and 

several other commenters related to our 

proposed delineation of the southern 

boundary of critical habitat. Two peer 

reviewers, as well as two other 

commenters, recommended that we 

identify winter-spring Bering Sea ice 

edge foraging habitat of subadults as an 

additional essential feature of Arctic 

ringed seal critical habitat and base the 

southern boundary of critical habitat on 

the position of the ice edge for March or 

April rather than May to include areas 

that contain this feature. These peer 

reviewers and commenters referred to 

information on the movement and dive 

behavior of tagged subadult ringed seals 

in the vicinity of the Bering Sea ice edge 

in winter and spring (Crawford et al. 

2012a, 2019). The peer reviewers further 

noted that the seasonal pattern of 

southern ice edge use by subadults is 

distinct from adults and discussed 

reasons why it may be important habitat 

to this age class, including for winter 

foraging. The third peer reviewer 

commented that our description of the 

findings of Crawford et al. (2012a) 

understated data showing that almost all 

tagged subadults (11 of 12) wintered in 

Bering Sea ice edge habitat (Crawford et 

al. 2019). The peer reviewers and 

commenters stated that the first few 

years of life after seals are weaned are 

an important life history period for 

maintaining the population. 

Response: We thoroughly considered 

the information available on winterspring use of Bering Sea ice edge habitat 

by subadult Arctic ringed seals. 

Regarding our description of the 

findings of Crawford et al. (2012a), our 

intent was not to downplay those data, 

but rather to explain our consideration 

of this information relative to our 

reasoning that the southern boundary of 

the specific area delineated for the sea 

ice essential features is also appropriate 

for defining the southern extent of 

where the primary prey resources 

essential feature occurs. We have 

clarified in the preamble to this final 

rule that almost all of the tagged 

subadult ringed seals monitored during 

the studies cited by the peer reviewer 

overwintered in Bering Sea ice edge 

habitat. The study by Crawford et al. 

(2012) provides information on certain 

aspects of winter-spring habitat in the 

Bering Sea used by tagged subadult 

ringed seals, such as distance to the 

southern ice edge, sea ice concentration, 

and water depth. However, there is 

insufficient information available at this 

time to identify what particular habitat 

characteristics are important 

determinants of subadult ringed seal use 

of such habitat, and to assess how those 

habitat characteristics provide for the 

species’ life history requirements such 

that they are essential to the 

conservation of the Arctic ringed seal. 

We recognize that the survival of 

subadult ringed seals is important to the 

conservation of Arctic ringed seals and 

that subadults may select habitat 

differently than adults. However, the 

comments did not include any 

additional data or specific information 

to describe the physical or biological 

features that characterize this habitat, or 

to evaluate its importance to the 

conservation of the Arctic ringed seal, 

and we are not aware of any such data 

or information. Consequently, we have 

not identified ice edge habitat for 

overwintering subadults as an essential 

feature of Arctic ringed seal critical 

habitat. We note, however, that the ESA 

allows us to consider revising the 

critical habitat designation if, in the 

future, new information becomes 

available that indicates revision may be 

warranted. With regard to identification 

of critical habitat for the primary prey 

resources essential feature, see our 

response to Comment 31. 

Comment 2: One peer reviewer and 

several other commenters stated that 

because Arctic ringed seal whelping 

occurs from mid-March through April it 

would be more appropriate to base the 

southern boundary of critical habitat on 


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the position of the ice edge for March or 

April rather than for May. The 

commenters expressed concern that 

because ice conditions fluctuate, areas 

south of the proposed southern 

boundary may be important for ringed 

seal whelping in some years, with one 

commenter suggesting that the timing of 

life-cycle activities is changing, for 

example basking is sometimes observed 

before May, which they believe also 

supports designating critical habitat 

further south. Two commenters also 

noted that because the seals move with 

the ice as it contracts northward, the 

May ice edge is largely inhabited by the 

same seals that previously occupied the 

ice edge further south. In addition, a 

commenter stated that we should clarify 

our statement that the majority of the 

limited detections of pups during aerial 

surveys of the Bering Sea (conducted in 

2012 and 2013) occurred in Norton 

Sound. The commenter also suggested 

that we seek additional records of 

ringed seals and pups in the Bering Sea 

from Outer Continental Shelf 

Assessment Program (OCSEAP) cruises 

and a bowhead whale survey conducted 

in 1979, and stated that the historical 

presence of whelping ringed seals on 

the Bering Sea ice front in April 

indicates that it served as suitable 

habitat; therefore, discounting April ice 

because of recent deterioration of the ice 

implies that the critical habitat will 

shrink continuously as the ice further 

diminishes. One commenter also stated 

that because it is important to account 

for the habitat needs of young Arctic 

ringed seals that require sea ice for 

molting beginning in mid-April, the 

southern boundary should be based on 

the position of ice edge for March. In 

contrast, the Marine Mammal 

Commission concurred with our use of 

the estimated position of the sea ice 

edge in May to delineate the southern 

boundary of critical habitat. 

Response: We understand the concern 

expressed by the peer reviewer and 

commenters. However, as we explained 

in the revised proposed rule and the 

Specific Areas Containing the Essential 

Features section of this final rule, in 

determining the southern boundary, we 

focused on delineating the southern 

extent of where the sea ice essential 

feature associated with birth lairs is 

found on a consistent basis. We relied 

on this essential feature in determining 

the southern boundary because peak 

molting (for adults) takes place later in 

the spring as sea ice retreats northward, 

and also because the annual extent and 

timing of sea ice is especially variable 

in the southern periphery of the Arctic 

ringed seal’s habitat in the Bering Sea. 

Although April is the peak month for 

ringed seal whelping, snow-covered sea 

ice would need to persist for several 

weeks for pups to be sheltered and 

nursed in birth lairs. Taken as a whole, 

we continue to conclude that 

information available on the spring 

distribution of ringed seals in the Bering 

Sea suggests that the median position of 

the ice edge for May provides the best 

estimate of the southern extent of where 

the birth lair essential feature occurs on 

a consistent basis. We recognize that 

some ringed seals may use sea ice to 

whelp or molt south of the areas we are 

designating as critical habitat, 

depending upon ice conditions in a 

given year. However, as we stated in the 

revised proposed rule and this final 

rule, given the variability in the annual 

extent and timing of sea ice in this 

southernmost portion of the Arctic 

ringed seal’s range in the Bering Sea, 

these waters are unlikely to contain the 

sea ice essential feature on a consistent 

basis in more than limited areas. This 

does not imply that habitat in the Bering 

Sea not included in the designation is 

unimportant to Arctic ringed seals, or 

may not support their conservation. 

Rather, the designation delineates the 

subset of habitat within the area 

occupied by the Arctic ringed seal in 

U.S. waters that meets the definition of 

critical habitat under the ESA based on 

the best scientific data currently 

available, and includes the majority of 

molting and reproductive habitat in the 

Bering Sea. 

Regarding the comments concerning 

our statement in the revised proposed 

rule that the majority of ringed seal 

pups documented during aerial surveys 

were located in Norton Sound, as 

indicated above, this general spatial 

pattern was similarly reported in terms 

of pup densities in the recent 

publication by Lindsay et al. (2021), 

which we reference in this final rule. As 

for the comment concerning additional 

records of ringed seals and pups in the 

Bering Sea, the commenter did not 

provide any specific reference 

information, and we thoroughly 

considered all available evidence on the 

spring distribution of ringed seals in the 

Bering Sea and where they may whelp, 

including information from older 

OCSEAP and other surveys where 

references were readily available. 

Comment 3: One peer reviewer 

commented that quality of Arctic ringed 

seal whelping habitat under climate 

change could be further considered, in 

particular regarding what is considered 

the sufficient depth of snowdrifts for 

birth lairs. The peer reviewer stated that 

it could be surmised that pup survival 

is variably affected by a continuum of 

snow depths, and argued that there is 

insufficient information available to 

establish a specific threshold snowdrift 

depth for the birth lair essential feature. 

The peer reviewer pointed out that the 

few studies that have measured snow 

depths at birth lairs were completed 

several decades ago before the modern 

period of substantial declines in sea ice, 

and noted that because these studies 

were not designed to measure snow 

depth requirements for successful 

whelping, per se, they are not 

necessarily the best source for 

determining a specific threshold 

snowdrift depth for birth lairs. The peer 

reviewer also commented that snow 

accumulation on sea ice is affected by 

several factors that have dramatically 

changed in recent years, for example, 

late formation of sea ice in the fall limits 

snow accumulation that contributes to 

lair construction and maintenance; and 

suggested that in recent years, it is 

possible that somewhat marginal 

whelping habitat is already found in the 

Pacific Arctic region, in the Bering and 

Chukchi seas in particular. Another 

commenter stated that because ringed 

seals will necessarily be faced with 

decreasing snow for birth lairs, we 

should base the minimum snowdrift 

depth for birth lairs on a measurement 

closer to the minimum depths that 

support ringed seal survival. In 

addition, a commenter stated that the 

snow depth data we relied on were 

typically from higher latitudes than the 

Bering Strait region, where habitat 

conditions are very different, and that it 

is well known that on-ice whelping 

occurs in this region. 

Response: We based the minimum 

snowdrift depth for the proposed birth 

lair essential feature on the best 

scientific data available from 

measurements taken at Arctic ringed 

seal birth lairs during studies conducted 

in a number of different locations 

within an 11-year time span to account 

for variability in environmental 

conditions. We recognize that the 

minimum snowdrift depth sufficient for 

birth lairs is unlikely to be a sharp 

threshold, so there may be many cases 

where successful birth lairs are created 

and maintained by ringed seals in 

snowdrifts shallower than that 

minimum depth. We also acknowledge 

that there may be regional and local 

variability in the conditions of sea ice 

habitat used by Arctic ringed seals for 

birth lairs. However, we are not aware 

of available data that would allow us to 

define the birth lair essential feature 

with more specificity on a regional or 

local basis. We note that although we 

considered the average minimum 


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snowdrift depth measured at birth lair 

sites in Alaska, the average from these 

studies is based on data from fewer 

years over a shorter time span than from 

all the available studies combined (see 

Physical and Biological Features 

Essential to the Conservation of the 

Species section) and is more likely to be 

biased if an anomalous weather pattern 

occurred during a more limited 

timeframe. As we indicated in the 

revised proposed rule, given the 

limitations of the best scientific data 

available, for the birth lair essential 

feature, we defined snowdrifts of 

sufficient depth as ‘‘typically’’ at least 

54 cm deep. This wording is to inform 

the reader that the minimum snowdrift 

depth is provided as guidance regarding 

where birth lairs may occur, rather than 

as a specific threshold snowdrift depth. 

With regard to the comment that the 

minimum snowdrift depth should be 

based on the minimum depths that 

support ringed seal survival, we are not 

aware of available scientific data that 

could provide a basis for identifying 

such depths. 

Regarding changes in Arctic ringed 

seal whelping habitat under climate 

change, in the rule listing the Arctic 

ringed seal as threatened under the ESA, 

we recognized that the depths and 

duration of on-ice snow cover are 

projected to decrease substantially 

throughout the species’ range (77 FR 

76706; December 28, 2012). Thus, 

habitat conditions for ringed seal 

whelping are expected to deteriorate 

over time, in particular within the 

southern portion of the species’ range. 

Although we acknowledge that some 

Arctic ringed seals may whelp and/or 

nurse their pups without the protection 

of lairs where snow depths are 

insufficient or lairs have collapsed, 

available data indicate that under these 

circumstances pup mortality is 

substantially higher as a result of 

hypothermia and predation. In addition, 

it is very likely that decreased snow 

cover over birth lairs would leave Arctic 

ringed seal pups more accessible to 

Arctic foxes. Furthermore, both polar 

bears and Arctic foxes would require 

less time to detect and attempt to catch 

Arctic ringed seal mothers and pups 

that are not concealed in birth lairs. 

Predation on pups by gulls and ravens 

is typically prevented by the pups’ 

concealment in subnivean lairs. 

However, when the pups are 

prematurely exposed, predation by birds 

can be substantial (e.g., Lydersen and 

Smith 1989). Alaska Native hunters 

from Kotzebue, Alaska, have similarly 

reported that when snow melts early, 

there is no protection for ringed seal 

pups from predators such as jaegers and 

ravens, as well as foxes (Huntington et 

al. 2017a). 

Comment 4: One peer reviewer 

commented that the average life span of 

ringed seals that we identified is low 

relative to sample collections from the 

subsistence harvest in Alaska between 

2000 and 2019, which indicate that life 

span, as well as reproductively active 

age, is likely longer than 25 years, and 

the reviewer summarized other related 

information (Quakenbush et al. 2020; 

Alaska Depatment of Fish and Game 

(ADF&G), unpublished data). 

Response: We have updated the 

Description and Natural History section 

of this final rule to reflect the peer 

reviewer’s comment regarding ringed 

seal life span and reproductively active 

age. 

Comment 5: One peer reviewer 

commented that our description of the 

‘‘open water foraging period’’ as when 

Arctic ringed seals feed most intensively 

is misleading without further 

explanation, as it implies this is the 

most important period for feeding, 

which is not correct, and recommended 

that the name for this period be 

changed. The peer reviewer stated that 

seasonal changes in ringed seal weight 

and/or blubber reserves documented by 

several studies indicate that ringed seals 

are thinnest in spring and summer and 

that they begin to regain fat stores 

toward the end of the open-water season 

and continuing into winter. In addition, 

the peer reviewer provided information 

on seasonal changes in the dive rate (an 

index of foraging effort) (Crawford et al. 

2019; ADF&G, unpublished data), which 

overall was lower during July– 

September than October–February. The 

peer reviewer suggested that the reason 

why ringed seals are moving more but 

feeding less, or at least gaining little 

weight during the open-water period, 

may be due to what prey are available. 

The peer review noted that Lowry et al. 

(1980a) reported a seasonal switch from 

Arctic cod in winter to invertebrates in 

later summer, and suggested that 

invertebrate prey that are numerically 

more available but patchy in their 

distribution may explain an increase in 

movement and foraging intensity in 

summer without a corresponding weight 

gain. 

Response: To address the peer 

review’s comments, we have revised the 

statement regarding seasonal changes in 

ringed seal blubber reserves in the 

Distribution and Habitat Use section of 

this final rule to clarify that the seals 

lose a significant proportion of their 

blubber mass in late winter to early 

summer, and then replenish their 

blubber reserves during late summer or 

fall and into winter. In addition, in the 

preamble to this final rule we refer to 

the ‘‘open-water period’’ instead of the 

‘‘open-water foraging period.’’ 

Comment 6: One peer reviewer 

commented that we should address a 

new publication by Thometz et al. 

(2021) in our discussion of the ‘‘basking 

period.’’ The peer reviewer noted that 

this study found that there were 

significant, but short-term, increases in 

captive ringed seal resting metabolic 

rate during molt, which is in contrast to 

the finding of Ashwell-Erickson et al. 

(1986) that resting metabolic rate in 

spotted seals decreased during molt. 

The peer reviewer also commented that 

the earlier molt documented for a ringed 

seal kept at local photoperiod in 

California, as compared to two ringed 

seals kept at local photoperiod in 

Alaska, suggests some flexibility in the 

timing of molt. 

Response: We have updated the 

discussion of the basking period in the 

Distribution and Habitat Use section of 

this final rule to incorporate the 

information on ringed seal metabolic 

rate during the molt reported by 

Thometz et al. (2021). We disagree that 

photoperiod-driven molt timing reflects 

flexibility in the process, especially if 

the reviewer meant to suggest that this 

implies ringed seals may be able to shift 

the timing of critical life history 

functions as a way of adapting to earlier 

snow melt and ice breakup. The tight 

linkage between photoperiod and molt 

timing actually suggests a fairly rigid, 

rather than a flexible process, 

constrained by complex, highly evolved, 

long chains of dependence in photochemical and hormonal signaling 

pathways (Walker et al. 2019). In 

addition, photoperiod is not something 

we expect to change with Arctic 

warming (Walker et al. 2019). Therefore, 

we would not expect that the timing of 

molt or other critical life history events 

that are hormonally linked to 

photoperiod to naturally shift to track 

the loss of sea ice and snow cover that 

threaten Arctic ringed seals. Perhaps the 

reviewer meant that molt timing could 

be flexible in the sense that ringed seals 

could move latitudinally to align 

hormonal timing with local snow/ice 

conditions. However, the study by 

Thometz et al. (2021), which used 

ringed seals translocated to captive care 

facilities, doesn’t address the capability 

or likelihood for wild ringed seal 

individuals to relocate their breeding 

and molting areas in response to 

degrading snow/ice habitat; nor does it 

address whether, on a population basis, 

shifts in breeding and molting areas can 

occur as rapidly as suitable habitat is 

anticipated to be lost. 


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Comment 7: One peer reviewer 

suggested adding rainbow smelt to the 

proposed definition of the primary prey 

resources essential feature because 

available diet information for Arctic 

ringed seals in Alaska indicates that this 

fish species has increased in importance 

in the seals’ diets in the 2000s 

(Quakenbush et al. 2011, Crawford et al. 

2015, Quakenbush et al. 2020). In 

addition, another commenter requested 

that euphausiids and mysids be 

identified as primary prey resources 

because they were reported as 

frequently consumed by ringed seals 

near Utqiag ̇vik. A commenter also 

expressed concern that herring was not 

identified as a primary prey species. 

This commenter reported that as a local 

subsistence hunter, they have observed 

ringed seals feeding on herring in bays 

located south of the proposed critical 

habitat, and suggested that it is likely 

this is also the case within the area 

being proposed for designation. In 

contrast, two other commenters stated 

that the best scientific information 

available demonstrates that Arctic 

ringed seals eat a variety of prey and, 

therefore, no particular prey species is 

essential to their conservation. The 

commenters referred to the status 

review of the ringed seal (Kelly et al. 

2010a), which reported that the seals eat 

a wide variety of prey resources 

spanning several trophic levels; and also 

referred to a study by Quakenbush et al. 

(2011), which documented numerous 

prey species in the stomach contents of 

ringed seals, and found that ringed seals 

are consuming a greater diversity of fish 

species than they did historically. 

Response: While we acknowledge that 

Arctic ringed seals have a diverse diet, 

and that Quakenbush et al. (2011) 

reported that the diet of Arctic ringed 

seals in the Alaskan Bering and Chukchi 

seas shifted between the historic and 

recent periods toward a greater 

proportion and diversity of fish during 

the recent period, we do not interpret 

this information as indicating that no 

particular prey species are essential to 

the seals’ conservation. As we discussed 

in the revised proposed rule, the 

available data also indicate that certain 

prey species occupy a prominent role in 

the diets of ringed seals in waters along 

the Alaskan coast. Because the seals 

likely rely on these prey species the 

most to meet their annual energy 

budgets, they are an important habitat 

characteristic that supports the species’ 

conservation. Accordingly, we continue 

to find that primary prey resources to 

support Arctic ringed seals compose an 

essential feature of Arctic ringed seal 

critical habitat. 

We proposed to define primary prey 

resources to support Arctic ringed seals 

as Arctic cod, saffron cod, shrimps, and 

amphipods, based on our assessment of 

the diet information available for ringed 

seals in Alaska from studies that relied 

on stomach content analysis. Our initial 

goal was to identify a small number of 

the most important prey species to 

ringed seals across their range in 

Alaskan waters, and not just important 

in a single region or time period. We 

considered primary prey resources to be 

those particular prey species that were 

commonly consumed by ringed seals in 

more than one region (i.e., Bering, 

Chukchi, and/or Beaufort seas), and for 

studies that reported diet information 

within both an historical and recent 

period, those particular prey species 

that were commonly consumed by 

ringed seals during both periods. 

However, in response to comments 

requesting additional prey species be 

included in the definition of the 

primary prey resources essential feature, 

we re-evaluated the information on 

ringed seal diets in Alaska used to 

support the proposed definition of this 

essential feature, along with new diet 

information provided in a recent report 

cited in the peer reviewer’s comments 

(Quakenbush et al. 2020), to determine 

if revising the definition of this essential 

feature may be appropriate. 

As noted by the peer reviewer, 

evidence from the available diet studies 

indicates that consumption of rainbow 

smelt by ringed seals in Alaska has 

increased since about 2000. The studies 

reported this species as commonly 

consumed (considered here to be prey 

items identified in at least 25 percent of 

ringed seal stomachs): (1) In the Bering 

and Chukchi seas (by non-pup seals) 

during the ice-covered and open-water 

seasons within both the 2016 to 2020 

and 2000 to 2015 periods (Quakenbush 

et al. 2020); (2) in the Chukchi Sea (not 

reported by age class) during the icecovered and open-water seasons within 

the 1998 to 2000 period (Quakenbush et 

al. 2011); and (3) near Shishmaref (pups 

and non-pup seals) during May through 

July (study results were limited to these 

specific months) within the 2003 to 

2012 period (Crawford et al. 2015). With 

regard to the comment requesting 

inclusion of euphausiids and mysids as 

primary prey species, as indicated in the 

revised proposed rule, Dehn et al. (2007; 

Table 2) found that in the Utqiag ̇vik 

vicinity, euphausiids and mysids were 

commonly consumed by ringed seals 

(primarily during summer). However, 

the other diet studies we reviewed did 

not indicate that ringed seals commonly 

consumed euphausiids. Mysids were 

also commonly consumed by pups in 

the Bering and Chukchi seas within the 

2016 to 2020 period during the icecovered season specifically 

(Quakenbush et al. 2020), but they were 

otherwise reported only as prey items 

commonly consumed by ringed seals in 

these regions during the historical 

period evaluated (Quakenbush et al. 

2011, Crawford et al. 2015). Regarding 

the commenter’s concern over Pacific 

herring (Clupea pallasi), this species 

was commonly consumed by non-pup 

seals near Shishmaref during May 

through July within the 2003 to 2012 

period specifically (Crawford et al. 

2015), but for the diet studies we 

reviewed (Lowry et al. 1980b, Frost and 

Lowry 1984, Dehn et al. 2007, 

Quakenbush et al. 2011, Crawford et al. 

2015, Quakenbush et al. 2020), this 

species was not otherwise identified as 

a commonly consumed prey species. 

Still, the commenter is a subsistence 

hunter with knowledge of ringed seals 

feeding on herring near Bristol Bay, and 

we note that IK documented for several 

communities in the Bering Strait and 

northern Bering Sea regions also 

indicates that ringed seals feed on 

Pacific herring, in particular during 

spawning (e.g., Oceana and Kawerak 

2014, Gadamus et al. 2015, Huntington 

et al. 2016, 2017c, 2017b). 

As described in more detail in the 

Physical and Biological Features 

Essential to the Conservation of the 

Species section of this final rule, the 

available information on ringed seal 

diets in Alaska indicate that diet 

composition and the relative 

prominence of certain prey species vary 

both geographically and seasonally, and 

differences in diet between age classes 

(pups and non-pup seals), as well as a 

temporal shift in diet in the Bering and 

Chukchi seas, have been reported. In 

addition, ringed seal diet information 

for the Beaufort Sea is relatively limited. 

We have therefore revised the regulatory 

definition of the primary prey resources 

essential feature to include a description 

of the seals’ most common types of prey, 

which are small, often schooling fishes, 

and small crustaceans, and to identify 

for those types of prey, the prominent 

prey species in the seals’ diets in 

Alaska. We find that this level of 

specificity, naming species known to be 

prominent in Arctic ringed seals’ diet 

but not limiting the definition to only 

those species, is most appropriate for 

defining this essential feature based on 

the best scientific data available. 

Although in the revised proposed rule 

we focused on prey species that were 

commonly consumed in both historical 

and more recent periods for studies that 


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provided this information, given the 

reported increase in occurrence of 

rainbow smelt in the diets of ringed 

seals in the Bering and/or Chukchi seas 

since about 2000, we concluded that it 

is appropriate to identify rainbow smelt 

as a primary prey species, along with 

those primary prey species identified in 

the revised proposed rule (i.e., Arctic 

cod, saffron cod, shrimps, and 

amphipods). Because these prey species 

were prominent in the diets of ringed 

seals in Alaska, we conclude that they 

are essential to the conservation of the 

Arctic ringed seal. Although other prey 

items, such as those that commenters 

requested be identified as primary prey 

species (i.e., euphausiids, mysids, and 

Pacific herring), were reported as 

commonly consumed by ringed seals 

(per the same 25 percent of stomachs 

with contents criterion considered 

above), these reports were more 

spatially and temporally limited. We 

identify the primary prey resources 

essential feature in this final rule as 

follows: Primary prey resources to 

support Arctic ringed seals, which are 

defined to be small, often schooling, 

fishes, in particular, Arctic cod, saffron 

cod, and rainbow smelt; and small 

crustaceans, in particular, shrimps and 

amphipods. 

Comment 8: One peer reviewer 

commented that although there are not 

satellite tracking data available 

indicating ringed seals haul out on land 

during the molt, they likely do not need 

to, because sea ice is available during 

the molting period. The peer reviewer 

noted that four tagged ringed seals 

(three adults and one pup) were 

documented hauled out on land at other 

times (Quakenbush et al. 2019), which 

the reviewer suggested indicates that 

ringed seals could haul out on land to 

molt if necessary. In addition, with 

regard to the discussion of sea ice 

suitable for molting, the peer reviewer 

requested that we add references to 

support the following statement: ‘‘If 

Arctic ringed seals were unable to 

complete their annual molt successfully, 

they would be at increased risk from 

parasites and disease.’’ 

Response: We recognize that Arctic 

ringed seals have sometimes been 

observed hauled out on land, typically 

during the open-water period following 

their annual molt. However, several 

studies (Hamilton et al. 2015, Lone et al. 

2019, Von Duyke et al. 2020) found that 

some tagged ringed seals made long 

excursions offshore to reach sea ice and 

haul out, even when the ice was in areas 

that seemed to be suboptimal for 

foraging or energetically costly to get to. 

This, and the fact that observations of 

ringed seals ashore remain rare, are 

consistent with our conclusion that the 

best scientific data available indicate a 

strong preference by Arctic ringed seals 

to haul out on sea ice during the molt, 

perhaps reflecting fitness tradeoffs such 

as predation risk associated with 

hauling out on shore. With regard to the 

statement concerning risk from parasites 

and disease, it is reasonable to infer that 

if ringed seals’ molt becomes more 

frequently interrupted by being forced 

to spend inordinate amounts of time in 

water while completing their annual 

molt, they could incur increased 

energetic costs and risk microbial 

infections of the skin (Fay et al. 1978). 

We have revised the statement in 

question in the preamble of this final 

rule to reflect this reasoning. 

Comment 9: One peer reviewer felt 

that referring to the median ice edge as 

a ‘‘contour line’’ is somewhat confusing, 

as this term is often used in the context 

of the marine environment to refer to 

bathymetric contours. The peer reviewer 

suggested it might be more 

straightforward to use different 

terminology, e.g., ‘‘the southern 

boundary,’’ or to equate the median May 

ice edge with the nearest bathymetric 

contour to define a more natural 

boundary. 

Response: We have modified the 

language used in this final rule 

preamble to instead refer to the ‘‘line 

representing’’ the sea ice edge. We 

appreciate the suggestion to use the 

nearest bathymetric contour line to 

define the southern boundary of critical 

habitat. However, the depth contours do 

not align well with the position and 

shape of the median May ice edge, so 

we have not based the southern 

boundary of critical habitat for Arctic 

ringed seals on a depth contour. 

Comment 10: In reference to our 

discussion of primary sources of 

potential threats to the essential features 

that may require special management 

considerations or protection, one peer 

reviewer suggested that the analysis by 

Quakenbush et al. (2019) of tagged 

Arctic ringed seal movements relative to 

both oil and gas lease areas in the 

Chukchi and Beaufort seas, and 

shipping traffic in the northern Bering 

and Chukchi seas, could be used to 

describe the temporal overlap of ringed 

seals and these activities. 

Response: We appreciate this 

suggestion. However, our evaluation of 

oil and gas activity and marine shipping 

and transportation as sources of threats 

that may require special management 

considerations or protection focuses on 

potential impacts to each of the 

essential features of Arctic ringed seal 

critical habitat. Because the analysis 

referenced by the peer reviewer does not 

pertain directly to effects of these 

activities on the essential features, we 

have not incorporated the suggested 

information into that evaluation. 

Comment 11: One peer reviewer 

commented that of the four sources of 

potential threats for which we 

concluded the essential features may 

require special management 

considerations or protection (climate 

change, oil and gas activity, marine 

shipping and transportation, and 

commercial fisheries), only oil and gas 

activity and commercial fisheries 

typically have a Federal nexus requiring 

ESA section 7 consultation. The peer 

reviewer stated that although climate 

change is the source of the most serious 

habitat threats, it does not appear to 

lend itself to management that would 

benefit Arctic ringed seals now or in the 

future. Similarly, several other 

commenters asserted that our finding 

that the essential features may require 

special management considerations or 

protection relied on threats that are 

nonexistent or minor compared to 

climate change. Commenters further 

asserted that this finding is not 

consistent with ESA requirements 

because we did not identify any specific 

management considerations or measures 

that would be useful in protecting the 

essential features or identify how such 

measures would be implemented. 

Commenters also stated that existing 

regulatory mechanisms such as the 

MMPA and other Federal, State, and 

local regulatory mechanisms already 

sufficiently protect the species from 

threats and impacts. Two of the 

commenters further asserted that the 

identified essential features do not 

support designation of critical habitat 

because there are no special 

management considerations or 

protections that would be useful in 

protecting these features. 

Response: In accordance with section 

3(5)(A)(i) of the ESA and our 

implementing regulations at 50 CFR 

424.12(b)(1)(iv), we evaluated whether 

each of the essential features ‘‘may 

require special management 

considerations or protection.’’ An 

important word in this statutory phrase 

is ‘‘may.’’ We must show that such 

special management considerations or 

protection may be needed now or in the 

future, not that the habitat features 

definitively will require such 

considerations or protection. Moreover, 

50 CFR 424.02 defines special 

management considerations or 

protection to ‘‘mean any methods or 

procedures useful in protecting the 

physical and biological features of the 

environment for the conservation of 

listed species.’’ In other words, any 


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relevant method or procedure qualifies 

as special management considerations 

or protection. Even if specific 

management measures are presently 

undeterminable, they may become 

determinable in the future because of 

continuing advances in science and 

technology. (See Alaska Oil & Gas Ass’n 

v. Salazar, 916 F. Supp. 2d 974, 990– 

992 (D. AK 2013) (‘‘The Service has 

shown that someday, not necessarily at 

this time, such considerations or 

protection may be required . . . For 

example, the evidence in the record 

showing that sea ice is melting and that 

it will continue to melt in the future, 

perhaps at an accelerated rate, is more 

than enough proof that protection may 

be needed at some point’’), reversed on 

other grounds by Alaska Oil & Gas 

Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 

2016)). Additionally, the question is 

whether the essential features identified 

may require special management 

considerations or protection, not 

whether all threats to those features, 

including climate change, could be 

cured through management. For 

example, if sea ice with snow depths 

suitable for construction of subnivean 

lairs becomes more scarce in the future, 

special management considerations or 

protections for remaining ice may 

become necessary, not to prevent or 

reverse the effects of climate change, but 

to further protect use of the remaining 

essential features. As discussed in detail 

in the Special Management 

Considerations or Protection section of 

this final rule, the ‘‘may require’’ 

standard is met or exceeded with 

respect to each of the essential features 

of Arctic ringed seal critical habitat. 

Draft Impact Analysis Report 

Comment 12: One peer reviewer 

suggested that the analysis of the 

impacts of the critical habitat 

designation could be put into 

perspective by including a brief 

reference to the rate of climate change 

in the Arctic. The peer reviewer 

commented that oil and gas is the 

industry most affected by the critical 

habitat designation, and yet those 

activities are the ones most likely to 

negatively impact the seals, as well as 

other marine resources within the area 

under consideration for designation. 

Another peer reviewer questioned the 

language in the Draft Impact Analysis 

Report that referred to ‘‘long-term 

reductions in sea ice and on-ice snow 

depths expected to occur within the 

foreseeable future,’’ given that rapid sea 

ice loss is already occurring at 

unprecedented rates. This peer reviewer 

advised that the analysis would be 

strengthened and more grounded in 

current science by acknowledging that 

GHG emissions are wholly responsible 

for Arctic sea ice loss. Further, the peer 

reviewer stated that activities that 

release GHGs into the atmosphere are 

‘‘the’’ major contributing factor to 

climate change and sea ice loss, rather 

than ‘‘a’’ factor, as stated in the report. 

The peer reviewer noted that the 

effectiveness of the designation for the 

species’ conservation is, however, most 

dependent on the elimination of GHG 

emissions by mid-century, keeping 

global temperatures from rising beyond 

1.5 °C above pre-industrial levels, and 

consequently minimizing sea ice loss. 

Response: We have incorporated a 

reference to the rate of climate change 

in the Arctic into the Final Impact 

Analysis Report, as suggested by the 

peer reviewer. Although the report 

contains a limited discussion of climate 

change and sea ice loss in the Arctic, we 

discuss this topic in more detail in the 

Special Management Considerations or 

Protection section of this final rule. We 

agree with the peer reviewer’s comment 

that activities that release GHGs are the 

major contributing factor to climate 

change and sea ice loss, and we have 

modified the preamble of this final rule 

and the Final Impact Analysis Report 

accordingly. The critical habitat 

designation can help address potential 

threats to the species’ habitat and 

mitigate the effects of climate change. 

Furthermore, it is possible that actions 

may be taken that could reduce GHG 

emissions and slow the changes in sea 

ice habitat, particularly toward the latter 

part of this century. Arctic ringed seals 

will increasingly experience the impacts 

of habitat alteration stemming from 

climate change and it is therefore 

important to identify and provide 

protection under ESA section 7 for the 

habitat features and areas essential to 

the species’ conservation. 

Comment 13: One peer reviewer 

suggested that it might be informative to 

compare the estimated incremental 

administrative costs of future section 7 

consultations attributable to the critical 

habitat designation with financial data 

(e.g., overall production costs, as well as 

profits) from certain industries, in 

particular the oil and gas industry. The 

peer reviewer commented that other 

industry expenditures associated with 

leasing, exploration, drilling, etc., surely 

must greatly exceed potential 

incremental administrative costs of 

consultations. 

Response: Although the information 

suggested by the peer reviewer could 

provide additional perspective on the 

estimated incremental costs of future 

section 7 consultations for oil and gas 

related activities, we determined that 

the information considered in the Final 

Impact Analysis Report provides 

sufficient context for the analysis. We 

also note that this report includes 

information on average annual receipts 

for oil and gas operations identified as 

potentially subject to future section 7 

consultations addressing the critical 

habitat. 

Comment 14: One peer reviewer 

commented that it is important to 

underscore educational, scientific, and 

non-consumptive use benefits from 

increased public awareness generated 

by the critical habitat designation 

process itself. Similarly, another 

commenter stated that the designation 

process educates managers, state and 

local governments, and the public 

regarding the conservation value of 

critical habitat areas to listed species, 

which can inform management 

decisions, conservation programs, and 

recovery efforts. The peer reviewer also 

suggested that the potential role of 

marine mammals in general as the 

‘‘canary in the coal mine’’ on climate 

change is something useful for scientists 

as well as the general public. In 

addition, the peer reviewer stated that 

the distributional impacts of the 

designation are importantly in favor of 

Alaska Native communities, who 

depend on marine resources for 

subsistence, employment, and income. 

Another peer reviewer commented that 

the discussion of the positive impacts of 

the designation to community resilience 

of underserved Arctic coastal 

communities could be strengthened. 

Response: We agree with the peer 

reviewers and the other commenter that 

the critical habitat designation for the 

Arctic ringed seal can have a number of 

ancillary and indirect economic, 

socioeconomic, cultural, and 

educational benefits, such as those 

described in these comments. Such 

benefits are discussed in detail in 

Section 4 of the Final Impact Analysis 

Report, and additional information 

regarding potential benefits has been 

incorporated into that section of the 

report as appropriate. As discussed in 

this report, all of the types of benefits 

identified are at least partially coextensive with those afforded through 

the ESA listing of the species (i.e., they 

are not attributable solely to critical 

habitat designation). Data are not 

available to determine the extent to 

which such benefits would be 

attributable specifically to critical 

habitat designation. 

Comment 15: One peer reviewer 

stated that while they did not disagree 

with the conclusion in the Draft Impact 

Analysis Report that there are likely 

some incremental benefits from 


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designating critical habitat for the Arctic 

ringed seal, they found it unclear if the 

information in the report supports a 

finding that there is a net benefit (and 

also questioned whether such a finding 

is necessary). The peer reviewer 

suggested that the report clearly set out 

(qualitatively) how the designation 

would result in an incremental change 

in benefits from the baseline (without 

critical habitat). The peer reviewer also 

commented that for some of the benefits 

ascribed to the designation (e.g., support 

of subsistence activities and commercial 

fishing), it would seem there needs to be 

an incremental change in the quality of 

the habitat from the baseline, which 

suggests the designation would result in 

a change to activities that impact the 

critical habitat, even though section 7 

consultations are not expected to result 

in additional project modification 

requests attributable to the designation. 

The peer reviewer suggested that the 

report further characterize the ability of 

the designation to influence the design 

of projects prior to consultation, or 

include additional information 

regarding other ways that the 

designation could result in an 

incremental change in habitat quality. 

Alternatively, the peer reviewer 

suggested focusing on benefits they 

believe have stronger support 

(education, scientific knowledge, 

cultural support, and non-use values 

associated with habitat protection). In 

contrast, another peer reviewer stated 

that the report provided a very thorough 

summary of the expected costs and 

benefits and made a well-grounded 

assessment of the longer-term costs/ 

benefits versus shorter-term costs/ 

benefits. 

Response: The ESA requires us to 

designate critical habitat to the 

maximum extent prudent and 

determinable for threatened and 

endangered species listed under the 

ESA (16 U.S.C. 1533(a)(3)(A)(i)). Section 

4(b)(2) of the ESA requires us to 

designate critical habitat on the basis of 

the best scientific data available after 

taking into consideration the economic 

impact, the impact on national security, 

and any other relevant impact of 

specifying any particular area as critical 

habitat. In addition, section 4(b)(2) 

describes an optional process by which 

we may go beyond the mandatory 

consideration of impacts and weigh the 

benefits of excluding any particular area 

against the benefits of designating it. We 

did not intend to convey in the Draft 

Impact Analysis Report that the ESA 

requires any showing that a designation 

will result in net benefits. We have 

revised the Final Impact Analysis 

Report to better communicate the 

purpose and need for this analysis. In 

addition, in response to the peer 

reviewers’ comments and suggestions, 

we expanded Section 4 of the Final 

Impact Analysis Report to incorporate 

additional details presented in the 

revised proposed rule regarding ways in 

which critical habitat designation for 

the Arctic ringed seal can result in 

incremental benefits. Although we do 

not anticipate modifications to Federal 

actions expressly to avoid impacts to the 

critical habitat as distinct from impacts 

to ringed seals, we note that this does 

not mean such modifications could not 

occur in situations we are unable to 

predict at this time. 

Several non-regulatory benefits are 

expected to result from the designation. 

Critical habitat designation provides 

specific notice to Federal agencies and 

the public of the geographic areas and 

physical and biological features 

essential to the conservation of the 

species, and information about the types 

of activities that may reduce the 

conservation value of the habitat. This 

information will focus future section 7 

consultations on key habitat attributes. 

Designation of critical habitat can also 

inform Federal agencies of the habitat 

needs of the species, which may 

facilitate using their authorities to 

support the conservation of the species 

pursuant to section 7(a)(1) of the ESA, 

including to design proposed projects in 

ways that avoid, minimize, and/or 

mitigate adverse effects to critical 

habitat from the outset. Public 

awareness of critical habitat 

designations may also stimulate 

voluntary conservation actions by the 

public, as well as research, education, 

and outreach activities. 

In addition to the benefits of critical 

habitat to the seals, as detailed in 

Section 4 of the Final Impact Analysis 

Report and summarized in the Benefits 

of Designation section of this final rule, 

other forms of benefits may also accrue. 

These benefits may be economic in 

nature (whether market or non-market, 

consumptive, non-consumptive, or 

passive), educational, cultural, or 

sociological, or they may be expressed 

through beneficial changes in the 

ecological functioning of the species’ 

habitat, which itself yields ancillary 

welfare benefits (e.g., improved quality 

of life) to the region’s human 

population. For example, because the 

designation is expected to result in 

enhanced conservation of the Arctic 

ringed seal over time, residents of the 

region who value these seals, such as 

subsistence hunters, may experience 

indirect benefits. As discussed in 

Sections 4 and 6 of the Final Impact 

Analysis report, although available 

information is insufficient to quantify or 

monetize the benefits of designation, 

they are not inconsequential, and the 

potential incremental economic impacts 

associated with the designation are 

modest both in absolute terms and 

relative to the level of economic activity 

expected to occur in the affected area 

(see Economic Impacts section). 

Public Comments 

Essential Features 

Comment 16: One commenter 

recommended that we omit the 

statement indicating that Arctic ringed 

seals favor landfast ice as whelping 

habitat because it is quite likely that the 

majority of Arctic ringed seals whelp in 

moving ice, even if highest densities 

have been reported in shorefast ice. 

Response: As we noted in the revised 

proposed rule, nearly all research on 

Arctic ringed seal reproduction has been 

conducted in landfast ice, and although 

whelping has been observed on both 

nearshore and offshore drifting pack ice, 

the potential importance of stable but 

drifting pack ice to the species’ 

reproduction has not been adequately 

investigated. In response to this 

comment, we have modified the related 

preamble text to clarify that Arctic 

ringed seals have been ‘‘reported to’’ 

favor landfast ice. 

Comment 17: Two commenters 

suggested that the minimum snowdrift 

depth proposed for the birth lair 

essential feature based on research 

conducted during colder periods may 

not be applicable if temperatures warm 

as projected, and they added that some 

ringed seal populations (e.g., Okhotsk 

subspecies) do not require subnivean 

lairs for pup survival. One of the 

commenters also stated that genetic data 

indicate that ringed seals have 

previously survived warmer periods 

with less snow. 

Response: Like most phocid seals, 

Arctic ringed seals whelp and nurse 

their pups on sea ice. However, snowcovered lairs are particularly important 

for Arctic ringed seal pups given that: 

(1) Arctic ringed seal pups have the 

longest nursing period of any of the 

northern phocid species (about 6 

weeks); and (2) during the period of 

whelping and nursing, Arctic ringed 

seal females and pups are limited in 

their movements, thus making them 

even more vulnerable to predation. 

Further, the Arctic ringed seal is the 

only ice-associated seal that has evolved 

to occupy landfast coastal ice, where 

surface predators are common. When 

snow depth is insufficient, pups can 

freeze in their lairs, as documented in 


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the White Sea by Lukin and Potelov 

(1978). Further, unseasonal warming 

and rains will become increasingly 

common as the climate warms (e.g., 

Hezel et al. 2012), and such events have 

led to high pup mortality when collapse 

of lairs was followed by a return to cold 

temperatures (Lukin and Potelov 1978, 

Stirling and Smith 2004, Ferguson et al. 

2005). Moreover, pups not sheltered in 

lairs would have to expend substantial 

energy reserves to maintain their core 

body temperature in such conditions, 

and would thus be more susceptible to 

other stressors. Pups in lairs with thin 

snow cover are also more vulnerable to 

predation than pups in lairs with thick 

cover (Hammill and Smith 1989, 

Ferguson et al. 2005), and pups not 

sheltered in lairs would be particularly 

vulnerable to predation (see also our 

response to Comment 3). It has been 

reported that when lack of snow cover 

has forced birthing to occur in the open, 

nearly 100 percent of pups died from 

predation (Smith et al. 1991, Smith and 

Lydersen 1991). 

With regard to Okhotsk ringed seals, 

Heptner et al. (1976) pointed out that 

lairs ‘‘can be detected only with the 

help of a dog.’’ Kelly et al. (2010a) 

discussed that they were not aware of 

any attempts to locate subnivean lairs 

using dogs in the Sea of Okhotsk, and 

that the extent to which Okhotsk ringed 

seals rely on lairs is unknown. Further, 

Kelly et al. (2010a) commented that 

unlike Arctic ringed seals, Okhotsk 

ringed seal whelping appears largely 

restricted to areas of drifting pack ice 

where surface predators are relatively 

rare (and polar bears are absent from the 

Sea of Okhotsk), indicating that even if 

Okhotsk ringed seals have less reliance 

on lairs than Arctic ringed seals, such 

differences may be attributable to 

environmental factors rather than 

reflecting a universal ability of ringed 

seals to persist without lairs. The best 

scientific information available would 

suggest the Okhotsk population has 

decreased, but estimates of population 

size are poor (see Kelly et al. 2010a). 

As for species persistence during 

previous warmer periods with less 

snow, we are uncertain what data from 

warm periods or years the commenter is 

suggesting we use instead of the data 

selected, and we are not aware of any 

data from previous warm periods that 

could serve as an appropriate analog for 

current climatic conditions, nor do we 

think considering birth lair depth in 

only the warmest years in the past 

several decades would provide us with 

an appropriate data set. We also note 

regarding warm interglacial periods, 

that we are not aware of any available 

information on ringed seal adaptive 

responses during those periods. A 

fundamental difficulty in using previous 

warm periods as analogs for the current 

climate disruption is that the rate of 

warming in prehistoric periods is poorly 

known. The species’ resilience to those 

previous warming events, which may 

have been slower than the current 

warming, does not necessarily translate 

into present-day resilience. Moreover, 

there may be cumulative effects from 

climate warming and other 

anthropogenic impacts that combine to 

limit the species’ resilience to the 

changes anticipated in the coming 

decades. 

Comment 18: One commenter stated 

that the birth lair essential feature 

should be defined to include natural 

cavities in the sea ice that may also be 

used for birth lairs. The commenter 

further stated that we should also 

expand the definition of the birth lair 

essential feature to recognize the 

importance of subnivean haulouts used 

as resting areas during winter and 

spring. The commenter stated that to 

reflect use of these subnivean haulouts 

as winter resting sites beginning earlier 

in the season, the southern boundary of 

critical habitat should be based on the 

position of the ice edge in March rather 

than in May. 

Response: While we acknowledge that 

Arctic ringed seal birth lairs may 

occasionally occur in natural cavities in 

the sea ice, we do not have data to 

conclude that this habitat is essential to 

the species’ conservation. It has been 

suggested that lairs in such ice cavities 

may provide better protection from 

predators; however, they also provide 

less insulation, and the instability of 

such ice poses the risk of seals being 

crushed (McLaren 1958). As we 

discussed in the revised proposed rule, 

Arctic ringed seals use subnivean lairs 

for resting, as well as for whelping and 

nursing pups. Subnivean lairs used for 

resting have been documented as early 

as December or January in some areas 

(Smith et al. 1991, Williams et al. 2006). 

However, data on ringed seal use of lairs 

(and characteristics of those lairs) prior 

to when seals begin developing and 

occupying birth lairs are quite limited, 

and the conservation importance of lairs 

outside of the whelping and nursing 

period is less understood. In contrast, 

there are substantial data indicating the 

importance of sufficient snow depths for 

birth lairs. As we discussed in response 

to Comments 3 and 17 above, high rates 

of pup mortality due to hypothermia 

and predation have been reported as a 

consequence of inadequate snow cover. 

We therefore focused the subnivean lair 

essential feature of Arctic ringed seal 

critical habitat specifically on birth 

lairs. 

Comment 19: Several commenters 

stated we did not sufficiently justify the 

exclusion of bottom-fast from the sea ice 

essential features. Commenters noted 

that: (1) The bottom-fast ice 

environment fluctuates throughout the 

seasons and the under-ice surface is 

irregular and can facilitate ringed seal 

access to this ice; (2) ringed seals and 

lairs have been observed on bottom-fast 

ice (Martinez-Bakker et al. 2013); (3) 

bottom-fast ice near cracks in the ice 

could provide escape routes for molting 

seals; (4) evidence that ringed seal 

densities are lower in very shallow 

waters does not equate to finding 

bottom-fast ice unsuitable; and (5) the 

exclusion of bottom-fast ice does not 

account for the uncertainty in predicting 

habitat use as climate change continues 

to affect the amount, locations, and 

dynamics of sea ice. One commenter 

also pointed out that the aerial surveys 

conducted by Frost et al. (2004), which 

were referenced in the revised proposed 

rule, did not include ice shoreward of 

the 3-m depth contour, which was 

estimated based on bathymetric charts 

and not actual depth estimates. In 

addition, the commenter noted that 

Moulton et al. (2002a) reported 

inconsistent relationships between seal 

densities and water depths and that they 

suggested that depth effects were 

artifacts of their relationship with ice 

features that, in fact, were driving 

observed differences in density. The 

commenter also described their personal 

experiences with locating subnivean 

lairs and breathing holes in shallow 

water (e.g., lairs formed in snowdrifts 

formed by ice piled on the shoreline), 

including in Elson Lagoon and at Point 

Barrow. Two commenters also noted 

that ringed seal lairs are found along 

shorelines in Lake Saimaa (Niemi et al. 

2019) and Lake Ladoga (Sipila ̈ et al. 

1996, Kunnasranta 2001) and that the 

seals access these lairs in very shallow 

water. 

Response: In response to public 

comments received regarding the sea ice 

essential features relative to bottom-fast 

ice and very shallow nearshore waters 

(see Comment 28), we re-evaluated the 

proposed exclusion of bottom-fast ice 

and how the sea ice essential features 

may be best described relative to very 

shallow nearshore areas. As we 

explained in the revised proposed rule, 

although ringed seals use landfast sea 

ice as whelping habitat, landfast ice 

extending seaward from shore may 

freeze to the sea bottom in very shallow 

waters (typically 1.5 to 2 m deep). In the 

preamble to this final rule, we have 

further explained and clarified that 


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where sea ice is bottom-fast, there 

would presumably be little to no ice-free 

water present that would allow the seals 

to swim under and gain access to the ice 

surface for the construction and 

maintenance of birth lairs, or for basking 

and molting, except perhaps where 

cracks form in the ice, or where the ice 

is not uniformly frozen to or resting on 

the seafloor. Thus, while we 

acknowledge that some ringed seal lairs 

may be found in bottom-fast ice, we 

expect use of bottom-fast ice by Arctic 

ringed seals to be low relative to use of 

ice in deeper waters, and we continue 

to conclude that bottom-fast ice is not a 

component of sea ice that is essential for 

birth lairs or for basking and molting. 

Mapping of bottom-fast sea ice extent 

by Dammann et al. (2019) (based on 

analysis of satellite imagery from spring 

2017) indicated that prominent areas of 

bottom-fast ice in the U.S. Beaufort Sea 

were situated around certain river 

outlets, in particular the Colville River 

Delta, and in a number of lagoons along 

the coast, while in the Chukchi Sea, 

bottom-fast ice was predominantly 

within lagoons. The proposed 

definitions of the sea ice essential 

features therefore qualified that bottomfast ice ‘‘typically’’ occurs in waters less 

than 1.5 to 2 m deep. This wording was 

to inform the reader that the depth 

information was provided as guidance 

regarding where bottom-fast ice might 

be present. 

We reviewed the references cited by 

the commenters and found that they did 

not provide any new information 

regarding the issue of bottom-fast ice or 

very shallow ice-covered waters (i.e., 

less than 2 to 3 m in depth) relative to 

Arctic ringed seal birth lair sites. We 

note that a study of the breeding habitat 

of ringed seals in Lake Saimaa by Sipila ̈

(1990) reported that the water depth 

below birth lair breathing holes in the 

ice at the end of the breeding period (in 

2 years when the water depth in the lake 

was not artificially lowered) during the 

winter was 0.6 to 1.5 m. The author 

explained that the steepness of the shore 

slope was important to allow the seals 

passage when the water level was low. 

We interpret this information as 

indicating that ice was not typically 

bottom-fast where birth lairs were 

constructed. Moreover, in contrast to sea 

ice habitat used by Arctic ringed seals, 

both Saimaa and Ladoga ringed seals are 

confined to large freshwater lakes, and 

as a commenter noted, in Lake Saimaa, 

the only places where snow forms drifts 

deep enough for lairs is along the 

shorelines of islands and islets (Sipila ̈

1990). 

Regarding the comments concerning 

aerial surveys conducted by Frost et al. 

(2004) and Moulton et al. (2002a), we 

have clarified in the preamble to this 

final rule that the lower densities in 

very shallow water reported by Frost et 

al. (2004) were for waters estimated to 

be between 3 and 5 m deep. However, 

we maintain that the results reported for 

both studies provide some evidence that 

ringed seal densities are lower in very 

shallow water, at least in the Alaskan 

Beaufort Sea during late May to early 

June. In particular, Moulton et al. (2002) 

reported that the lowest ringed seal 

densities were observed in waters less 

than 3 m deep in each of the 3 years that 

surveys were conducted and this was 

also reported for similar surveys 

completed in the subsequent 3 years 

(Moulton et al. 2001, Moulton et al. 

2002b, Moulton et al. 2003). As for the 

effects of climate change on the sea ice 

habitat of Arctic ringed seals, we are not 

aware of any available information that 

would provide a basis to conclude that 

bottom-fast ice may in the future 

become an element of sea ice habitat 

that is essential for birth lairs or for 

basking and molting. 

We recognize that some Arctic ringed 

seals may use sea ice in very shallow 

water during the molting and/or 

whelping and nursing periods, as may 

have been the case for some tagged 

ringed seals based on the maps of tagged 

ringed seal movements in the 

publication by Martinez-Bakker et al. 

(2013) (e.g., in Elson Lagoon). However, 

our focus in defining the sea ice features 

is on the habitat attributes that are 

essential to the conservation of Arctic 

ringed seals. As we discuss in the 

Specific Areas Containing the Essential 

Features section of this final rule, 

although the extent of landfast ice that 

becomes bottom-fast over winter varies 

along the coast (e.g., Dammann et al. 

2018), a portion of the landfast ice in 

very shallow waters becomes bottomfast over winter, use of such ice by 

Arctic ringed seals is expected to be low 

relative to use of ice in waters greater 

than 2 to 3 m depth, and there is some 

evidence that Arctic ringed seal 

densities are lower in waters less than 

3 to 5 m deep, at least in the Beaufort 

Sea during late May to early June. After 

considering the available information, 

we have concluded that the sea ice 

essential features are best described 

with respect to very shallow waters in 

terms of minimum water depth, rather 

than with a specific focus on bottom-fast 

ice. Specifically, for the purpose of 

describing the sea ice essential features 

in this final rule, we selected 3 m as the 

minimum water depth for the sea ice 

essential features. 

Comment 20: Two commenters stated 

that the proposed definition of sea ice 

essential for basking and molting is 

overly broad, and does not represent a 

habitat feature that is truly critical to 

Arctic ringed seals. The commenters 

stated that the information cited in the 

revised proposed rule on average ice 

concentrations used by ringed seals 

during the molting period provides 

insufficient evidence for determining 

that sea ice of 15 percent or more 

concentration is essential. One 

commenter also suggested that the 

proposed definition for this essential 

feature is inconsistent with the 

statement in the revised proposed rule 

that a number of studies have reported 

an apparent preference for consolidated 

stable ice (i.e., landfast ice and 

consolidated pack ice). In addition, 

another commenter stated that it is 

unclear why we limited this proposed 

essential feature to areas containing sea 

ice of 15 percent or more concentration, 

as it appears to have no particular 

significance to the behavior of ringed 

seals, and noted that in modeling 

exercises this is the typical threshold for 

where sea ice is considered present. 

Response: As we discussed the 

revised propose rule, there are limited 

data available on sea ice concentrations 

used by Arctic ringed seals for basking 

and molting. As noted by a commenter, 

we stated in the revised proposed rule 

that a number of studies have reported 

an apparent preference for consolidated 

stable ice, at least during the initial 

weeks of the basking period. We also 

explained that some of these studies 

have reported observations of Arctic 

ringed seals hauled out at low densities 

in unconsolidated ice. However, in 

identifying the minimum sea ice 

concentration that is essential for 

basking and molting, we also considered 

information on average ice 

concentrations used by several tagged 

ringed seals in the Chukchi and Bering 

seas during the basking period in June 

reported by Crawford et al. (2012a). This 

information, although limited, provides 

some evidence of ice concentrations 

used by ringed seals as annual sea ice 

melts and recedes north in this region. 

Our selection of 15 percent minimum 

ice concentration for this essential 

feature is consistent with those average 

ice concentrations when taking into 

account the standard errors (SEs) of the 

averages. We have clarified this 

reasoning in the preamble to this final 

rule. As we noted in the revised 

proposed rule, Arctic ringed seals in the 

Chukchi Sea have been observed 

basking in high densities on the last 

remnants of the seasonal sea ice during 

late June to early July, near the end of 

the molting period (S. Dahle, NMFS, 


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personal communication, 2013), which 

comports with our selection of this 

minimum ice concentration. The 

minimum sea ice concentration 

specified as essential for basking and 

molting reflects the habitat requirement 

that some sea ice is present during 

basking and molting that can be used as 

a haulout platform. We acknowledge 

that the sea ice concentration identified 

for this essential feature is based upon 

limited information. However, we are 

not aware of any additional information 

that would support refinement of the 

regulatory definition of this essential 

feature. Therefore, in this final rule, we 

continue to define sea ice habitat 

essential for basking and molting as 

areas containing ice of at least 15 

percent concentration, as this is the 

level of specificity supported by the best 

scientific data available at this time. 

Comment 21: One commenter stated 

we should identify acoustic conditions 

that allow for effective communication 

for predator avoidance and breeding 

activities as an additional essential 

feature, and provided information and 

references concerning ringed seal 

vocalizations and the potential impacts 

of noise on ringed seals. The commenter 

noted that an essential feature 

addressing acoustic conditions was 

included in the proposed critical habitat 

designation for bearded seals because 

communication plays an important role 

in that species’ reproduction, and 

suggested that this is also the case for 

ringed seals. The commenter argued that 

inclusion of an acoustic essential feature 

for ringed seals is justified because 

available evidence indicates that ringed 

seals increase their vocalizations during 

the breeding season, rely on quiet and 

cryptic calls for communication that 

could be easily masked by 

anthropogenic noise, and are known to 

display avoidance behaviors and 

abandon breathing holes and lairs in 

response to noise disturbance. Another 

commenter more generally questioned 

why we did not discuss the importance 

of ringed seal vocalizations in social 

behavior and of their hearing in 

navigation with respect to the potential 

for masking by human activities in our 

evaluation of whether special 

management considerations or 

protection may be required. 

Response: Although vocalizations 

may play a role in the reproductive 

behavior of Arctic ringed seals, in 

contrast to bearded seals, little is known 

about the behavioral and ecological 

contexts of vocalization or the ranges 

over which the seals communicate. 

Given the limited scientific 

understanding, we find that 

identification of an essential feature 

addressing acoustic conditions for 

effective communication by Arctic 

ringed seals is not warranted at this 

time. However, in our evaluation of 

sources of threats to the essential 

features of Arctic ringed seal critical 

habitat that may require special 

management considerations or 

protection, we identified acoustic effects 

among the threats to the quantity and/ 

or quality of the essential features. We 

agree with the commenters that acoustic 

conditions that allow for effective 

communication and other uses of sound 

by Arctic ringed seals are important for 

the conservation of the species. We will 

continue to consider and address the 

effects of anthropogenic noise on Arctic 

ringed seals in consultations under 

section 7 of the ESA. The critical habitat 

designation will result in the additional 

requirement that Federal agencies 

evaluate any relevant impacts of noise 

on the essential features of Arctic ringed 

seal critical habitat. 

Comment 22: One commenter stated 

that we should identify habitat for 

seasonal movements of Arctic ringed 

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

essential feature, given that tracking 

studies have confirmed that the seals 

make large-scale seasonal movements 

that track sea ice conditions and prey 

resources. The commenter stated that 

we should overlay information from 

ringed seal telemetry studies off Alaska 

with the critical habitat map to ensure 

that important migratory and dispersal 

habitat falls within the critical habitat 

boundaries, and then include such 

habitat as a separate essential feature. 

Response: We recognize that 

telemetry data for tagged Arctic ringed 

seals document seasonal movements 

that for many individuals appear to 

generally track changes in sea ice 

conditions, and as the commenter 

noted, they can make large-scale 

seasonal movements. However, as we 

discussed in the proposed rule, the 

information available on movements 

and diving behavior of Arctic ringed 

seals tagged in Alaska indicates that 

although the seals may forage seasonally 

in some particular areas, they also make 

extensive use of a diversity of habitats 

for foraging across much broader areas 

in the Bering, Chukchi, and Beaufort 

seas. Based on the best scientific data 

available, we are unable to identify 

physical or biological features that 

define habitat used for seasonal 

movements specifically. Therefore, we 

did not identify such habitat as an 

essential feature of the species’ critical 

habitat. We note, however, that the late 

spring to early summer time period 

during which Arctic ringed seals use sea 

ice habitat essential for basking and 

molting coincides with when the sea ice 

edge retreats northward. Thus, there is 

some temporal overlap between when 

this essential feature is used by Arctic 

ringed seals and seasonal movements of 

those seals that follow the receding ice 

edge northward. 

Comment 23: Two commenters stated 

that the essential features and expansive 

area proposed for designation do not 

account for the observed flexibility and 

resilience of Arctic ringed seals 

regarding lair-site selection and fidelity, 

their wide-ranging movements, and 

their broad dietary preferences and 

behavior, due to widely variable 

conditions from year to year regardless 

of climate change. One commenter 

further stated that ringed seals are not 

habitat limited, which along with their 

demonstrated ability to adapt to a 

variety of conditions, supports the 

conclusion that there is no single type 

of habitat used by ringed seals that is 

essential to their conservation. 

Response: We are not aware of 

available information documenting 

observed flexibility in selection of 

breeding habitat relative to natal site 

fidelity. However, we acknowledge that 

Arctic ringed seals can make large-scale 

movements, have diverse diets, inhabit 

a range of sea ice conditions, and give 

birth and nurse pups in both landfast 

and pack ice. Nevertheless, as discussed 

elsewhere in this final rule, ringed seals 

require stable sea ice with snowdrifts of 

sufficient depths for the formation and 

maintenance of subnivean birth lairs, 

sea ice that provides a platform for 

basking and molting, and primary prey 

resources to support their energetic 

requirements. We continue to find, 

based on the best scientific data 

available, that these physical or 

biological features are essential to the 

conservation of the species (see Physical 

and Biological Features Essential to the 

Conservation of the Species section), 

and that each of these essential features 

may require special management 

considerations or protection as a result 

of impacts from four primary sources of 

threats (see Special Management 

Considerations or Protection section). 

We disagree with the assertion that no 

specific types of habitat should be 

considered essential because Arctic 

ringed seals are not ‘‘habitat limited.’’ 

The ESA defines critical habitat within 

the geographical area occupied by the 

species in terms of essential physical 

and biological features, and the 

associated regulations require us to 

focus on those features in the 

designation process. Those habitat 

features need not be impaired or 

limiting to be used to designate critical 

habitat. The relevant considerations are 


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whether they provide an essential 

function to the conservation of the listed 

species and may require special 

management considerations or 

protection. 

Specific Areas 

Comment 24: We received a number 

of comments that expressed support for 

the proposed designation, and several 

commenters including the Marine 

Mammal Commission, Kawerak, and 

Maniilaq Association, indicated that 

they concurred that the proposed 

critical habitat contains the physical 

and biological features essential to the 

conservation of the Arctic ringed seal. 

Response: We acknowledge these 

comments. We note that we made some 

changes to the revised proposed 

designation, which are described in the 

Summary of Changes From the Revised 

Proposed Designation section of this 

final rule. 

Comment 25: Several commenters 

stated that the proposed designation is 

overbroad because it includes most of 

the geographical area occupied by 

Arctic ringed seals within the U.S. EEZ. 

The commenters asserted that as such, 

the proposed designation is inconsistent 

with congressional intent and the ESA 

requirement that critical habitat not 

include the entire geographical area 

occupied by the species. The 

commenters also referred to the 

Supreme Court ruling in Weyerhaeuser 

Co. v. U.S. Fish & Wildlife Serv., 139 S. 

Ct. 361, 368 (2018), in which the court 

stated that critical habitat is a subset of 

habitat, and stated that this indicates 

critical habitat must be designated more 

narrowly to include only those specific 

areas where the essential elements 

presently required for survival of the 

species are located. 

In addition, the commenters stated 

that the revised proposed rule did not 

provide scientific data demonstrating 

with any specificity that the entirety of 

the area proposed for designation 

actually contains one or more of the 

identified essential features. ADF&G 

suggested that in the revised proposed 

rule, the description of the essential 

features as dynamic and variable on 

both temporal and spatial scales, and 

related language stating that critical 

habitat was identified based on the 

expected occurrence of the essential 

features, indicates that we identified the 

specific area proposed for designation 

without supporting data identifying the 

location of the essential features. They 

stated that although the designation is to 

be done at a scale determined by the 

Secretary, the proposed designation, at 

a huge scale, stretches the bounds of 

what is reasonable. They referred to the 

revised designation of critical habitat for 

North Atlantic right whales as an 

example of a designation that is 

compact and targeted relative to the 

species’ range, even though it expanded 

the designated critical habitat. They also 

pointed to the critical habitat 

designation for North Pacific right 

whales as an example of a designation 

that they described as similarly compact 

and targeted, despite an acknowledged 

lack of data. They went on to assert that 

we did not fully analyze the report they 

provided on Arctic ringed seal 

movements (Quakenbush et al. 2019) as 

a primary source of spatial data. They 

stated that we should make the best use 

of all the available data to delineate the 

most essential areas within a species’ 

range, and that we instead 

overcompensated for lack of data or 

difficulty in determining where 

essential feature are located by 

proposing an overly expansive 

designation. They also contended that 

based on statutory language, NMFS’s 

goal must be to identify and designate 

those specific areas that demonstrably 

contain the highest value physical and 

biological features for the species. 

Related comments stated that 

establishing priority habitat areas for 

designation would be more manageable 

and efficient. 

Response: Under the ESA, a specific 

area qualifies as critical habitat if it was 

occupied by the species at the time of 

listing and contains one or more of the 

physical or biological features essential 

to the conservation of the species and 

that may require special management 

considerations or protection. Specific 

areas are eligible for designation if they 

meet these criteria. Our regulations 

clarify that the geographical area 

occupied by the species may include 

those areas used throughout all or part 

of the species’ life cycle, even if not 

used on a regular basis (e.g., migratory 

corridors, seasonal habitats, and habitats 

used periodically, but not solely by 

vagrant individuals; 50 CFR 424.02). 

Further, physical or biological features 

may include habitat characteristics that 

support ephemeral or dynamic habitat 

conditions, and thus, they need not be 

present throughout critical habitat at all 

times. 

We have long interpreted 

‘‘geographical area occupied’’ in the 

definition of critical habitat to mean the 

entire range of the species at the time it 

was listed, inclusive of all areas the 

species uses and moves through 

seasonally (45 FR 13011, February 27, 

1980). Further, in Arizona Cattle 

Grower’s Assoc. v. Salazar, 606 F.3d 

1160 (9th Cir. 2010), the Ninth Circuit 

affirmed the interpretation of USFWS 

that ‘‘occupied’’ areas means areas that 

the species uses with sufficient 

regularity such that it is likely to be 

present during any reasonable span of 

time. As we discuss in the Geographical 

Area Occupied by the Species section of 

this final rule, based on the best 

scientific data available, the range of the 

Arctic ringed seal was identified in the 

final ESA listing rule (77 FR 76706; 

December 28, 2012) as the Arctic Ocean 

and adjacent seas, except west of 157° 

E long. (the Kamchatka Peninsula), 

where the Okhotsk subspecies of the 

ringed seal occurs, or in the Baltic Sea 

where the Baltic subspecies of the 

ringed seal is found. We cannot 

designate areas outside U.S. jurisdiction 

as critical habitat. Thus, the 

geographical area that was under 

consideration for this designation was 

limited to areas under the jurisdiction of 

the United States that Arctic ringed 

seals occupied at the time of listing. 

This occupied area extends to the outer 

boundary of the U.S. EEZ in the 

Chukchi and Beaufort seas, and as far 

south as Bristol Bay in the Bering Sea. 

We acknowledge that critical habitat 

constitutes a subset of what qualifies as 

‘‘habitat’’ for a particular species. See 

Weyerhaeuser v. U.S. Fish and Wildlife 

Serv., 139 S. Ct. 361 (2018). Consistent 

with the definition of critical habitat 

under the ESA and based on the best 

scientific data available, the specific 

area designated as critical habitat for the 

Arctic ringed seal in this final rule 

contains the physical and biological 

features identified as essential to the 

conservation of the Arctic ringed seal 

and that may require special 

management considerations or 

protection. This critical habitat is a 

subset of the habitat occupied and used 

by Arctic ringed seals in U.S. waters, 

and it is also a subset of the much larger 

circumpolar habitat occupied and used 

by this species. Moreover, because all of 

the Arctic ringed seal’s critical habitat is 

currently occupied by the species, the 

Supreme Court’s decision in 

Weyerhaeuser v. U.S. Fish and Wildlife 

Serv. (139 S. Ct. 361 (2018))—which 

held in the context of unoccupied 

habitat that an area must logically be 

‘‘habitat’’ in order to meet the narrower 

category of ‘‘critical habitat’’ as defined 

under the ESA—is not directly relevant 

to the designation of critical habitat for 

Arctic ringed seals. Specific areas that 

are occupied by a species are inherently 

‘‘habitat.’’ 

Delineation of specific areas that 

contain essential features is done at a 

scale determined by the Secretary (of 

Commerce) to be appropriate (50 CFR 

424.12(b)(1)). In making decisions about 

the appropriate scale and boundaries for 


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the specific area we are designating as 

critical habitat, we considered, among 

other factors, the life history of the 

species and the scales at which data are 

available to inform our analysis. The 

seasonality of sea ice cover strongly 

influences the movements, foraging, and 

reproductive behavior of Arctic ringed 

seals, and the dynamic variations in sea 

ice and on-ice snow depths result in 

individuals distributing broadly and 

using sea ice habitats within a range of 

suitable conditions. Therefore, our 

delineation of critical habitat for the 

Arctic ringed seal reflects the 

considerations described elsewhere in 

this final rule regarding the variability 

in the spatial and temporal distributions 

of the essential features, in particular of 

the sea ice essential features, the overlap 

in timing of whelping and nursing with 

basking and molting, the widespread 

distribution of Arctic ringed seals using 

the essential features, and the spatial 

scale of the seals’ movements in 

utilizing their habitat. 

In that regard, our approach is similar 

to the USFWS’s designation of critical 

habitat for polar bears. Recognizing that 

sea ice is dynamic and highly variable 

on both temporal and spatial scales, and 

that polar bear use of specific areas of 

sea ice habitat varies daily and 

seasonally, the extent of the continental 

shelf within the area occupied by the 

polar bear in the United States was 

identified as the sea ice critical habitat 

unit containing the essential sea ice 

feature (75 FR 76086, December 7, 2010) 

(this designation was challenged and 

ultimately upheld by the Ninth Circuit, 

see Alaska Oil & Gas Ass’n v. Jewell, 

815 F. 3d 544, 555–62 (9th Cir. 2016)). 

For Arctic ringed seal critical habitat, 

the essential features are dynamic, and 

we identified where one or more of 

these essential features occurs at a 

coarse scale with as much specificity as 

the best scientific data available allows 

(see Specific Areas Containing the 

Essential Features section). 

As stated above, under the ESA, an 

area qualifies as critical habitat if, based 

on the best scientific data available, it 

was occupied by the species at the time 

of listing and contains one or more of 

the physical or biological features 

essential to the conservation of the 

species and that may require special 

management considerations or 

protection. Specific areas are eligible for 

designation if they meet these criteria. 

Neither the ESA’s definition of critical 

habitat nor our implementing 

regulations at 50 CFR part 424 restrict 

critical habitat to only the most 

important core habitats of the species. 

Further, where, as here, one or more 

essential features are not static, and 

their location changes both seasonally 

and annually, a critical habitat 

designation must be large enough to 

account for such changes in the 

locations of essential features and the 

particular species’ habitat requirements 

throughout their life history, as 

discussed above. Following thorough 

consideration of the peer reviewer and 

public comments and information 

submitted, we conclude, based on the 

best scientific data available, including 

the information reported by 

Quakenbush et al. (2019), that the 

specific area we are designating as 

critical habitat most accurately 

identifies where the physical and 

biological features essential to the 

conservation of the Arctic ringed seal 

occur. We acknowledge that this 

designation is much larger than the 

designations for the North Atlantic right 

whale and the North Pacific right whale. 

Each critical habitat designation reflects 

consideration of the best scientific data 

available at the time of designation 

regarding the particular species and its 

habitat characteristics and requirements. 

Comment 26: One commenter stated 

that designating critical habitat on a 

seasonal basis, or on a dynamic basis 

that reflects changing conditions seems 

at odds with the structure and mandates 

of the ESA, which specifies that critical 

habitat should include all areas that are 

essential to the conservation of a listed 

species and that federal agencies are 

under a continuing obligation to consult 

with NMFS if any action they authorize, 

fund, or carry out may affect critical 

habitat; thus temporal considerations 

should be considered during section 7 

consultations. 

Response: We agree with this 

comment. 

Comment 27: Several commenters 

stated that critical habitat should be 

designated on a seasonal basis to reflect 

the specific times and places in which 

the essential features are used by Arctic 

ringed seals for critical life functions. 

Some commenters contended that the 

revised proposed rule would ‘‘overdesignate’’ critical habitat and rely on 

subsequent section 7 consultations as a 

means to refine what constitutes critical 

habitat, which they stated would 

effectively remove the designation from 

notice and comment rulemaking and 

shift the burden of designation 

decisions to the consultation process. 

BOEM specifically recommended that 

we identify continental shelf waters 

deeper than 3 m as critical habitat used 

in summer and fall, and shorefast ice in 

waters deeper than 3 m as critical 

habitat used in winter and spring. In 

addition, another commenter suggested 

that the designation incorporate a 

dynamic spatial-temporal element that 

would roll back the boundaries 

northward as sea ice recedes seasonally 

or over longer periods to respond to 

changes in habitat conditions due to 

climate change. 

Response: The ESA focuses on the 

spatial presence of the essential features 

within occupied areas, but does not 

mention the temporal presence of those 

features. Under the ESA’s definition of 

critical habitat, if an area is occupied by 

a listed species and one or more 

essential features can be found in that 

area, even if the features are present 

only seasonally, then that area qualifies 

as critical habitat. The statute does not 

allow critical habitat designations to 

fluctuate seasonally, nor does it specify 

that critical habitat must contain any 

particular essential feature at all times. 

In addition, our implementing 

regulations at 50 CFR 424.12(c) specify 

that ephemeral reference points cannot 

be used to clarify or refine the 

boundaries of critical habitat. A 

dynamic boundary based on seasonal 

presence of the essential features would 

be inconsistent with this requirement. 

Moreover, even if seasonal designations 

of critical habitat were authorized under 

the ESA or the implementing 

regulations, such designations could 

potentially miss an important aspect of 

critical habitat: The protection afforded 

by designation even when the species 

may not be present, thus ensuring that 

Federal actions are not likely to 

adversely modify or destroy critical 

habitat that is important to support 

essential life history functions during 

particular times of the year. 

The size of the critical habitat 

designation is in no way related to 

shifting any burdens to the section 7 

consultation process. Where, as here, 

one or more essential features are not 

static, and their location changes both 

seasonally and annually, a critical 

habitat designation must be large 

enough to account for such changes in 

the locations of essential features and 

the particular species’ habitat 

requirements throughout their life 

history. The potential effects of a 

proposed Federal action depend on, 

among other factors, the specific timing 

and location of the action relative to 

seasonal presence of essential features 

or seasonal use of critical habitat by 

listed species for essential life history 

functions. It is therefore common 

practice in consultations under section 

7 of the ESA to address spatial-temporal 

considerations as part of the analysis of 

how a particular Federal action would 

impact the conservation value of critical 

habitat, and these considerations can be 

effectively addressed for such analyses 


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involving Arctic ringed seal critical 

habitat. It is likely that most Federal 

actions that would occur outside the 

time periods when the sea ice essential 

features are present would not adversely 

affect those features. However, some 

actions that temporally avoid the 

presence of non-static essential features 

such as sea ice may still impact the 

habitat that Arctic ringed seals use or 

occupy. For example, the construction 

of an offshore artificial island when sea 

ice is not present could still render 

some Arctic ringed seal habitat unusable 

after the construction of the project. 

Thus, during consultation, NMFS 

considers the particular set of facts 

relevant to that consultation, such as the 

nature of the activities being conducted, 

the location of the action, and the 

spatial and temporal scale, in order to 

determine the potential effects of the 

activity on critical habitat and 

ultimately, whether the activity is likely 

to destroy or adversely modify critical 

habitat. 

Regarding BOEM’s specific comment 

pertaining to the shoreward and 

northern boundaries of Arctic ringed 

seal critical habitat, also see our 

responses below to Comments 31 and 37 

for further information on the 

shoreward and northern boundaries of 

critical habitat identified in this final 

rule. 

Comment 28: One commenter stated 

that because shorefast ice frequently 

freezes to thicknesses of 2 to 3 m deep 

and into the seabed, use of the 3-m 

isobath as the shoreward limit would be 

a practical depth to demarcate areas that 

seals do not use in winter and spring. 

Another commenter similarly stated that 

ice-covered waters shallower than 3 m 

should not be included as critical 

habitat because ringed seals cannot 

overwinter there due to ice freezing to 

the seafloor and poor prey availability 

caused by the limited amount of ice-free 

water, as indicated in a 2006 notice of 

an application for an incidental 

harassment authorization issued by 

NMFS (71 FR 9782, February 27, 2006). 

The commenter also noted that NMFS 

recently stated in issuing incidental take 

regulations that habitat is not suitable 

for ringed seal lairs where water depth 

is less than 3 m (85 FR 83451, December 

22, 2020). In addition, one commenter 

asserted that for the sea ice essential 

features, we need to explain how 

nearshore areas are as important as 

habitats in deeper waters and provide 

evidence that demonstrates the 

nearshore area has conservation value as 

critical habitat, including those shallow 

water areas where the ice is 

predominantly grounded in winter, 

stating that only a small segment of the 

ringed seal population uses shallow 

nearshore ice habitat in the Beaufort Sea 

for birth lairs. 

Response: Regarding sea ice in waters 

less than 3 m deep, as we stated in the 

revised proposed rule and in our 

response to Comment 19, the best 

information currently available 

indicates that where bottom-fast ice 

forms, it is predominantly in waters less 

than 1.5 to 2 m deep, though the extent 

of bottom-fast ice along the Alaska coast 

varies (see Dammann et al. 2019). Public 

comments we received regarding sea ice 

in shallow nearshore areas led us to reevaluate the proposed descriptions of 

the sea ice essential features, under 

which certain waters may or may not 

have qualified as critical habitat 

depending on whether bottom-fast ice 

was present. As a result, we have 

concluded that these essential features 

are best described by specifying a 

minimum water depth of 3 m, which 

has the effect of excluding waters likely 

to contain bottom-fast ice (see our 

response to Comment 19). 

In the revised proposed rule, the 

shoreward boundary of critical habitat 

was defined as the line of MLLW, 

principally based on occurrence of the 

primary prey resources essential feature, 

rather than on the sea ice essential 

features. However, as detailed below in 

the section Summary of Changes From 

the Revised Proposed Designation, after 

revising the proposed definitions of the 

essential features, and in response to 

public comments such as these that 

expressed concerns about our proposed 

delineation of the boundaries of critical 

habitat with respect to the primary prey 

resources essential feature, we reevaluated the best scientific data 

available and the approach we used to 

identify the specific area(s) that contain 

this feature (see also our response to 

Comment 31). We now identify a single 

specific area that contains all of the 

essential features based on our 

delineation of the boundaries for the sea 

ice essential features. Because we have 

revised the definitions of the sea ice 

essential features to identify the 

minimum water depth for both features 

as 3 m (relative to MLLW), we identify 

the shoreward boundary of Arctic 

ringed seal critical habitat as the 3-m 

isobath (relative to MLLW), consistent 

with this minimum water depth. As for 

the comment about the relative 

conservation value of shallow nearshore 

areas with respect to the sea ice 

essential features, any area occupied by 

the species may be designated as critical 

habitat if it contains one or more of the 

physical or biological features essential 

to the conservation of the species and 

that may require special management 

considerations or protection. We 

determined that all of the essential 

features occur in waters 3 m or more in 

depth, and therefore nearshore waters 

seaward of the 3-m isobath are properly 

designated as critical habitat. 

Comment 29: One commenter stated 

that critical habitat should be delineated 

as the specific areas of landfast ice 

extending from the 3-m isobath to the 

20-m isobath, which the commenter 

suggested provides optimal habitat for 

ringed seal lairs and pupping. The 

commenter referenced the observed 

densities of Arctic ringed seals on 

landfast ice in the Beaufort Sea (Frost et 

al. 2002, Moulton et al. 2002b), in 

conjunction with studies of landfast ice 

extent in the western Beaufort Sea 

(Mahoney et al. 2005, Mahoney et al. 

2007). However, the commenter stated 

that based on a study in the East 

Siberian Sea by Morris et al. (1999, as 

summarized in Mahoney et al. 2007) a 

transitional ice zone occurs between 

landfast and pack ice, which is more 

variable in depth, consistency, and 

distribution. The commenter stated that 

areas of transitional ice should be 

excluded from critical habitat because it 

is marginally valuable for ringed seal 

survival and conservation and as such, 

it is not essential to the conservation of 

the species nor does it require special 

management considerations or 

protection. The commenter also pointed 

out that although the revised proposed 

rule acknowledges little research has 

been conducted on Arctic ringed seals 

in offshore pack ice, the northern 

boundary of critical habitat was 

nonetheless defined as the outer 

boundary of the U.S. EEZ. The 

commenter further stated that as 

indicated in the revised proposed rule, 

during summer, most ringed seals spend 

a majority of their time foraging offshore 

near pack ice (Frost 1985), and Von 

Duyke et al. (2020) also reported that 

most ringed seals tagged during a recent 

study were documented north of the 

shelf with retreating pack ice. 

Response: With regard to sea ice for 

lairs and pupping, as discussed in more 

detail in the Physical and Biological 

Features Essential to the Conservation of 

the Species section of this final rule, 

pup production has been reported in 

both landfast ice and pack ice. 

Moreover, surveys conducted in the 

Bering and Chukchi seas have 

documented ringed seals, including 

observations of pups, in nearshore and 

offshore areas. We therefore determined 

that snow-covered sea ice essential for 

birth lairs consists of both landfast ice 

and dense, stable pack ice. We defined 

the seaward boundaries of critical 

habitat with respect to the sea ice 


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essential features based on the 

occurrence of the features themselves. 

The commenter did not provide, and we 

are not aware of, information on Arctic 

ringed habitat use relative specifically to 

what the commenter referred to as 

‘‘transitional ice.’’ Also, regarding the 

commenter’s reference to the 20-m 

isobath relative to landfast ice, we note 

that although the stable location of the 

seaward landfast ice edge in the 

Beaufort Sea has been reported to 

coincide with near the 20-m isobath, the 

seaward landfast ice edge in the 

Chukchi and northern Bering Seas is 

closer to shore and the water depth is 

more variable (Mahoney et al. 2014, 

Jensen et al. 2020). As for ringed seal 

habitat use during the open-water 

period relative to pack ice, while it is 

thought that most Arctic ringed seals 

spend the summer in the pack ice of the 

northern Chukchi and Beaufort seas, the 

seals are also dispersed in ice-free areas 

of the Bering, Chukchi, and Beaufort 

seas. Tracking data indicate that ringed 

seals tagged in Alaska made extensive 

use of nearshore and offshore waters 

over the continental shelf in the U.S. 

Chukchi and Beaufort seas during the 

open-water period. 

Comment 30: The Bureau of Land 

Management (BLM) stated that we 

should develop more detailed critical 

habitat maps that identify seasonal 

presence/absence of each essential 

feature in both nearshore and offshore 

waters to provide clarity regarding 

where each essential feature is found, 

rather than designating critical habitat 

as a single large unit. They stated that 

we should otherwise better explain why 

the boundary for each essential feature 

is the same, how the boundary for each 

essential feature overlaps with other 

essential features, or why they have all 

been incorporated into a single mapped 

unit. 

Response: On the basis of the best 

scientific data available, and consistent 

with the definition of critical habitat 

under the ESA, we identified one 

specific area within the northern Bering, 

Chukchi, and Beaufort seas to designate 

as critical habitat for the Arctic ringed 

seal. The best scientific data available 

indicates that the specific area is 

occupied by the species and contains 

one or more of the identified essential 

features which may require special 

management considerations or 

protection. As we explained in the 

revised proposed rule, the temporal 

overlap of Arctic ringed seal molting 

with whelping and nursing, combined 

with the dynamic nature of sea ice and 

on-ice-snow depths makes it 

impracticable to separately identify 

specific areas where each of the sea ice 

essential features occurs. Further, ringed 

seals forage throughout the year (albeit 

with reduced feeding during molting), 

and their primary prey species are 

spatially dynamic due to the influences 

of various abiotic and biotic factors. 

Moreover, there is no requirement that 

we develop detailed maps depicting 

where each essential feature occurs. 

Comment 31: Several commenters, 

including Kawerak, recommended that 

Arctic ringed seal critical habitat 

include nearshore waters, river mouths, 

and inshore estuaries/lagoon systems 

found throughout the Seward Peninsula 

and Norton Sound, as well as Kotzebue 

Sound. Commenters stated that welldocumented IK indicates that ringed 

seals, in particular juveniles, use these 

areas during the ice-free period (e.g., 

Kawerak 2013, Oceana and Kawerak 

2014). Kawerak and another commenter 

stated that young seals use estuaries as 

sheltered calmer waters during adverse 

weather conditions, to escape largebodied predators like killer whales, and 

to hone their fishing skills in the 

shallow waters during the ice-free 

months. Kawerak also noted that these 

estuaries have aquatic plants that young 

seals use as cover when stalking the 

variety of small-bodied fishes and 

invertebrates that reside or travel 

through these waters. In addition, the 

Marine Mammal Commission 

commented that they concurred with 

the proposed shoreward boundary of 

critical habitat, but recommended that 

further research be conducted in 

nearshore and inshore habitats to better 

assess ringed seal use of these areas. 

Response: We recognize that Arctic 

ringed seal use of river mouths and 

inshore lagoons during the open-water 

period has been reported and 

documented, and we reviewed and 

considered the references that were 

cited in these comments, along with 

information presented in other available 

reports and peer-reviewed publications 

(e.g., Nelson 1981, Huntington 2000, 

Oceana and Kawerak 2014, Gadamus et 

al. 2015, Huntington et al. 2015c, 

Northwest Arctic Borough 2016) 

regarding this aspect of the seals’ habitat 

use. Regarding nearshore waters that 

were included in the revised proposed 

designation, in response to other public 

comments that questioned the identified 

boundaries of critical habitat with 

respect to the primary prey resources 

essential feature, we re-evaluated the 

best scientific data available and the 

approach we used to identify these 

boundaries to determine whether they 

were drawn appropriately. In the 

revised proposed rule, we preliminarily 

concluded that the seaward boundaries 

delineated for the sea ice essential 

features were also appropriate for 

defining the specific area where the 

primary prey resources essential feature 

occurs; but we defined the shoreward 

boundary as the line of MLLW based 

principally on occurrence of the 

primary prey essential feature. However, 

after review of this information, we 

recognize that the available data on the 

distributions of Arctic ringed seal 

primary prey species indicate that these 

prey resources are widely distributed 

across the entire geographic area 

occupied by these seals, and as such, we 

concluded it was not possible to 

delineate the boundaries of critical 

habitat based on the description of this 

feature alone. We also have no 

information that suggests any portion of 

the species’ occupied habitat provides 

primary prey resources that differ from 

those found within the specific area we 

are designating as critical habitat. Given 

that the movements and habitat use of 

Arctic ringed seals are strongly 

influenced by the seasonality of sea ice, 

we determined that the best approach to 

identify the appropriate boundaries for 

critical habitat is to base the delineation 

on the same boundaries identified for 

the sea ice essential features. In this 

final rule, we therefore define the 

shoreward boundary of Arctic ringed 

seal critical habitat as the 3-m isobath 

(relative to MLLW), consistent with the 

3-m minimum water depth identified 

for both sea ice essential features (see 

our response to Comment 19). 

In response to the comments 

suggesting that river mouths and 

inshore estuaries/lagoon systems be 

included in the designation, we 

specifically examined available 

information on ringed seal use of such 

areas, including the information sources 

identified by the commenters. Although 

ringed seal occurrence in this habitat 

has been documented, we concluded 

that at this time, we lack sufficient data 

to develop a description of the specific 

physical or biological features of this 

habitat that support the species’ life 

history needs, and to assess how those 

features provide for the life history 

requirements of the species such that 

they are essential to the conservation of 

the Arctic ringed seal. We acknowledge 

that, as noted by the Marine Mammal 

Commission, additional research on 

ringed seal use of nearshore and inshore 

habitats would help to better assess 

ringed seal use of these areas. Should 

additional information become available 

indicating whether and what essential 

features occur in these habitats, we can 

consider revising critical habitat 

accordingly. We also note that ESA 

section 7 consultation requirements 


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apply to any action that may affect 

Arctic ringed seals, including in river 

mouths or those shallow inshore 

estuaries/lagoon systems not identified 

as critical habitat, and these 

consultations typically analyze habitatrelated effects to the seals such as effects 

to prey, even in the absence of a critical 

habitat designation. 

Comment 32: Two commenters stated 

that Arctic ringed seals are most 

commonly found foraging in deeper 

offshore waters near pack ice and 

asserted that shallow nearshore waters 

should be excluded from critical habitat 

because we have not demonstrated that 

ringed seals actively or substantially 

feed in those waters or that such waters 

are used to any significant degree, and 

that ringed seals are instead most 

abundant and commonly found foraging 

in offshore waters near pack ice. One of 

the commenters further stated that 

although there are some data suggesting 

that juvenile ringed seals use shallow 

waters to forage late in the summer, this 

is marginal habitat not essential to 

conservation of the species. In addition, 

BOEM recommended that the 

designation focus on areas of greatest 

prey abundance and suggested that to 

address this that we remove areas which 

do not support adequate prey resources, 

such as shallow nearshore areas that 

have bottom-fast ice or are subject to 

scour, and/or identify thresholds of 

minimum prey abundance for ringed 

seals to persist. They went on to state 

that many shallow nearshore areas (less 

than 3 m) are lacking in adequate prey 

resources because the benthic habitats 

and communities are subject to 

disturbance from bottom-fast ice, strudel 

scouring in spring, and frequent ice 

gouging throughout the year, which 

destroy benthos and prevent benthic 

communities from developing. They 

also noted that influxes of fresh water 

where rivers and streams empty into the 

ocean kill or drive off marine benthic 

organisms. In addition, BLM and 

another commenter stated that we 

should present a more comprehensive 

analysis of Arctic ringed seal prey 

resources by providing information on 

the ranges and distributions of their 

prey species. BLM’s comments 

emphasized the Beaufort Sea, in 

particular, and added that we should 

include an analysis of this information 

relative to where prey species 

distributions overlap with the seals’ 

habitats, and where there is greatest 

prey species abundance, including 

seasonally. They stated that the revised 

proposed rule gives the impression that 

prey species are distributed 

homogenously throughout the seals’ 

range, although this is most likely not 

the case. 

Response: The ESA does not require 

that before designating an area as 

critical habitat we demonstrate that 

Arctic ringed seals actively or 

substantially use the area, that they use 

it to a significant degree, or that we 

focus on areas of greatest prey 

abundance. Alaska Oil & Gas Ass’n v. 

Jewell, 815 F. 3d 544, 555–56 (9th Cir. 

2016) (holding the ESA required 

USFWS to identify where the features 

essential to the conservation of a species 

occur, and does not require evidence a 

species currently uses those features in 

any particular area). Rather, the ESA 

states that an area qualifies as critical 

habitat if, based on the best scientific 

data available, it was occupied by the 

species at the time of listing and has one 

or more of the physical or biological 

features essential to the conservation of 

the species and that may require special 

management considerations or 

protection. As we explained in the 

revised proposed rule, our delineation 

of a specific area that contains one or 

more of the physical or biological 

features essential to the conservation of 

the Arctic ringed seal reflects the 

dynamic nature of the essential features, 

in particular of the sea ice essential 

features, the overlap in timing of 

whelping and nursing with basking and 

molting, the widespread distribution of 

Arctic ringed seals using the essential 

features, and the spatial scale of the 

seals’ movements in utilizing their 

habitat. Ringed seals forage throughout 

the year (albeit with reduced feeding 

during molting) and their movements 

are strongly influenced by the 

seasonality of sea ice. Satellite tracking 

data for Arctic ringed seals tagged in 

Alaska indicate that although individual 

seals may forage seasonally in some 

particular areas, they also make 

extensive use of a diversity of habitats 

for foraging across much broader areas, 

including in nearshore and offshore 

areas. The relative distribution and 

abundance of ringed seal primary prey 

species are spatially dynamic due to the 

influences of a combination of various 

abiotic (e.g., geographic and temporal 

extent of sea ice, ocean conditions) and 

biotic (e.g., prey availability, timing of 

spawning) factors. Our delineation of 

critical habitat with respect to the 

primary prey resources essential feature 

reflects the aforementioned 

considerations and is based on the best 

information available regarding the 

occurrence of Arctic ringed seal primary 

prey species, including information 

regarding their distributions and 

documented occurrence within the 

geographical area under consideration. 

The commenters did not provide any 

relevant literature or data that would 

support the identification of specific 

thresholds of minimum abundance for 

ringed seal primary prey species, nor of 

specific areas where concentrations of 

the primary prey species are found on 

a recurrent basis within the ringed seals’ 

habitats in Alaska. Habitat selection of 

ringed seals with respect to prey is also 

not well understood. While we 

acknowledge that it is likely that ringed 

seal primary prey species are distributed 

unevenly, the limits of the available 

information on the distribution and 

abundance of these prey species, and 

more importantly, the considerations 

discussed above, make it infeasible to 

delineate critical habitat more finely 

than we describe in this final rule. 

Although very shallow nearshore 

areas are especially prone to high levels 

of disturbance to the benthos, primary 

prey species of Arctic ringed seals, such 

as Arctic cod, saffron cod, and rainbow 

smelt, occur in these areas. We 

acknowledge that existing information 

on Arctic ringed seal use of nearshore 

areas is limited; however, there is 

evidence that ringed seals use both 

nearshore and offshore habitats, in 

particular during the open-water period. 

As we stated previously, we are not 

required to establish some threshold 

level of documented use, but only to 

find that primary prey species essential 

to the conservation of Arctic ringed 

seals occur in the specific area we are 

designating as critical habitat. Section 

4(b)(2) of the ESA requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Accordingly, we relied on the best 

information available to determine the 

specific areas that are eligible for 

designation, as described in the Specific 

Areas Containing the Essential Features 

section of this final rule. 

Nevertheless, as we explained above 

(see our response to Comment 31), in 

response to public comments such as 

these, we re-evaluated the best scientific 

data available and the approach we used 

to identify the specific area(s) that 

contain the primary prey resources 

essential feature. As a result, we now 

identify as critical habitat the specific 

area that contains the primary prey 

resources in addition to the sea ice 

essential features. Because we have 

revised the definitions for both sea ice 

essential features to identify the 

minimum water depth for these features 

as 3 m (relative to MLLW) (see our 

response to Comment 19), the 

shoreward boundary of the designation 

is now defined as the 3-m isobath 

(relative to MLLW). 


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Comment 33: One commenter 

suggested that we delineate primary 

prey resource units that identify 

presence/absence of each primary prey 

item to the extent possible within 

subsets of the larger designation. The 

commenter stated that this would be 

useful for future section 7 consultations 

and would serve as a means to identify 

priority areas and help support the 

adaptive management practices 

necessary for Arctic ringed seal 

conservation as the Arctic continues to 

experience changes. 

Response: As we explained in our 

response to Comment 32, data 

limitations and considerations related to 

the dynamic nature of the primary prey 

resources essential feature make it 

infeasible to delineate critical habitat 

more finely than we describe in this 

final rule. Regarding the comment 

concerning adaptive management, while 

this is a useful strategy for conservation 

of listed species and their habitats, 

under the ESA we designate critical 

habitat through a regulatory process that 

requires us to make decisions based on 

the best scientific data available at the 

time of designation. If new information 

becomes available concerning the effects 

of environmental changes on Arctic 

ringed seal primary prey resources that 

indicates revision of critical habitat may 

be appropriate to effectively provide for 

the conservation of the species, we can 

consider using the authority provided 

under section 4(a)(3)(A)(ii) of the ESA to 

revise the designation. 

Comment 34: One commenter stated 

we must identify the specific prey 

species and the specific locations 

(spatially and temporally) where 

foraging on those prey species is 

essential to the conservation of the 

Arctic ringed seal and in need of special 

management considerations or 

protection, and that the revised 

proposed rule did not provide a 

sufficiently specific delineation of 

critical habitat with respect to the 

proposed primary prey resources 

essential feature. They referred to the 

preamble to our 2016 final rule that 

amended the regulations for designating 

critical habitat, which said the 

descriptions of the physical and 

biological features essential to the 

conservation of the species would 

maintain the specificity of the primary 

constituent elements identified in 

previous designations (81 FR 7414, 

7426; February 11, 2016). They stated 

that under the prior regulations (which 

used the term ‘‘primary constituent 

elements’’), we were required to identify 

‘‘feeding sites’’ to support the 

designation of critical habitat based on 

prey species. 

Response: We disagree. Neither the 

ESA’s definition of critical habitat nor 

our implementing regulations at 50 CFR 

part 424 require that we designate 

critical habitat with the level of 

specificity asserted by the commenter, 

and this was also not required under the 

prior version of our regulations. The 

prior regulations listed ‘‘feeding sites’’ 

among examples of what may constitute 

primary constituent elements (referred 

to in our current regulations as physical 

or biological features) that may be 

defined and described as essential to the 

conservation of the species. Rather than 

identify where Arctic ringed seals 

actually feed on their essential prey, 

under the ESA we identify what prey 

are essential to the conservation of the 

Arctic ringed seal and then identify 

where those prey occur within the 

geographical area occupied by the 

species. Based on the best scientific data 

available, we determined that the 

primary prey resources essential to the 

conservation of Arctic ringed seals 

occur throughout the specific area we 

are designating as critical habitat. 

Comment 35: One commenter 

asserted that we improperly relied upon 

the description of essential fish habitat 

(EFH) for Arctic cod and saffron cod in 

delineating proposed critical habitat. 

They stated that while the EFH features 

may be necessary for those fish species, 

the features of that habitat do not 

support the critical habitat designation 

because they are not essential to the 

conservation of Arctic ringed seals. 

Response: We considered EFH, which 

NMFS has described and identified 

under the Magnuson-Stevens Fishery 

Conservation and Management Act for 

certain life stages of Arctic cod and 

saffron cod, as a part of the best 

information available to inform our 

determination of where the primary 

prey species of Arctic ringed seals 

occur. We also considered other sources 

of information that support the 

delineation of specific areas with 

respect to the primary prey species of 

Arctic ringed seals, as discussed in the 

Specific Areas Containing the Essential 

Features section of this final rule. 

Comment 36: BOEM stated that, 

although it is clear in the preamble to 

the revised proposed rule that critical 

habitat for Arctic ringed seals may 

contain one or more of the essential 

features, we should clarify that this is 

the case in the regulatory language for 

the designation. 

Response: We find the regulatory text 

contained in the revised proposed rule 

to be sufficiently clear—an area 

qualifies as critical habitat if it is 

occupied by the species and contains 

one or more physical or biological 

features that are essential to the 

conservation of the species and that may 

require special management 

considerations or protection (16 U.S.C. 

1532(5)(A)). 

Comment 37: In reference to the 

statement in the revised proposed rule 

that several tagged Arctic ringed seals 

showed foraging-type movements in 

deep waters north of the Beaufort Sea 

shelf, one commenter stated that we did 

not identify any evidence demonstrating 

what prey species ringed seals consume 

there. They stated that to conclude that 

the primary prey essential feature 

occurs in those waters, documentation 

would be needed on the stomach 

contents of ringed seals foraging there. 

Response: We disagree that we need 

to prove that ringed seals are consuming 

primary prey species in a particular area 

or that we would need data on stomach 

contents that do not currently exist to 

determine that waters north of the 

Beaufort Sea shelf contain the primary 

prey resources essential feature. Rather, 

in designating critical habitat the focus 

is on where features essential to the 

conservation of a species occur within 

the occupied habitat of a species, not 

where the species uses those features. 

We acknowledge that there is no 

information available on the prey 

species that tagged Arctic ringed seals 

were targeting north of the shelf break 

in the Chukchi and Beaufort seas. 

However, in determining the northern 

boundary with respect to primary prey 

resources, we took into consideration 

not only the information available on 

the foraging movements of these seals, 

but also, in particular, information 

indicating that the general distribution 

of Arctic cod—a ringed seal primary 

prey species—extends north of the 

continental shelf. In the preamble of this 

final rule, we have incorporated 

additional information to clarify this 

aspect of our determination. Based on 

the best scientific data available, we 

continue to find that the northern 

boundary delineated for the sea ice 

essential features is also appropriate for 

defining the specific area where the 

primary prey resources essential feature 

occurs (see Specific Areas Containing 

the Essential Features section). 

However, we have exercised our 

discretion under section 4(b)(2) of the 

ESA to exclude a particular area north 

of the Beaufort Sea shelf based on 

consideration of national security 

impacts (see Exclusion Based on 

National Security Impacts section). 

Special Management Considerations or 

Protection 

Comment 38: BOEM stated that 

because sea ice is projected to continue 


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to retreat northward, we should provide 

data and analysis of how the geography 

of the critical habitat for Arctic ringed 

seals would change in the future with 

substantial sea ice loss. They also stated 

that we should highlight those areas 

within critical habitat that are expected 

to retain suitable sea ice conditions for 

Arctic ringed seals long into the future, 

as this would help emphasize the need 

for further development of geographic 

solutions for habitat conservation. 

Another commenter suggested that it 

would be helpful and relevant to 

include reference to the loss of suitable 

habitat for whelping projected to occur 

this century as a result of decreased 

snow cover (Hezel et al. 2012). 

Response: In our evaluation of 

whether the essential features of Arctic 

ringed seal critical habitat may require 

special management considerations or 

protection, we indicated that the 

quantity and quality of these essential 

features, in particular sea ice, may be 

diminished by the effects of climate 

change. Although there will continue to 

be considerable annual variability in the 

rate and timing of the breakup and 

retreat of sea ice, trends are toward ice 

that is more susceptible to melt (Markus 

et al. 2009) and areas of earlier spring 

ice retreat (Stammerjohn et al. 2012, 

Frey et al. 2015). Thus, the earlier 

retreat of sea ice in the spring supports 

including the northern portion of the 

critical habitat in particular, as it retains 

sea ice suitable for birth lairs and/or 

basking and molting the longest. As 

suggested by a commenter, in the 

Climate Change section of this final 

rule, we have added information 

regarding projected reductions in on-ice 

snow depths, although it does not alter 

our previous identification of climate 

change as a source of threats to the 

essential features of Arctic ringed seal 

critical habitat. As for BOEM’s comment 

that we should explain how the 

geography of critical habitat may change 

in the future with substantial sea ice 

loss, the critical habitat boundaries will 

not automatically change in areal extent 

as sea ice distribution and extent 

diminish; they will remain fixed until 

such time as NMFS revises them based 

on new information. 

Comment 39: One commenter stated 

that climate change, driven by 

anthropogenic emissions of GHGs, poses 

an existential threat to the Arctic ringed 

seal, and noted that climate change 

impacts on the seals include changing 

temperatures, rapid loss of sea ice, 

altered precipitation regimes, ocean 

acidification, extreme weather events, 

and effects on key prey species. The 

commenter provided information and 

references regarding trends in GHG 

emissions, the relationship between 

GHG emissions and sea ice loss, and the 

impacts of climate change in the Arctic. 

In addition, another commenter stated 

that we should discuss ocean 

acidification and its effects on ringed 

seal prey. Several other commenters 

also expressed concerns over the 

impacts of climate change on the 

species, and one commenter, an Alaska 

Native hunter, reported their personal 

observations of sea ice loss and declines 

in the number of marine mammals. 

Response: We appreciate the 

comments and references provided by 

the commenters, which we reviewed 

and considered in developing the final 

critical habitat designation. As 

discussed in the revised proposed rule, 

we identified climate change as one of 

four primary sources of threats to the 

identified essential features of Arctic 

ringed seal critical habitat that may 

require special management 

considerations or protection. Although 

our evaluation does not consider an 

exhaustive list of threats that could 

impact the essential features, in 

response to comments, in the preamble 

to this final rule we have added ocean 

warming and acidification to our 

discussion of impacts on the essential 

features from climate change. 

Comment 40: One commenter 

requested that we remove the following 

statement in the revised proposed rule 

because it was unsupported and 

unnecessary: ‘‘The best scientific data 

available do not allow us to identify a 

causal linkage between any particular 

single source of GHG emissions and 

identifiable effects on the physical and 

biological features essential to the 

conservation of the Arctic ringed seal.’’ 

The commenter stated that scientific 

studies have documented continuing 

severe and rapid reductions in sea ice 

extent and thickness and increases in 

ocean acidification resulting from GHG 

emissions. The commenter further 

stated that GHG emissions from 

individual projects cumulatively 

contribute to habitat degradation and 

loss for the Arctic ringed seal, and 

appreciable GHG emissions from largescale projects can make a measurable 

difference in the amount of sea ice loss. 

Response: We acknowledge that 

particular point sources, such as a single 

power plant, contribute incrementally to 

global indicators like atmospheric 

concentration of GHGs or global average 

temperature. In response to this 

comment, we have omitted the 

statement in question in the preamble of 

this final rule because it is not needed 

to support our identification of climate 

change as a primary source of threats to 

each of the essential features of Arctic 

ringed seal critical habitat. 

Comment 41: One commenter 

provided information concerning 

regulation of commercial crab fisheries 

in the Bering Sea and Aleutian Islands 

and measures taken to minimize 

impacts of the fishery, noting that not 

all fisheries pose the same impacts and 

that they believe commercial crab 

fisheries do not pose a risk to Arctic 

ringed seals. The commenter stated that 

with changing environmental 

conditions, more commercial densities 

of crabs could move north into 

designated critical habitat, but if 

commercial crab fisheries follow this 

pattern, they do not believe that it 

would have substantial impacts on 

ringed seals. 

Response: In determining whether the 

essential features of Arctic ringed seal 

critical habitat may require special 

management considerations or 

protection, we base our determination 

on whether such management or 

protection may be required, rather than 

whether management is currently in 

place, or whether that management is 

adequate. As we discussed in the 

revised proposed rule, given the 

potential changes in commercial fishing 

that may occur with the expected 

increasing length of the open-water 

season and range expansion of some 

commercially valuable species 

responding to climate change, we 

concluded that the primary prey 

resources essential feature may require 

special management considerations or 

protection in the future to address 

potential adverse effects of commercial 

fishing on this feature. 

Comment 42: Several commenters 

expressed concerns over potential 

impacts of commercial fisheries on 

ringed seal prey resources through 

removal of biomass and/or modification 

of benthic habitat, in particular from 

bottom trawling activities. One 

commenter also expressed concern 

regarding the risk of incidental mortality 

of ringed seals if bottom trawlers are 

allowed further north, and they noted 

the potential for impacts on ringed seals 

from hook injuries due to the 2019 

arrival of a large-scale Pacific cod 

longline fleet to northern Bering Sea and 

Bering Strait region. Another 

commenter, an Alaska Native hunter, 

reported past observations of ringed 

seals feeding on herring south of the 

proposed critical habitat and expressed 

concern that commercial fishing 

activities have reduced herring biomass. 

Response: We understand the concern 

expressed by the commenters that 

commercial fisheries may impact Arctic 

ringed seal prey resources. Designation 


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of critical habitat does not, in and of 

itself, regulate or restrict any activities. 

Rather, through the section 7 

consultation process, Federal agencies 

must ensure that their actions are not 

likely to destroy or adversely modify 

designated critical habitat. Thus, once 

the Arctic ringed seal critical habitat 

designation becomes effective, any 

section 7 consultations on federally 

managed fisheries will be required to 

address the additional requirement that 

Federal agencies ensure that their 

actions are not likely to adversely 

modify or destroy designated critical 

habitat. We note, however, that we 

consult on Federal actions and thus not 

every fishery is subject to section 7 

consultation, as there are fisheries with 

no Federal nexus. Although we 

acknowledge the concerns regarding the 

risks posed to ringed seals by direct 

interactions with commercial fishing 

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

such impacts are considered threats to 

individual ringed seals themselves and 

not the habitat. To date, section 7 

consultations completed on the effects 

of Federal groundfish fisheries in the 

Bering Sea and Aleutian Islands 

Management Area on ringed seals have 

concluded that the seals are only 

occasionally taken in those fisheries, 

and that the fisheries are not likely to 

jeopardize the continued existence of 

the Arctic ringed seal. 

Comment 43: Several commenters 

expressed concerns over the potential 

impacts of vessel traffic, in particular 

icebreakers, on Arctic ringed seals, e.g., 

during the whelping period. One 

commenter requested that we expand 

the discussion of special management 

considerations or protection to include 

Arctic marine tourism, and stated that 

we should consider and discuss how 

marine tourism differs from other types 

of shipping traffic, as ice-reinforced 

vessels reportedly under construction 

may facilitate purposefully seeking out 

icy waters and areas with wildlife. In 

addition, several commenters 

specifically noted concerns over 

potential impacts from vessel 

discharges, spills of oil or other 

hazardous materials, and release of 

marine debris. 

Response: We agree that vessel traffic, 

in particular icebreaking activities, may 

affect the essential features of Arctic 

ringed seal critical habitat, and we 

addressed those potential effects in our 

evaluation of whether these features 

may require special management 

considerations or protection. As we 

discuss in the Special Management 

Considerations or Protection section of 

this final rule, in addition to the 

potential effects of icebreaking on the 

essential features, the most significant 

threat posed by marine shipping and 

transportation is considered to be the 

accidental or illegal discharge of oil or 

other toxic materials. Regarding marine 

tourism, in this evaluation we identified 

cruise ships as part of the maritime 

traffic along the western and northern 

Alaska coasts, and in the draft and final 

versions of the impact analysis reports 

for this designation (NMFS 2020, 2021), 

we discussed that a limited but 

increasing number of cruise ships bring 

tourists to waters within Arctic ringed 

seal critical habitat. As previously 

explained, section 7 consultation 

requirements apply only when a Federal 

action is involved (i.e., an action 

authorized, funded, or carried out by a 

Federal agency). For icebreaking or 

other vessel-based activities with a 

Federal nexus, NMFS and the action 

agency would evaluate potential effects 

on a case-by-case basis. 

Comment 44: BLM recommended that 

we provide a more thorough oil spill 

and oil spill response analysis, 

specifically for the North Slope of 

Alaska, to frame the possibility of this 

impact more accurately with current 

information. They stated that we need to 

acknowledge the progress that has 

occurred since AMAP (2007) to prevent 

and minimize oil spills in the Arctic 

and current response mechanisms in 

place. They specifically requested that 

we review and incorporate appropriate 

Alaska Clean Seas policies and 

protocols, including response and 

training infrastructure. They also stated 

that we should update the information 

on the risk of oil spills, and provide 

additional context by acknowledging 

that the most common development of 

oil fields would most likely be near 

existing nearshore oil and gas 

infrastructure in the Beaufort Sea, rather 

than in remote areas, and that there are 

offshore producing fields there that have 

been operating for many years with no 

major oil spills. 

Response: We recognize that there are 

existing oil spill prevention and 

response mechanisms in place; 

however, as we explained in the revised 

proposed rule, in determining whether 

the essential features may require 

special management considerations or 

protection, we do not base our decisions 

on whether management is currently in 

place or whether such management is 

adequate. We are required to make a 

determination about whether the 

essential features may require special 

management considerations or 

protection either now or in the future, 

and the existence oil spill prevention 

and response mechanisms is evidence 

that the essential features do in fact 

require special management 

considerations. Our evaluation of oil 

and gas activities in the Special 

Management Considerations or 

Protection section of this final rule is 

sufficient to establish that the ‘‘may 

require’’ standard is met or exceeded 

with respect to the risk posed to the 

essential features of Arctic ringed seal 

critical habitat by these activities, 

primarily through pollution 

(particularly the possibility of large oil 

spills), noise, and physical alteration of 

the species’ habitat. 

Impacts of Critical Habitat Designation 

Comment 45: Two commenters stated 

that the timeframe used in the Draft 

Impact Analysis Report was arbitrarily 

truncated at 10 years, and thus failed to 

account for costs associated with the 

designation that will undoubtedly 

accrue beyond this timeframe. One of 

the commenters noted that USFWS 

considered economic impacts of 

designation of critical habitat for the 

polar bear over a 30-year timeframe. 

This commenter also contended that the 

use of a 10-year timeframe is inherently 

contradictory and arbitrary given that 

the listing determination for the Arctic 

ringed seal was based on ‘‘a 100-year 

foreseeable future.’’ The other 

commenter stated that the analysis of 

economic impacts should be revised to 

use a timeframe coextensive with the 

anticipated duration of the designation, 

citing in support of this contention a 

court decision involving the limited 

timeframe considered in a particular 

biological opinion (Wild Fish 

Conservancy v. Salazar, 628 F.3d. 

513(9th Cir. 2010)). 

Response: As discussed in Section 2.4 

of both the draft and final versions of 

the impact analysis reports for this 

designation, guidance from OMB 

indicates that ‘‘if a regulation has no 

predetermined sunset provision, the 

agency will need to choose the endpoint 

of its analysis on the basis of a judgment 

about the foreseeable future’’ (OMB 

2011). Because rules designating critical 

habitat have no predetermined sunset, 

we determined the endpoint for our 

analysis based on a judgment regarding 

the foreseeable future economic effects, 

and in particular, the difficulty in 

making reliable forecasts of Federal 

activities and costs beyond this 

timeframe. The information upon which 

the analysis of impacts of the 

designation is based includes NMFS’s 

record of section 7 consultations from 

2013 to 2019 on activities that may have 

affected the essential features of Arctic 

ringed seal critical habitat (relatively 

few relevant consultations were 

identified for the 3 years prior to when 


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the Arctic ringed seal was listed under 

the ESA), as well as available 

information on planned activities that 

may affect these essential features. We 

acknowledge that the critical habitat 

designation for Arctic ringed seals is 

expected to result in costs that will be 

incurred more than 10 years into the 

future, and although we do not quantify 

the probable economic impacts beyond 

this 10-year time period, we believe that 

the estimated impacts of the designation 

over the next 10 years generally reflect 

the nature and magnitude of costs 

beyond this timeframe. This timeframe 

is also consistent with OMB guidance 

stating that ‘‘[f]or most agencies, a 

standard time period of analysis is 10 to 

20 years, and rarely exceeds 50 years’’ 

(OMB 2011), and longstanding NMFS 

practice (e.g., economic analyses of 

critical habitat designations for the 

Central America, Mexico, and Western 

North Pacific distinct population 

segments (DPSs) of humpback whales, 

Main Hawaiian Islands insular false 

killer whales, Northwest Atlantic DPS of 

loggerhead sea turtles, Cook Inlet 

belugas, and smalltooth sawfish). 

Although not relevant to the timeframe 

used in the economic analysis, we note 

that in the listing analysis for this 

species, we did not identify a single 

specific time as the foreseeable future. 

Rather, we addressed the foreseeable 

future based on the available data for 

each respective threat, and we had 

sufficient information to establish that 

threats stemming from climate change 

were foreseeable through approximately 

the end of the 21st century (77 FR 

76706, December 28, 2012). 

Comment 46: Several commenters, 

including the Alaska Department of 

Natural Resources (ADNR), stated that 

the Draft Impact Analysis Report 

substantially underestimated the 

impacts of the proposed critical habitat 

designation because it primarily 

identified the incremental 

administrative costs associated with 

conducting section 7 consultations that 

include the critical habitat. The 

commenters stated that the analysis did 

not sufficiently account for the full 

range of likely consequences of the 

designation, including costs that could 

result under other Federal regulatory 

programs, threatened and actual 

lawsuits, delay and impediment of 

activities, and effects related to 

increased regulatory uncertainty. 

Commenters asserted that because these 

additional costs are likely to occur, can 

be assessed and calculated, and would 

have significant impacts on activities 

that occur on and adjacent to the North 

Slope, the draft report should be revised 

to include an analysis of these impacts, 

both quantitative and qualitative. 

Commenters also noted that the U.S. 

Army Corps of Engineers (USACE) can 

impose significantly higher mitigation 

costs for Clean Water Act (CWA) section 

404 permits on projects located in 

critical habitat compared to projects 

located outside of critical habitat. They 

added that the CWA’s National 

Pollution Discharge Elimination System 

(NPDES) permit program mandates 

special considerations and protections 

for areas designated as critical habitat. 

ADNR and another commenter stated 

this was also the case under the Outer 

Continental Shelf Lands Act. 

Additionally, a commenter noted that 

areas designated as critical habitat have 

informed the imposition of additional 

mitigation measures and modifications 

to proposed activities in authorizations 

issued under the MMPA. ADNR and 

another commenter described that areas 

designated as critical habitat have been 

expressly excluded from coverage in at 

least two Alaska-related NPDES permits. 

In addition, regarding section 404 

permits, ADNR described as a specific 

example that compensatory mitigation 

for the Point Thomson project involved 

significantly greater total acreage and 

therefore greater costs solely because 

affected wetlands were located in polar 

bear critical habitat. 

Regarding the potential for litigation, 

commenters stated that oil and gas and 

other activities on the North Slope and 

in the Chukchi and Beaufort seas are 

already frequently the subject of 

lawsuits intended to delay, impede, and 

prevent projects from proceeding. 

ADNR cited as examples lawsuits 

regarding the polar bear critical habitat 

designation (Alaska Oil and Gas Ass’n 

v. Jewell, Case No. 13–35919 (9th Cir. 

2016)), and the Cook Inlet beluga whale 

critical habitat designation. ADNR 

stated that time delays and uncertainty 

could add significant costs (perhaps 

millions of dollars) to projects requiring 

Federal permits. ADNR added that 

because of the limited time window 

available when construction may occur, 

depending on the project, delays could 

have cascading effects on the timing of 

construction, the start of operations, and 

the ability to produce oil, gas, or other 

resources. In addition, ADNR stated that 

the designation will devalue acquired 

and future oil and gas leases due to 

increased risks associated with the 

developing those leases. 

Response: As described in Section 3 

of the Final Impact Analysis Report, the 

analysis of economic impacts of the 

critical habitat designation considers 

direct, incremental costs associated with 

section 7 consultations (i.e., 

administrative costs of consultations 

and any project modifications requested 

by NMFS to avoid or minimize potential 

destruction or adverse modification of 

critical habitat), as well as the potential 

for indirect impacts (i.e., not related to 

section 7 outcomes), such as time delays 

or regulatory uncertainty. This analysis 

considered all relevant incremental 

costs associated with the designation, 

and these costs were monetized to the 

fullest extent that reasonable estimates 

could be made, and were otherwise 

treated qualitatively when monetization 

was not possible. Section 6 of the Draft 

Impact Analysis report recognized that 

some potential exists for the designation 

to result in costs associated with 

indirect impacts. However, the 

incremental costs associated with such 

effects were not quantified in the 

analysis due to significant uncertainty 

and information limitations. In response 

to public comments, the Final Impact 

Analysis Report (see Section 6.10 of the 

report) provides an expanded 

discussion of the concerns expressed by 

the commenters regarding the potential 

for indirect incremental impacts, such 

as the potential for future third-party 

litigation over specific section 7 

consultations, time delays, and other 

sources of regulatory uncertainty, as we 

describe in more detail below. We 

considered both the quantitative and 

qualitative information presented in that 

report in developing the final critical 

habitat designation for the Arctic ringed 

seal. 

The Final Impact Analysis Report 

acknowledges the concern expressed by 

commenters that, under certain 

circumstances, Federal agencies such as 

USACE (as well as local and State 

agencies) may choose to manage areas 

differently after critical habitat is 

designated. However, we are not aware 

of plans by any agency to institute 

future restrictions to provide specific 

protections for Arctic ringed seal critical 

habitat. We note that in the specific 

NPDES general permits cited as 

examples by commenters, the critical 

habitat excluded from coverage reflected 

the U.S. Environmental Protection 

Agency’s consideration of potential 

effects of permitted discharges to one 

particular listed species and its critical 

habitat. Not all designated critical 

habitat was excluded from coverage in 

these permits, and there is no basis to 

assume that the Arctic ringed seal 

critical habitat designated in this rule 

would be excluded. With regard to the 

concern related to requirements for 

authorizations that NMFS may issue 

under the MMPA, as discussed in 

Section 6 of this report, our review of 


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recent actions in the critical habitat area 

has not identified a circumstance in 

which a section 7 consultation would 

likely result in project modifications 

solely to avoid impacts to Arctic ringed 

seal critical habitat. Because it is not 

possible to predict the timing, 

frequency, or extent to which this 

critical habitat designation may trigger 

specific additional requirements under 

non-ESA regulatory programs, the report 

concludes that attempting to forecast 

such hypothetical outcomes would be 

speculative. 

With regard to comments concerning 

the potential for the critical habitat to be 

used in litigation, we note that the 

specific court case cited by ADNR as an 

example (Alaska Oil and Gas Ass’n v. 

Jewell, Case No. 13–35919 (9th Cir. 

2016)) challenged the polar bear critical 

habitat rule itself. However, when 

considering the economic impacts of the 

designation, we do not consider costs of 

litigation associated with challenging 

the critical habitat rule. Historical 

precedent does exist for third-party 

lawsuits to challenge activities 

occurring in designated critical habitat. 

However, these lawsuits typically 

include claims regarding effects to both 

listed species and critical habitat, and 

may include claims under other laws, 

e.g., the MMPA, the National 

Environmental Policy Act, etc. 

Moreover, it is not possible to predict 

the nature, frequency, timing, or 

outcome of such lawsuits, and as such, 

attempting to do so would involve 

significant speculation. The Final 

Impact Analysis Report describes the 

concern and the potential for lawsuits 

but concludes that determining the 

outcomes of such third-party litigation 

would be speculative. 

Regarding concerns related to time 

delays specifically associated with the 

need to address critical habitat in future 

section 7 consultations, Federal 

agencies are already required to consult 

with NMFS under section 7 for actions 

that may affect Arctic ringed seals. 

These consultations typically analyze 

habitat-related effects to the seals such 

as effects to prey, even in the absence 

of a critical habitat designation. While 

Federal actions that may affect the 

essential features of the critical habitat 

will require an analysis to ensure that 

these actions are not likely to result in 

the destruction or adverse modification 

of the critical habitat, which will 

impose some minor incremental costs to 

consultations, we do not expect that this 

will require substantial additional time 

or resources, especially for new 

consultations (see also our response to 

Comment 47). Further, timelines for 

section 7 consultations are specified in 

statute and our implementing 

regulations and the number of listed 

species or critical habitats considered in 

any given consultation does not affect 

these timelines. 

Although there is potential for 

regulatory uncertainty, whether and to 

what extent projects or associated 

economic behavior may be affected due 

to regulatory uncertainty stemming from 

the critical habitat designation is 

significantly uncertain. The types of 

data that would be necessary to quantify 

costs associated with regulatory 

uncertainty, such as data linking the 

designation to changes in industry 

economic behavior, are unavailable. As 

for ADNR’s concern that the designation 

will devalue oil and gas leases, we are 

not aware of any empirical evidence or 

studies of such effects for the areas 

included in the designation, and none 

were identified in these comments. 

Therefore, the Final Impact Analysis 

Report describes the commenters’ 

concerns about potential indirect effects 

stemming from regulatory uncertainty, 

as well as the concern expressed by 

ADNR over potential devaluation of oil 

and gas leases. However, due to the 

significant uncertainty and information 

limitations, it concludes that attempting 

to forecast changes in economic 

behavior resulting from regulatory 

uncertainty on the part of industry 

relative to this critical habitat 

designation would be speculative. 

Comment 47: One commenter stated 

that the impacts associated with a 

critical habitat designation cannot be 

simply dismissed as mere additional 

administrative costs in the section 7 

consultation context. They noted that 

section 7 consultations typically 

require, for example, the preparation of 

biological assessments, consultant 

services to identify potential effects of 

the proposed action and potential 

mitigation or conservation measures, 

robust engagement with the relevant 

federal agencies, and frequent litigation 

regarding the outcome. They stated that 

the addition of critical habitat to the 

consultation process creates additional 

analytical components with additional 

potential modifications to the proposed 

action to avoid any destruction or 

adverse modification of critical habitat, 

and that these factors increase the 

duration of project reviews, impose 

additional regulatory burdens, and 

create additional legal risks. 

Response: As we stated in our 

response to Comment 46, Federal 

agencies have an existing obligation to 

consult with NMFS to ensure that any 

action authorized, funded, or carried out 

by them (i.e., Federal action) is not 

likely to jeopardize the continued 

existence of the Arctic ringed seal. As 

discussed in Section 6 of the Final 

Impact Analysis Report, based on the 

best information available, the Federal 

actions projected to occur within the 

timeframe of the analysis that may 

trigger a section 7 consultation due to 

the potential to affect one or more of the 

essential features of the critical habitat 

also have the potential to affect Arctic 

ringed seals. Thus, we expect that none 

of the activities we identified would 

trigger a consultation solely on the basis 

of this critical habitat designation. 

Public comments did not provide any 

new information that could be used to 

revise this analysis. In addition, as 

discussed in Section 6 of the Final 

Impact Analysis Report and in the 

Economic Impacts section of this final 

rule, at this time, we do not anticipate 

that section 7 consultations would 

result in additional requests for project 

modifications to avoid or minimize 

adverse modification of Arctic ringed 

seal critical habitat beyond any 

modifications that may be necessary to 

address impacts to the seals (i.e., under 

the jeopardy standard). In particular, 

this is because section 7 analyses of the 

effects of proposed Federal actions on 

listed species, which are triggered by 

the threatened status of the Arctic 

ringed seal under the ESA, already 

consider habitat-related impacts to the 

seals. Although each proposed Federal 

action must be reviewed at the time of 

consultation based on the best scientific 

and commercial data available at that 

time, it is unlikely that any project 

modifications are likely to result from 

such consultations that would be 

attributable solely to the critical habitat 

designation, since any modifications 

required to avoid jeopardy for this 

species would likely be identical to 

measures needed to avoid adverse 

modification of critical habitat. While 

we recognize that Federal actions that 

may affect the essential features of 

Arctic ringed seal critical habitat will 

require an analysis to ensure that these 

actions are not likely to result in the 

destruction or adverse modification of 

the critical habitat, which will impose 

some minor additional costs, we do not 

expect that this will require substantial 

additional time or resources. Further, 

timelines for section 7 consultations are 

specified in statute and our 

implementing regulations, and the 

number of listed species or critical 

habitats considered in any given 

consultation does not affect these 

timelines. 

As discussed in Section 3.1 of the 

Final Impact Analysis Report, the 

estimates of administrative consultation 


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costs applied in the economic analysis 

are based on a review of consultation 

records from several field offices across 

the country, and modifications to reflect 

our experience with consultations in 

Alaska. These cost estimates take into 

consideration the anticipated level of 

effort that would be required to address 

potential effects on critical habitat in 

consultations, as well as the complexity 

of the consultations (e.g., formal versus 

informal). 

With regard to the comment on legal 

risks and other indirect impacts of the 

designation, see our response to 

Comment 46. 

Comment 48: Several commenters 

emphasized that oil and gas exploration, 

development, and production on the 

North Slope and in adjacent offshore 

areas provide very substantial economic 

benefits, and ADNR and another 

commenter stressed that these activities 

are of national strategic significance and 

provide important energy, economic 

and national security benefits. ADNR 

and another commenter expressed that 

Congress established, and courts have 

affirmed, that leasing, exploration, and 

development of these resources are a 

national priority and in the public 

interest. They added that the present 

and future contribution of oil and gas 

from the North Slope of Alaska and 

from adjacent state and Federal waters 

meets a substantial portion of our 

national energy needs. Further, they 

stated that development of domestic 

energy resources, including oil and gas 

located in, and adjacent to, Alaska, is a 

well-documented matter of national 

security and is consistent with the wellestablished mandates of Federal law. 

All of these commenters asserted that 

the proposed critical habitat designation 

will result in additional section 7 

consultations, project modifications, 

and likely litigation, and that project 

delays and increased costs may thus 

result in impediment of oil and gas 

activities, less exploration, fewer 

opportunities to discover economic 

reserves, and therefore, less 

development and production of 

domestic oil and gas resources in these 

areas, to the detriment of local 

communities, the State of Alaska, and 

the United States. ADNR expressed 

similar concerns regarding potential 

impacts of the designation on 

development of critical minerals, citing 

as an example the Graphite One mine 

project north of Nome. The North Slope 

Borough commented that the 

development of natural resources in and 

adjacent to the North Slope largely 

supports the regional economy, allows 

the Borough to provide essential 

services and other benefits to its 

residents, and supports the municipal 

tax base. The Borough expressed 

concern that because a significant 

portion of its revenue is derived from 

taxes on oil and gas infrastructure, 

additional impacts to these projects as a 

result of the designation would be felt 

by the Borough. 

Response: As discussed in the 

Economic Impacts section of this final 

rule and detailed in the Final Impact 

Analysis Report, the total incremental 

costs associated with the critical habitat 

designation for the Arctic ringed seal 

within the 10-year post-designation 

timeframe, in discounted present value 

terms, were estimated at $714,000 

(discounted at 7 percent) to $834,000 

(discounted at 3 percent). About 83 

percent of the incremental costs 

attributed to the critical habitat 

designation are expected to accrue from 

ESA section 7 consultations associated 

with oil and gas related activities in the 

Chukchi and Beaufort seas. To avoid 

understating the cost estimates, we 

assumed that a high projected level of 

oil and gas activity will occur annually, 

although such a high level of activity is 

unlikely to occur in each and every 

year. As detailed in the Final Impact 

Analysis Report, the costs associated 

with the designation of critical habitat 

for the Arctic ringed seal are expected 

to primarily consist of additional 

administrative costs to consider the 

critical habitat as part of future section 

7 consultations, with third-party costs 

primarily borne by the oil and gas 

sector. Costs to the oil and gas industry 

are expected to be limited to 

administrative costs of adding Arctic 

ringed seal critical habitat to section 7 

consultations that are already required 

to address effects to Arctic ringed seals 

(and potentially other listed species). At 

this time, we have no information to 

suggest incremental project 

modifications requests are likely to 

result from these consultations above 

and beyond any modification requests 

related to addressing impacts to Arctic 

ringed seals (i.e., under the jeopardy 

standard). Including a critical habitat 

analysis in consultations would slightly 

increase permitting costs for oil and gas 

sector activities, but such costs 

attributable to this designation are not 

anticipated to change the level of oil 

and gas sector activities within critical 

habitat. As discussed in Section 9.2 of 

the Final Impact Analysis Report, ESA 

section 7 consultations have occurred 

for numerous oil and gas projects within 

the area of the designation (e.g., 

regarding possible effects on endangered 

bowhead whales) without adversely 

affecting energy supply, distribution, or 

use. The same outcome is expected 

relative to critical habitat for Arctic 

ringed seals. This designation is not 

expected to significantly affect oil and 

gas production decisions, subsequent oil 

and gas supply, or the cost of energy 

production. We have therefore 

determined that the energy effects of 

this designation of critical habitat are 

unlikely to exceed the thresholds in 

E.O. 13211, and that this rulemaking is 

not a significant energy action (see 

Executive Order 13211, Energy Supply, 

Distribution, and Use section). Also, see 

our responses to Comment 46 regarding 

potential indirect impacts of the 

designation, and Comment 47, regarding 

section 7 consultation costs, generally. 

Comment 49: The North Slope 

Borough stated that we failed to 

consider impacts on municipal and 

village activities, such as construction of 

sea walls, repair and maintenance of 

roads, water treatment activities, and 

building and other infrastructure 

construction. The Borough commented 

that these activities will likely require a 

Federal permit or involve Federal 

funding, and thus will likely require 

section 7 consultation and mitigation 

and/or modifications to avoid adverse 

modification or destruction of the 

critical habitat. The Borough stated that 

the additional effort for consultations 

and implementation of mitigation 

measures will add possible delays and 

substantial costs to local projects such 

that many of them will no longer be 

affordable. 

Response: The Draft Impact Analysis 

Report projected the occurrence of 

Federal activities by level of 

consultation (formal or informal) over 

the timeframe of the analysis, including 

for coastal construction projects, as well 

as for activities involving ports and 

harbors (see Table 5–16 and Section 6 

of this report). The commenter did not 

provide specific relevant information or 

examples of planned municipal or 

village activities with a Federal nexus 

that could be used to revise this 

analysis. As summarized in Table 5–16 

of the draft and final versions of the 

impact analysis report (NMFS 2020, 

2021), most of the forecasted 

consultations for these types of 

activities are expected to conclude 

informally (i.e., conclude with a letter of 

concurrence that the action is not likely 

to adversely affect the critical habitat 

rather than requiring a biological 

opinion). Further, it is not likely that 

section 7 consultations involving these 

types of activities if needed would 

result in additional requests for project 

modifications attributable to the critical 

habitat designation given the nature of 

these activities, their potential to affect 


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the essential features, and the existing 

need to consider effects on the seals due 

to the threatened status of the species 

(which typically includes consideration 

of habitat-associated threats). With 

respect to incremental costs of 

consultations, also see our response to 

Comment 47. 

Comment 50: Several commenters 

asserted that we failed to fully consider 

or analyze the economic and other 

impacts of the critical habitat 

designation on Alaska Natives, the 

North Slope Borough, coastal 

communities in western and northern 

Alaska, and municipal and village 

activities in these regions. The 

commenters stated these impacts would 

be unreasonably and disproportionately 

imposed upon Alaska Natives, and in 

particular, upon residents of the North 

Slope. The North Slope Borough stated 

that the development of natural 

resources in and adjacent to the North 

Slope largely supports the regional 

economy, allows for the provision of 

essential services, supports the 

municipal tax base, and allows the 

Borough to provide other benefits to its 

residents. The Borough stressed that any 

impact on the development of these 

natural resources will therefore also 

impact the Borough and its residents. 

The Borough added that the revised 

proposed rule did not address any of the 

requirements of E.O. 12898 (Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations). The Borough 

noted that the Draft Impact Analysis 

Report briefly addressed these 

requirements, but disagreed with the 

conclusion in the report that no 

disproportionate adverse economic 

impacts are anticipated. 

Response: We understand that the 

potential for impacts of the designation 

is of significant concern to the 

commenters. As discussed in the 

Economic Analysis section of this final 

rule, we have considered and evaluated 

the potential economic impact of the 

critical habitat designation under 

section 4(b)(2) of the ESA, as identified 

in the Final Impact Analysis Report. 

Based on this evaluation, we have 

concluded that the potential economic 

impacts associated with the critical 

habitat designation are modest both in 

absolute terms and relative to the level 

of economic activity expected to occur 

in the affected area, which is primarily 

associated with oil and gas activities 

that may occur in the Chukchi and 

Beaufort seas. As indicated in our 

response to Comment 47, the costs 

associated with the designation are 

expected to primarily consist of 

additional administrative costs to 

consider the critical habitat as part of 

future section 7 consultations, with 

third-party costs primarily borne by the 

oil and gas sector. The designation is 

not expected to significantly affect oil 

and gas production decisions, 

subsequent oil and gas supply, or the 

cost of energy production. In addition, 

as detailed in Section 9.1 of the Final 

Impact Analysis Report, based on the 

best information available, the critical 

habitat designation is expected to result 

in minimal impacts to small entities. We 

therefore do not expect the critical 

habitat designation to have a 

disproportionately high effect on low 

income or minority populations and this 

designation is consistent with the 

requirements of E.O. 12898. We also 

underscore here that no restrictions on 

subsistence hunting by Alaska Natives 

are associated with the critical habitat 

designation for the Arctic ringed seal. 

Comment 51: ADNR stated that we 

neglected to identify Alaska as a 

potentially affected economic sector or 

group in the Draft Impact Analysis 

Report. They stressed that there are 

substantial economic benefits to Alaska 

and its citizens from mining, oil and 

gas, and other activities on the North 

Slope and in the adjacent state and 

Federal waters of the Chukchi and 

Beaufort seas, and additionally, that 

Alaska has interest in access to and 

transportation in the proposed critical 

habitat areas. ADNR and ADF&G 

expressed concerns that the critical 

habitat designation will place 

disproportionate regulatory burdens and 

economic costs on Alaskans and may 

result in less mining, oil, gas, and other 

activities, to the detriment of Alaska. 

Response: The draft and final versions 

of the impact analysis report (NMFS 

2020, 2021) analyze in detail the 

incremental and other relevant impacts 

of the proposed Arctic ringed seal 

critical habitat designation. Section 5.4 

of these reports describes the economic 

and social activities within, and in the 

vicinity of, the critical habitat 

designation, including Arctic North 

Slope oil and gas exploration, 

development and production, mining, 

ports and coastal construction, 

commercial fisheries, Alaska Native 

subsistence, recreation and tourism, 

commercial shipping and 

transportation, military activities, and 

education and scientific activities. 

These reports considered all relevant 

economic impacts, and developed cost 

(and benefit) estimates at an appropriate 

scale based on the best data available. 

As discussed in the Economic Impacts 

section of the revised proposed rule and 

this final rule, the direct incremental 

costs of this critical habitat designation 

are expected to be limited to the 

additional administrative costs of 

considering Arctic ringed seal critical 

habitat in future section 7 consultations. 

We conclude in the final rule that the 

potential economic impacts associated 

with the designation of critical habitat 

for the Arctic ringed seal are modest 

both in absolute terms and relative to 

the level of economic activity expected 

to occur in the affected areas. This 

conclusion has not changed from the 

revised proposed rule. 

Comment 52: Several commenters 

indicated that they appreciated that we 

clearly stated in the revised proposed 

rule that no restrictions on subsistence 

hunting are associated with the critical 

habitat designation. Still, the Marine 

Mammal Commission recommended 

that we discuss and highlight in the 

final rule and in other appropriate 

outreach materials and fora that the 

critical habitat designation is not 

expected to have any adverse impact on 

Alaska Native subsistence activities. 

The Commission commented that there 

is a widely held perception that 

designating critical habitat has adverse 

consequences for Alaska Natives who 

hunt marine mammals, but that is not 

the case. 

Response: As indicated by the 

commenters and stated in this final rule, 

although this critical habitat designation 

overlaps with areas used by Alaska 

Natives for subsistence, cultural, and 

other purposes, no restrictions are 

associated with the designation. We 

have emphasized this point in public 

venues, such as the public hearings on 

the proposed designation, and in our 

communications with the Ice Seal 

Committee, the Alaska Native 

organization with which we co-manage 

the subsistence use of ice-associated 

seals under section 119 of the MMPA. 

We have also conveyed this message in 

letters sent to tribes and Alaska Native 

corporations concerning the critical 

habitat designation. We agree with the 

Marine Mammal Commission that it is 

important to continue to highlight this 

information in appropriate outreach 

materials and fora. 

Comment 53: One commenter found it 

unclear in the discussion of economic 

aspects of the proposed critical habitat 

designation who would specifically be 

responsible for ‘‘third-party’’ costs of 

section 7 consultations and suggested 

clarifying this. The commenter also 

noted that the range of estimated annual 

costs associated with the proposed 

critical habitat designation is very wide. 

The commenter stated that although the 

Draft Impact Analysis Report provided 

sufficient detail regarding why this is 

the case, the related text in the revised 


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proposed rule was confusing and 

ambiguous. 

Response: Parties involved in a 

section 7 consultation include NMFS, a 

Federal action agency, and in some 

cases, a third party participant. A third 

party having an interest in a 

consultation may be a private entity 

(e.g., applicant for a Federal permit), 

local or state government, or some other 

entity. We have clarified this in the 

Final Impact Analysis Report. The 

results of this analysis indicate that 

third parties bear an estimated 58 

percent of the total costs of the critical 

habitat designation within the 

timeframe of the analysis (10 years), the 

majority of which are associated with 

oil and gas activities. The cost model 

used a retrospective assessment of 

recent section 7 consultations and 

available information on planned 

activities to inform the cost estimates, 

including third-party costs, of future 

consultations over the next 10 years. 

The cost estimate values are discounted 

as required by regulatory guidance 

(OMB Circular A4). 

Benefits of Critical Habitat Designation 

Comment 54: Several commenters, 

including the State of Alaska (ADNR 

and ADF&G), stated that Arctic ringed 

seals are already sufficiently protected 

from adverse impacts by the MMPA, 

CWA, Clean Air Act, Outer Continental 

Shelf Lands Act, National 

Environmental Policy Act, Oil Pollution 

Act of 1990; and other Federal, state, 

and local regulations. Commenters 

emphasized that activities such as oil 

and gas exploration and development 

are regulated pursuant to the MMPA to 

ensure that they have no more than a 

negligible impact on ringed seals, and 

referred to the record of incidental take 

authorizations issued for Arctic oil and 

gas activities. One commenter stated 

that USFWS has already determined, 

and courts have agreed, that the 

provisions of the MMPA provide a 

greater level of protection to marine 

mammals than the ESA. In addition, 

ADNR stated that the oil and gas 

industry has coexisted with bowhead 

whales under MMPA protections for 

decades, and there has been no attempt 

to designate critical habitat for this 

species. ADF&G and another commenter 

stated that moreover, the proposed 

designation is redundant with existing 

habitat protections for polar bears, 

notwithstanding differences in habitat 

use between the two species, as there is 

substantial overlap between the area 

proposed for designation and the area 

already designated for polar bears. 

Response: We recognize that certain 

laws and regulatory regimes already 

protect, to different degrees and for 

various purposes, U.S. waters occupied 

by the Arctic ringed seal, and therefore, 

to a certain extent, the essential features. 

However, the existing laws and 

regulations do not ensure that current 

and proposed Federal actions are not 

likely to adversely modify or destroy 

Arctic ringed seal critical habitat. For 

example, regulations under the MMPA 

provide specific protections for Arctic 

ringed seals but they do not specifically 

protect the essential features and 

conservation value of Arctic ringed seal 

critical habitat. Moreover, critical 

habitat must be designated regardless of 

whether other laws or measures already 

provide protection. See Natural Res. 

Def. Council v. U.S. Dep’t of the Interior, 

113 F.3d 1121, 1127 (9th Cir. 1997) 

(‘‘Neither the Act nor the implementing 

regulations sanctions [sic] 

nondesignation of habitat when 

designation would be merely less 

beneficial to the species than another 

type of protection.’’). 

Regarding the comment that the 

critical habitat designation is redundant 

with existing habitat protections for 

polar bears, we disagree. Arctic ringed 

seals may use some of the same habitat 

in the northern Bering, Chukchi, and 

Beaufort seas used by polar bears, but 

the critical habitat designation and 

listing protections for polar bears are 

established to promote the conservation 

and recovery of that species specifically. 

Further, polar bear critical habitat does 

not explicitly protect the physical and 

biological features essential to the 

conservation of the Arctic ringed seal. 

Section 7 consultations involving polar 

bear critical habitat therefore would not 

address impacts to Arctic ringed seals’ 

habitat. 

Comment 55: ADF&G asserted that 

designating very large areas as critical 

habitat dilutes or undermines the 

conservation benefits it supplies 

compared with targeting designations 

toward areas with higher documented 

conservation value, and results in 

designations with little or no benefits to 

listed species. They stated that this is 

because the evaluation of whether a 

proposed Federal action is likely to 

destroy or adversely modify critical 

habitat under section 7 of the ESA is 

based on impacts to the whole of the 

designated critical habitat. They argued 

that as a result, when evaluating the 

impacts of a Federal action on a large 

critical habitat designation in a section 

7 consultation, negative impacts to a 

‘‘genuinely critical’’ area within a 

species’ range are ‘‘swamped’’ by the 

sheer size of the designated critical 

habitat. They stated that therefore, the 

proposed designation for Arctic ringed 

seals would simply add a regulatory 

layer under section 7 of the ESA, while 

providing little or no educational or 

other benefits. They added that their 

analysis provided to NMFS to inform 

the designation of critical habitat for 

listed DPSs of humpback whales 

demonstrates that designating very large 

areas will likely provide no 

conservation benefits to these 

populations while adding unnecessary 

regulatory burdens to oil and gas 

operations, transportation, and other 

uses. Two commenters also stated that 

because we do not anticipate that 

additional requests for project 

modifications will result specifically 

from designation of critical habitat for 

the Arctic ringed seal, the designation 

would provide little or no conservation 

benefit to the species beyond what is 

already afforded by virtue of its listing 

under the ESA. 

Response: The ESA requires us to 

designate critical habitat to the 

maximum extent prudent and 

determinable. Critical habitat within the 

geographical area occupied by the 

species as defined in section 3 of the 

ESA includes areas on which are found 

those physical or biological features that 

are essential to the conservation of the 

listed species and may require special 

management considerations or 

protection (16 U.S.C. 1532(5)(A)). The 

term ‘‘conservation’’ is further defined 

in section 3 of the ESA as the use of all 

methods and procedures necessary to 

bring any endangered or threatened 

species to the point at which their 

protection under the ESA is no longer 

necessary (16 U.S.C. 1532(3)). Therefore, 

a critical habitat designation must be 

determined based on consideration of 

the nature of the habitat features that 

support the life history and 

conservation needs of the particular 

listed species. As we discussed in the 

revised proposed rule and our response 

to Comment 25, Arctic ringed seals have 

a widespread distribution, their 

movements and habitat use are strongly 

influenced by the seasonality of sea ice 

cover, and they can range widely. 

Moreover, the habitat features they rely 

upon, in particular the sea ice essential 

features, are dynamic and variable on 

both spatial and temporal scales. As 

such, we identified where the essential 

features occur at a coarse scale, because 

this is as much specificity as the best 

scientific data available allow. 

Our critical habitat determination for 

the Arctic ringed seal reflects these 

factors, and our analysis is appropriate 

and sufficient to designate critical 

habitat as defined by the ESA. Although 

we reviewed the analysis ADF&G 

provided to NMFS to inform the 


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designation of critical habitat for listed 

DPSs of humpback whales, as we 

discussed in detail in the preamble to 

the final rule for that designation (75 FR 

21082, April 21, 2021), the ESA, 

implementing regulations at 50 CFR 

424.12, and case law guide us in our 

evaluation of areas that meet the 

definition of critical habitat, and none of 

these sources provide support for the 

analytical approach advocated by the 

commenter. 

We also disagree with the assumption 

that the conservation benefits of critical 

habitat are strictly limited to any 

changes to Federal actions that are made 

to avoid destruction or adverse 

modification of critical habitat. Once 

designated, critical habitat provides 

specific notice to Federal agencies and 

the public of the geographic areas and 

physical and biological features 

essential to the conservation of the 

species, as well as information about the 

types of activities that may reduce the 

conservation value of that habitat. Thus, 

designation of critical habitat can 

inform Federal agencies of the habitat 

needs of the species, which may 

facilitate using their authorities to 

support the conservation of the species 

pursuant to section 7(a)(1) of the ESA, 

including to design proposed projects in 

ways that avoid, minimize, and/or 

mitigate adverse effects to critical 

habitat from the outset. As discussed in 

the Benefits of Designation section of 

this final rule and in more detail in the 

Final Impact Analysis report, in 

addition, other benefits are recognized, 

such as public awareness of the status 

of the species and its habitat needs, 

which can stimulate research, as well as 

outreach and education activities. 

Comment 56: One commenter 

expressed concern that because we 

indicated that the critical habitat 

designation is not likely to result in 

additional requests for project 

modifications, we have made a 

preemptive determination that no 

changes to projects will be necessary in 

any future section 7 consultation to 

avoid adverse modification or 

destruction of the critical habitat. The 

commenter stated that this also conveys 

the impression that NMFS will not 

meaningfully evaluate the effects of 

proposed Federal action on the critical 

habitat in future consultations. The 

commenter added that given the way 

that NMFS conducts consultations on a 

case-by-case basis with an extremely 

restrictive definition of cumulative 

effects, and that there have been very 

few consultations in which NMFS has 

issued an adverse modification finding, 

it is unlikely that the designation will 

provide additional protection to the 

ecosystem upon which Arctic ringed 

seals depend. 

Response: We disagree with these 

comments. We are making no 

preemptive determinations about future 

section 7 consultations in this critical 

habitat designation. While we cannot 

predict the outcome of future 

consultations with certainty, on the 

basis of the best scientific and 

commercial data available, we have not 

identified a circumstance in which this 

critical habitat designation would be 

likely to result in additional requests for 

project modifications in section 7 

consultations. This does not mean that 

Federal actions will not undergo 

meaningful and rigorous review through 

the section 7 consultation process or 

that project modifications specifically 

designed to avoid impacts to critical 

habitat could never occur. Rather, it 

means only that we have no basis to 

conclude such modifications are likely 

to occur and that therefore incremental 

impacts of this critical habitat 

designation should be forecasted in our 

impacts analysis. Based on the best 

information available regarding 

potential future Federal actions, and 

given the high level of existing baseline 

protections for the seals under the 

MMPA and due to their listing under 

the ESA, project modifications made to 

lessen impacts to ringed seals or to 

avoid jeopardy would likely encompass 

measures needed to reduce impacts to 

(and potentially avoid adverse 

modification of) critical habitat. That is, 

while section 7 consultations may result 

in project modifications, such 

modifications would likely be necessary 

to protect ringed seals in addition to 

protecting the essential features on 

which the species relies. 

In addition, as we explained in our 

response to Comment 55, the benefits of 

critical habitat designation cannot 

simply be measured by the outcome of 

section 7 consultations, as there are 

other benefits of critical habitat that 

extend beyond the direct benefits 

through section 7 consultations. 

Regarding consideration of cumulative 

effects, in formulating our biological 

opinion as to whether or not a particular 

proposed Federal action is likely to 

jeopardize the continued existence of 

listed species or result in the 

destruction or adverse modification of 

critical habitat, our regulations at 50 

CFR 424.14 require that we assess the 

status of the species and the critical 

habitat (including threats and trends), 

the environmental baseline of the action 

area, and cumulative effects, which in 

this context are defined to be the effects 

of any unrelated future non-Federal 

activities that are reasonably certain to 

occur within the action area. The 

summary of the status of the critical 

habitat considers the historical and past 

impacts of activities across time and 

space. The effects of any particular 

action are thus evaluated in the context 

of this assessment, which incorporates 

the effects of all current and previous 

actions. This avoids situations where 

each individual action is viewed as 

causing only relatively minor adverse 

effects but, over time, the aggregated 

effects of these actions would erode the 

conservation value of the critical habitat 

(81 FR 7214, February 11, 2016; 84 FR 

44976, August 27, 2019). 

Comment 57: A number of 

commenters stated that critical habitat is 

important to supporting the 

conservation of the Arctic ringed seals. 

Some commenters noted the greater 

protective standard afforded to critical 

habitat under section 7 of the ESA will 

help address threats associated with 

activities such as oil and gas 

development, which can help increase 

the species’ resilience to climate change. 

Some commenters also stated that 

critical habitat provides important 

public outreach and education 

opportunities that enhance 

conservation, including furthering 

awareness of the impacts of climate 

change, the plight of listed species, and 

the conservation value of critical habitat 

areas. In addition, some commenters 

suggested that benefits resulting from 

the designation could extend to other 

species that rely on the habitat, such as 

polar bears and bearded seals. 

Response: We agree with these 

comments. 

Comment 58: One commenter stated 

that the proposed designation would 

provide no meaningful public education 

benefits because Alaska Native 

communities and regulated industries 

that undertake activities within the 

potentially designated areas are already 

fully familiar with the species and have 

implemented protective measures 

pursuant to the MMPA for decades, and 

these areas are otherwise largely devoid 

of human activity. Another commenter 

also questioned how non-regulatory 

benefits discussed in the revised 

proposed rule, such as enhanced 

conservation or indirect benefits to 

subsistence users, would actually 

materialize, and stated that the overlap 

of critical habitat and its protections for 

Arctic ringed seals, bearded seals, and 

polar bears seems purely redundant and 

without the benefit of any additional 

protection. 

Response: As discussed in the 

Benefits of Designation section of this 

final rule, and in more detail in the 

Final Impact Analysis Report, we 


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conclude that designation of critical 

habitat for Arctic ringed seals can have 

a number of indirect benefits. We 

recognize that Alaska Native subsistence 

hunting communities adjacent to the 

Beaufort, Chukchi, and northern Bering 

seas are very familiar with the species 

and its habitat, as are certain other 

entities operating within Arctic ringed 

seal critical habitat. Still, it is our 

experience that after critical habitat has 

been designated for listed species, 

increased awareness of the habitat needs 

of listed species on the part of the 

public as well as planners, government 

entities, and others, has promoted the 

conservation of the species. For 

example, the designation provides 

specific notice of the habitat features 

essential to the conservation of Arctic 

ringed seals, which can facilitate the 

design of proposed projects by Federal 

agencies in ways that minimize or avoid 

effects to critical habitat. However, we 

also note that the ESA requires 

designation of critical habitat for listed 

species to the maximum extent prudent 

and determinable, regardless of 

protections afforded by other 

environmental laws or increased public 

awareness of the habitat needs of listed 

species associated with critical habitat 

designations. 

Comments Concerning Exclusions 

Comment 59: Several commenters 

expressed opposition to the proposed 

exclusion of an area north of the 

Beaufort Sea shelf from critical habitat 

based on national security impacts and 

requested that we reduce or better 

justify this exclusion. The commenters 

stated that we did not make clear how 

the Navy’s activities would be disrupted 

by critical habitat in ways that could 

negatively affect national security. A 

couple commenters stated that the large 

size of the exclusion and the limited 

description of the Navy’s activities gives 

the impression that those activities may 

not be consistent with our description of 

them as localized or small in scale. One 

commenter also stated that in in 

weighing the national security impacts 

against conservation benefits of 

potential designation we relied on the 

relative lack of data, while downplaying 

that the excluded area includes about 41 

percent of the habitat north of the 

Beaufort Sea shelf. In addition, a couple 

commenters stated that we failed to 

discuss that as sea ice diminishes, the 

area proposed for exclusion will become 

an increasingly greater portion of usable 

habitat for Arctic ringed seals. One 

commenter also stated that we should 

address whether and to what extent the 

Navy’s experience with North Atlantic 

right whale critical habitat is relevant. 

Additionally, one commenter requested 

that, at a minimum, NMFS commit to 

collecting the data needed to fully 

analyze the impacts the exclusion will 

have on Arctic ringed seals and 

revisiting our determination regarding 

the requested exclusion at a later date. 

Response: As we explained in the 

revised proposed rule, to weigh the 

national security impacts against 

conservation benefits of a potential 

critical habitat designation, we 

considered the size of the requested 

exclusion and the amount of overlap 

with the specific area meeting the 

definition of critical habitat for the 

Arctic ringed seal; the relative 

conservation value for Arctic ringed 

seals of the area requested for exclusion; 

the likelihood that the Navy’s activities 

would trigger section 7 consultation; the 

likelihood that Navy activities would 

need to be modified to avoid adverse 

modification or destruction of critical 

habitat; and the likelihood that other 

Federal actions may occur that would 

no longer be subject to section 7 

consultation over impacts to critical 

habitat if the particular area were 

excluded from the designation. 

In developing this final rule, we 

followed up with the Navy regarding the 

location of the area it requested be 

excluded from the critical habitat 

designation. The Navy clarified that the 

spatial data it previously provided to 

NMFS to map the requested exclusion 

inadvertently contained outdated 

information that did not reflect the full 

southern extent of the particular area 

they intended to request be excluded 

from the designation, which includes 

waters about 50 nm south of the 

southern boundary of the proposed 

exclusion area east of 150° W longitude. 

In addition, the Navy requested that the 

western boundary of the proposed 

exclusion be extended one degree west 

to account for Office of Naval Research 

activities within this area. We therefore 

evaluated whether there was a 

reasonably specific justification 

indicating that designating the area 

requested for exclusion as critical 

habitat, with revision of the southern 

and western boundaries of the proposed 

exclusion, would have a probable 

incremental impact on national security. 

In the Navy’s written communications 

in support of their request for exclusion 

of this particular area, they pointed to 

the national security implications of the 

trend toward the Arctic Ocean becoming 

increasingly accessible and navigable, 

and stated that they are planning to 

address future Arctic region security 

concerns through implementation of the 

Navy’s 2019 Strategic Outlook for the 

Arctic, and as described in its 

subsequent Strategic Blueprint for the 

Arctic released in 2021. As we 

discussed in the revised proposed rule, 

the Navy indicated that it currently 

conducts training and testing exercises 

on and below the sea ice within the area 

requested for exclusion (which the Navy 

refers to as Ice Exercises (ICEXs)) that 

support the Navy’s national security 

mission. The Navy explained that due to 

the need for stable ice, flights are 

conducted over the area requested for 

exclusion to find a prospective location 

for a given ICEX camp, and then on-ice 

surveys are performed to determine the 

final location immediately prior to 

buildup of the camp (for additional 

details, see National Security Impacts 

section). The Navy explained that, given 

the variable nature of sea ice suitable to 

support the establishment of ice camps, 

the Navy’s ICEX program has routinely 

required flexibility for location of the 

area within which an ice camp may be 

established. The Navy further stated that 

the Navy Special Warfare Command 

(NSWC) units conduct training activities 

in the same geographic region, and 

although current training is outside of 

the proposed critical habitat, as NSWC 

training is expanding, the Navy has 

concerns that the designation could 

affect its ability to conduct activities in 

certain locations. The Navy also noted 

that the Office of Naval Research 

conducts research testing activities in 

the deep waters of the Beaufort Sea with 

acoustic sources, most of which operate 

autonomously for periods of days to 

months under the ice, and the use of 

icebreaking ships to deploy and retrieve 

these sources, and expressed concern 

that the designation could impact the 

ability to deploy and retrieve 

equipment, or to utilize acoustic sources 

in the manner necessary to fulfill 

research objectives. The Navy indicated 

that additional training and testing 

activities are expected in the Arctic 

region, which may occur during or 

independent of an ICEX. The Navy 

stated that such activities can include 

the surfacing of a submarine through the 

ice, the set-up of expeditionary tent 

encampments, creation of holes in the 

ice to deploy equipment, and the 

establishment of an expeditionary 

runway. These activities are also likely 

to include vessel movements, 

icebreaking, and transport of logistics by 

air and sea in support of future military 

readiness activities. Testing activities 

may include air platform/vehicle tests, 

missile testing, gunnery testing, and 

anti-submarine warfare tracking testing. 

In response to the concerns expressed 

by commenters we followed up with the 

Navy and requested additional 


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information regarding the size of the 

area the Navy requested be excluded 

and how the Navy’s activities would be 

impacted by the critical habitat 

designation. As discussed in the 

Exclusion Based on National Security 

Impacts section of this final rule, the 

Navy provided further details on the 

specific criteria it requires to conduct 

ICEX activities and the ways in which 

its training activities could affect the sea 

ice essential features in the future, 

possibly resulting in requests for project 

modifications. The Navy also reiterated 

that if any activities were curtailed or 

modified to avoid impacts to critical 

habitat, it could not relocate those 

activities to another suitable location 

outside critical habitat. In addition, with 

regard to Office of Naval Research 

activities, the Navy explained that these 

research activities include the 

deployment of moored acoustic sources, 

which may involve the use of an 

icebreaking vessel for the deployment or 

recovery of equipment. The Navy stated 

that because locations to deploy and 

recover equipment are pre-selected and 

there is little flexibility, there is 

similarly little to no flexibility in 

conducting icebreaking. The Navy 

discussed that for this reason, if NMFS 

required modifications to these research 

activities in a future section 7 

consultation to avoid impacts to the 

critical habitat—such as seasonal or 

spatial avoidance areas or not breaking 

ice which has certain conditions—it 

would have significant impact on these 

activities. The Navy stated that 

understanding changing Arctic 

conditions is critical for maintaining 

U.S. naval effectiveness and ensuring 

national security capabilities. 

We recognize that, as discussed in the 

revised proposed rule, data currently 

available on Arctic ringed seal use of the 

area requested for exclusion 

(particularly for the northernmost 

portion) are limited. Thus, although the 

area requested for exclusion contains 

one or more of the essential features of 

the Arctic ringed seal’s critical habitat, 

data are limited to inform our 

assessment of the relative value of this 

area to the conservation of the species. 

Nevertheless, we must make a 

determination regarding the requested 

exclusion based on the best scientific 

data available. We disagree with the 

comment suggesting that we 

downplayed the size of the requested 

exclusion area, as we provided clear 

information regarding the location and 

size of this particular area in the revised 

proposed rule and fully considered this 

information in weighing conservation 

benefits of potential designation against 

national security impacts. In addition, 

in this final rule, we have updated the 

information regarding the size of the 

revised exclusion area (see above), 

which now includes about 60 percent of 

the habitat north of the Beaufort Sea 

shelf. Although we recognize that as sea 

ice diminishes the excluded area will 

become an increasingly greater portion 

of usable habitat for Arctic ringed seals, 

and we considered this in our 

assessment of the benefit of designating 

this area as critical habitat (and have 

clarified this in the Exclusion Based on 

National Security Impacts section), 

commenters did not provide, and we are 

not aware of, any new information that 

would further inform our assessment. 

Because the requested exclusion 

comprises a deep area of marine habitat 

north of the continental shelf, few if any 

other Federal actions are expected to 

occur there that would no longer be 

subject to ESA section 7 consultations if 

the area were excluded from 

designation. The Navy and all other 

Federal agencies have an existing 

obligation to consult with NMFS under 

section 7 of the ESA to ensure that 

Federal actions are not likely to 

jeopardize the continued existing of the 

Arctic ringed seal. 

We continue to find that the Navy has 

provided a reasonably specific 

justification to support the requested 

exclusion (with revision of the southern 

and western boundaries). Consistent 

with our Section 4(b)(2) Policy (81 FR 

7226, February 11, 2016), we gave great 

weight to the Navy’s concerns in 

analyzing the benefits of exclusion. 

Given the Navy’s specific concern 

regarding potential impacts of the 

critical habitat designation on its 

military readiness activities that occur 

within the area requested for exclusion, 

we continue to find that the benefits of 

excluding this particular area due to 

national security impacts outweigh the 

benefits of designating this area as 

critical habitat for the Arctic ringed seal. 

Though we have not identified any 

specific circumstances in which this 

critical habitat designation would be 

likely to result in requests for project 

modifications, we acknowledge such 

modification requests could occur in the 

future and defer to the Navy’s 

assessment that any possibility of 

modifications to its activities in this 

particular area could have adverse 

impacts on activities of great importance 

to national security. Regarding the 

comment requesting that we address the 

extent to which the Navy’s experience 

with North Atlantic right whale critical 

habitat (which we noted in the revised 

proposed rule) is relevant in the context 

of the Arctic ringed seal critical habitat 

designation, although we considered all 

of the information provided by the Navy 

in support of its exclusion request, this 

was not a significant aspect of our 

evaluation of the Navy’s request. We 

independently consider all requests for 

national security exclusions under 

4(b)(2) based on the specifics of the 

particular area being proposed for 

exclusion and the importance of that 

area to the conservation of the relevant 

listed species. 

Failure to designate the excluded area 

as critical habitat is not expected to 

result in the extinction of the species 

because the area is small in comparison 

to the entirety of the critical habitat, and 

importantly, because Federal actions in 

this area—which are expected to be few 

aside from the Navy’s—are still be 

subject to the requirements of section 

7(a)(2) of the ESA to assess threats to 

Arctic ringed seals (including habitat 

related threats). We will continue to 

work with the Navy through the section 

7 consultation process to minimize the 

impacts of the Navy’s testing and 

training activities on Arctic ringed seals. 

Should additional information become 

available that indicates revision of the 

designation may be warranted, we may 

consider revising the designation 

accordingly. However, we cannot 

commit to collecting additional data and 

revisiting our determination regarding 

the exclusion request at a later date, as 

we cannot predict when such 

information may become available. 

Further, although we agree generally 

that additional research and monitoring 

are needed to fill in knowledge gaps, as 

well as to continue to monitor the status 

of the species, the ESA requires us to 

designate critical habitat based on the 

best data available, and we have done so 

in this final rule. 

Comment 60: The Marine Mammal 

Commission stated that it was unclear 

whether we determined that the area 

under consideration for exclusion is not 

subject to ESA section 4(a)(3)(B)(i) 

because it is not owned, controlled, or 

designated for use by the Navy, or for 

some other reason. They recommended 

that we clarify whether an INRMP or 

similar plan is in place that addresses 

potential impacts on ringed seals or 

other ESA-listed species in the area 

proposed to be excluded. 

Response: We proposed to exclude 

the particular area north of the Beaufort 

Sea shelf on the basis of national 

security impacts and did not rely on a 

determination that the area was 

ineligible for designation under section 

4(a)(3)(B)(i) of the ESA, which provides 

that certain areas cannot meet the 

definition of ‘‘critical habitat’’ if they are 


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covered by a relevant INRMP that has 

been determined in writing to provide a 

benefit to the species (16 U.S.C. 

1533(a)(3)(B)(i)). Thus, the status of an 

INRMP is not relevant to this exclusion 

determination. 

Comment 61: A group of oil and gas 

trade associations stated that all critical 

habitat proposed for designation should 

be excluded, or alternatively, at least all 

areas in which human activities occur, 

or will foreseeably occur, should be 

excluded from designation because of 

the importance to the Alaska economy 

and national energy needs of oil and gas 

exploration and development, and the 

strong potential for the designation to 

impose unnecessary costs and litigation 

risks on the oil and gas industry, Alaska 

Native communities, and state and local 

governments. They asserted that the 

economic impacts of designation 

substantially outweigh any very 

marginal benefits of designation, and 

stated that: (1) Oil and gas activities, as 

well as Alaska Native subsistence 

harvest of ringed seals, are not expected 

to threaten the species or its habitat in 

the foreseeable future, as evidenced in 

the final rule listing the Arctic ringed 

seal as threatened; (2) oil and gas 

activities, as well as other activities, are 

regulated pursuant to the MMPA and 

other Federal and state laws to ensure 

that they have no more than a negligible 

impact on ringed seals; and (3) the 

designation will result in no benefits to 

the species under section 7 of the ESA 

in that there are no measures or 

protections necessary for conservation 

of ringed seals that are not already 

imposed by the MMPA, and NMFS does 

not anticipate that the designation will 

result in additional project 

modifications. 

Response: Section 4(b)(2) of the ESA 

provides that the Secretary shall 

designate critical habitat on the basis of 

the best scientific data available after 

taking into consideration the economic 

impact, impact on national security, and 

any other relevant impacts of specifying 

any particular area as critical habitat. 

The economic analysis included in the 

Final Impact Analysis Report was 

developed to address the potential 

economic impacts of the critical habitat 

designation. As discussed in the 

Economic Impacts section of this final 

rule and detailed in the Final Impact 

Analysis Report, the total incremental 

costs associated with the critical habitat 

designation for the Arctic ringed seal 

within the 10-year post-designation 

timeframe, in discounted present value 

terms, were estimated at $714,000 

(discounted at 7 percent) to $834,000 

(discounted at 3 percent). About 83 

percent of the incremental costs 

attributed to the critical habitat 

designation are expected to accrue from 

ESA section 7 consultations associated 

with oil and gas related activities in the 

Chukchi and Beaufort seas. To avoid 

understating the cost estimates, we 

assumed that a high projected level of 

oil and gas activity will occur annually, 

although such a high level of activity is 

unlikely to occur in each and every 

year. After thoroughly considering the 

available information, we have 

concluded that the potential economic 

impacts associated with this designation 

are modest both in absolute terms and 

relative to the level of economic activity 

expected to occur in the affected area. 

This has not changed from the proposed 

rule. 

We disagree with the characterization 

of the benefits of the critical habitat 

designation as ‘‘very marginal.’’ The 

designation of critical habitat and 

identification of essential features will 

provide substantive benefits to the 

conservation of Arctic ringed seals. At a 

minimum, the designation ensures that 

Federal agencies, through the 

consultation process under section 7 of 

the ESA, consider the impacts of their 

projects and activities on Arctic ringed 

seal critical habitat, and will focus such 

future consultations on the essential 

features of the critical habitat. 

Designation of critical habitat thus 

provides clarity and consistency to 

Federal action agencies regarding 

specific areas and habitat features that 

should be considered and addressed 

during these consultations. Designation 

of critical habitat can also inform 

Federal agencies of the habitat needs of 

the species, which may facilitate using 

their authorities to support the 

conservation of the species pursuant to 

section 7(a)(1) of the ESA, including to 

design proposed projects in ways that 

avoid, minimize, and/or mitigate 

adverse effects to critical habitat. Other 

benefits of the designation include 

enhanced public awareness of the 

habitat needs of the species, which can 

help focus conservation efforts (for 

additional details, see Benefits of 

Designation section, as well as the Final 

Impact Analysis Report). We have 

therefore not exercised the discretion 

delegated to us by the Secretary to 

conduct an exclusion analysis to further 

consider and weigh the benefits of 

designation and exclusion of any 

particular area based on economic 

impacts. 

Comment 62: A group of oil and gas 

trade associations stated that we should 

clarify that the proposed regulatory 

language indicating that permanent 

manmade structures such as boat ramps, 

docks, and pilings that were in 

existence by the effective date of the 

rule are not part of critical habitat also 

applies to existing infrastructure 

associated with North Slope and 

adjacent Outer Continental Shelf (OCS) 

oil and gas activities. In addition, they 

stated that we should exclude from 

designation the infrastructure, ice roads, 

trails, pads, and surrounding waters 

necessary to maintain safe access to the 

facilities identified and described in 

their comments, including Milne Point 

Unit F-Pad, Oliktok Point and Spy 

Island Drill Site, Oooguruk Drill Site, 

and Northstar Unit Seal Island). They 

stated that the benefits of excluding 

these areas from designation far 

outweigh any benefits of designation, 

and are justified because they are 

fundamental to continuity and safety of 

oil and gas operations and: (1) The 

identified areas are not essential to the 

conservation of ringed seals, nor do they 

require special management 

considerations or protection; (2) the 

areas are extremely small relative to the 

amount of habitat available to ringed 

seals; and (3) these types of facilities 

have been constructed and maintained 

for decades without any indication that 

these exclusions would impede 

recovery or have any population level 

impacts on ringed seals. 

Response: With regard to the 

proposed regulatory language indicating 

that permanent manmade structures in 

existence are not a part of the 

designation, we find that this language 

provides sufficient clarity, as it applies 

to any such permanent manmade 

structures, including those in existence 

that are associated with oil and gas 

activities, and this final rule includes 

that same language. While activities 

such as dredging and screeding occur in 

association with the areas requested for 

exclusion, this does not necessarily 

indicate that there are likely to be 

significant additional costs or other 

indirect impacts from including these 

areas in the designation. Where there is 

a Federal nexus for an activity occurring 

in these areas, we expect that there will 

in most, if not all cases, be an existing 

need to address the impacts of these 

activities on Arctic ringed seals 

themselves. In other words, for activities 

such as ice road construction and 

maintenance, the requirement to consult 

under section 7 of the ESA would be 

triggered even in the absence of Arctic 

ringed seal critical habitat. These 

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

absence of a critical habitat designation. 

While Federal actions that may affect 

the essential features of Arctic ringed 

seal critical habitat will require an 


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analysis to ensure that these actions are 

not likely to result in the destruction or 

adverse modification of the critical 

habitat, we do not expect that this will 

require substantial additional time or 

resources, especially for new 

consultations. We have therefore not 

exercised the discretion delegated to us 

by the Secretary to conduct an exclusion 

analysis to further consider and weigh 

the benefits of designation and 

exclusion of the identified areas based 

on economic impacts. Further, under 

the ESA, the relevant question is 

whether the identified areas contain 

physical or biological features essential 

to the conservation of Arctic ringed 

seals, not whether use of these areas is 

essential to conservation of ringed seals 

or whether these areas (as opposed to 

the features within them) require special 

protection. Because we find that one or 

more essential features occur in all parts 

of the specific area designated as critical 

habitat, to the extent these comments 

are suggesting the identified areas do 

not meet the definition of critical 

habitat, we disagree. We note that as we 

explained previously, the shoreward 

boundary of the critical habitat 

designation is now identified as the 3- 

m isobath (relative to MLLW). Thus a 

portion of the areas the commenter 

requested be excluded are not included 

in the final designation. 

Comment 63: The North Slope 

Borough stated that we should exclude 

from designation 10-mile buffer zones 

around all North Slope villages and all 

lands conveyed to the North Slope 

Borough or Alaska Native corporations 

in order to prevent detrimental 

economic impacts and possible delays 

in municipal-type projects or other 

developments that require Federal 

approval or rely on Federal funding. 

They indicated that such activities 

include, but are not limited to, erosion 

protection, road construction, water 

treatment activities, port infrastructure, 

and municipal expansion. They stated 

that although these activities may not 

rise to the level of adverse modification, 

Borough communities and residents 

should not be forced to bear the 

additional section 7 consultation costs 

or possible delays in development of 

projects associated with maintaining 

basic services. In addition, they stated 

that we should exclude from 

designation similar areas around 

locations that are currently being 

developed for oil and gas, as a 

significant portion of the Borough’s 

revenue is derived from taxes on oil and 

gas infrastructure. They also commented 

that without the collaboration of seal 

hunters and Alaska Native communities 

who live in those areas, NMFS would be 

unable to adequately monitor Arctic 

ringed seals. They suggested that 

designating critical habitat adjacent to 

coastal villages could alienate residents 

of subsistence communities, and thus 

there is a real collaborative benefit to 

such exclusions. The Ice Seal 

Committee similarly stated that we must 

exclude from designation aquatic areas 

around villages, Alaska Native 

corporation lands, and other lands 

where development and infrastructurerelated activities are occurring in 

consideration of the harmful effects of 

the designation on Alaska Native 

communities. Additionally, ADF&G 

requested that a distance of 20 miles 

around communities and the Beaufort 

Sea coast be excluded from designation 

to avoid unnecessary disproportionate 

regulatory burdens to those areas that 

are not balanced by the limited 

conservation benefits provided to Arctic 

ringed seals. 

Response: While we recognize that 

the proximity of a number of coastal 

communities and certain other 

developed sites to Arctic ringed seal 

critical habitat raises concerns about 

potential impacts on human activities, 

our final economic analysis did not 

indicate any disproportionate or 

significant economic impacts are likely 

to result from the designation. The 

critical habitat designation includes no 

regulatory restrictions on human 

activities, and where no Federal 

authorization, permit, or funding is 

involved, activities are not subject to 

section 7 consultation. For the types of 

actions we expect to occur in coastal 

villages or on Alaska Native lands that 

have a Federal nexus, based on our 

experience consulting on such 

activities, we do not expect that the 

additional need to consult on the 

critical habitat would result in any 

additional or novel project 

modifications beyond those that result 

from consultations that are already 

required due to the threatened status of 

the species and the MMPA (see our 

response to Comment 49). We have 

therefore not exercised the discretion 

delegated to us by the Secretary to 

conduct an exclusion analysis to further 

consider and weigh the benefits of 

designation and exclusion of buffers 

around the requested areas based on 

economic or any other relevant impacts. 

In addition, as we explained previously, 

the shoreward boundary of the critical 

habitat designation is now identified as 

the 3-m isobath (relative to MLLW), 

rather than as the line of MLLW 

identified in the revised proposed rule. 

Thus, waters adjacent to coastal villages 

within the 10-mile and 20-mile 

distances requested for exclusion by the 

commenters overlap to lesser extent 

with the final designation. 

With regard to the comment 

concerning the effect of the critical 

habitat designation on NMFS’s working 

relationships with seal hunters and 

Alaska Native communities, we 

recognize that the Alaska Natives make 

important contributions to the 

conservation and management of Arctic 

ringed seals. NMFS works closely with 

the North Slope Borough and other 

partners to implement co-management 

and conserve marine mammals. We 

understand that a number of parties 

have concerns about ESA listings and 

critical habitat designations, but we are 

optimistic that such concerns will not 

impair our working relationships with 

co-management partners and other 

stakeholders over the long term, 

especially given our continued efforts to 

provide accurate information regarding 

the effects of this designation. 

Regarding exclusions from critical 

habitat of buffers around locations 

where oil and gas development is 

occurring, we do not consider exclusion 

from critical habitat to be appropriate in 

this case. The primary industrial 

activities occurring within Arctic ringed 

seal critical habitat are associated with 

the oil and gas industry. Areas of 

importance to the oil and gas industry 

within the critical habitat include the 

physical and biological features 

essential to the conservation of Arctic 

ringed seals, and there are conservation 

benefits to Arctic ringed seals if the 

areas requested for exclusion remain in 

the designation. Moreover, the presence 

of designated critical habitat for other 

marine mammal species has not 

resulted in the inability of the oil and 

gas industry to engage in exploration, 

development, and production activities. 

Regarding benefits of the designation, 

also see our response to Comment 15. 

Comment 64: Two commenters stated 

that we should exclude from 

designation areas that are ice-free at 

certain times of the year and that 

support activities that are vital and 

necessary for residents in northern 

coastal communities, such as shipping 

lanes used by vessels to transport the 

vast majority of goods and services, to 

ensure that there are no impacts on such 

activities. One commenter stated that 

from approximately mid-June in some 

regions through September this 

shipping not only transports goods, but 

also serves as a cultural link among 

coastal Alaska Native communities. 

Response: The critical habitat 

designation would not preclude or 

restrict shipping activities. Section 7 


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consultation requirements apply only 

when a Federal action is involved (i.e., 

an action authorized, funded, or carried 

out by a Federal agency). We are not 

aware of a Federal nexus for the vessel 

traffic referred to by the commenters 

such that this activity would be subject 

to section 7 consultation. As 

summarized in the Economic Impacts 

section of this final rule, and discussed 

in more detail in the Final Impact 

Analysis Report, we anticipate that the 

impacts of the designation will be 

limited to incremental administrative 

effort to consider potential adverse 

modification of Arctic ringed seal 

critical habitat as part of future section 

7 consultations, and that most of these 

consultations will be associated with oil 

and gas activities. Therefore, we find 

that there is not a clear basis to exercise 

the discretion delegated to us by the 

Secretary to conduct an exclusion 

analysis to further consider and weigh 

the benefits of designation and 

exclusion of shipping lanes. 

Legal and Procedural Comments 

Comment 65: Several commenters 

cited our regulations at 50 CFR 

424.12(a)(1)(ii) in stating that we should 

determine that designation of critical 

habitat is not prudent for the Arctic 

ringed seal, in particular, because the 

primary threats to the species stem 

solely from climate change, and 

therefore, they cannot be addressed 

through management actions resulting 

from section 7 consultations. 

Commenters also referred to the 

preamble to the 2019 final rule that 

revised portions of the regulations at 50 

CFR part 424, which discussed this 

newly added provision relative to listed 

species experiencing threats stemming 

from climate change. Additionally, one 

commenter pointed to our statement in 

the revised proposed critical habitat rule 

regarding our inability to draw a causal 

linkage between any particular single 

source of GHG emissions and 

identifiable effects on the proposed 

essential features. Commenters added 

that there is a strong basis for 

determining that designation would not 

be prudent because: (1) The Arctic 

ringed seal is sufficiently protected 

under existing laws and regulations, 

including the MMPA; (2) the species is 

not threatened or otherwise negatively 

impacted by any of the regulated 

activities that occur within its range; (3) 

NMFS anticipates that the designation 

will not result in additional project 

modifications through section 7 

consultations; and (4) there are 

insufficient data available to support the 

identification of critical habitat. ADF&G 

also contended that critical habitat is 

not determinable, citing some similar 

considerations. The Ice Seal Committee 

likewise indicated that they believe 

designation of critical habitat for the 

Arctic ringed seal is not necessary or 

prudent at this time. 

Response: Section 4(a)(3)(A) of the 

ESA requires that we designate critical 

habitat to the maximum extent prudent 

and determinable at the time a species 

is listed. Finding that critical habitat is 

not determinable at the time of listing 

allows NMFS to extend the deadline for 

finalizing a critical habitat designation 

by one year under section 4(b)(6)(C)(ii) 

of the ESA (16 U.S.C. 1533(b)(6)(C)(ii)). 

At the end of the 1-year extension, 

NMFS must use the best scientific data 

available to make the critical habitat 

determination. When we listed the 

Arctic ringed seal as threatened in 

December 2012, critical habitat was not 

determinable. Subsequently, we 

researched, reviewed, and compiled the 

best scientific data available to develop 

a critical habitat designation for Arctic 

ringed seals. Critical habitat is now 

determinable. 

With regard to making a ‘‘not 

prudent’’ determination, our regulations 

at 50 CFR 424.12(a)(1) provide a nonexhaustive list of circumstances in 

which we may, but are not required to, 

find that it would not be prudent 

designate critical habitat. In 2019, 

several revisions to this regulatory 

provision were finalized, including the 

addition of the following circumstance, 

cited by commenters, in 

§ 424.12(a)(1)(ii): The present or 

threatened destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the ESA (84 FR 45020, August 27, 2019). 

Here, the Arctic ringed seal is 

threatened throughout all of its range by 

ongoing and projected reductions in sea 

ice habitat (77 FR 76706, December 28, 

2012). Further, the threats to the 

essential features of Arctic ringed seal 

critical habitat do not stem solely from 

causes that cannot be addressed through 

management actions from consultations 

under section 7(a)(2) of the ESA. Rather, 

as we discussed in the revised proposed 

rule, we identified four primary sources 

of threats to the essential features of 

Arctic ringed seal critical habitat— 

climate change, oil and gas activity, 

marine shipping and transportation, and 

commercial fisheries—that may require 

special management considerations or 

protection for the essential features. The 

situation for the Arctic ringed seal thus 

differs from the scenarios discussed in 

the preamble to the 2019 revisions to 

the ESA regulations in which threats to 

the listed species’ habitat stem solely 

from climate change. Additionally, if a 

listed species does fall into that 

category, a not prudent finding is not 

mandatory, as we may determine that 

designating critical habitat could still 

contribute to the conservation of the 

species. Moreover, the other reasons 

given by commenters in support of 

making a ‘‘not prudent’’ determination 

(e.g., whether existing protections are 

sufficient and whether project 

modifications in section 7 consultations 

result from the designation) do not 

provide any basis for determining that 

the Arctic ringed seal falls within any of 

the other circumstances identified in 

our regulations at 50 CFR 424.12(a)(1) in 

which we may determine a designation 

would not be prudent. The 

identification of critical habitat is not 

expected to increase the degree of threat 

to the species, areas within U.S. 

jurisdiction provide more than 

negligible conservation value for this 

circumpolar species, and a specific area 

meets the definition of critical habitat. 

Comment 66: Several commenters 

stated that critical habitat is 

unnecessary to conserve Arctic ringed 

seals because the species is healthy and 

abundant, widely distributed 

throughout its historical range, and has 

not shown any indication of a decline 

in population. They stated that 

moreover, the Arctic ringed seal was 

listed as threatened under the ESA 

based on impacts to habitat from climate 

change projected to occur decades into 

the future. They questioned expending 

resources on developing a critical 

habitat designation in this circumstance. 

Response: As we indicated in our 

response to Comment 65, the ESA 

requires that we designate critical 

habitat to the maximum extent prudent 

and determinable at the time a species 

is listed under the ESA, or within one 

year of listing if critical habitat is not 

determinable at that time. The 

comments regarding abundance, 

distribution, and population trend are 

relevant to ESA listing decisions (and 

were addressed in the final rule listing 

the Arctic ringed seal as threatened; see 

77 FR 76706, December 28, 2012), but 

they do not have any bearing on 

whether critical habitat should be 

designated. Habitat is a fundamental 

aspect of conserving any species, and as 

discussed above, we are required to 

designate critical habitat for listed 

species except in the very limited 

circumstances in which it is determined 

not to be prudent. 

Comment 67: One commenter stated 

that we should delay designation of 


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critical habitat until after completing the 

ongoing 5-year review of the species 

under the ESA. In addition, two 

commenters expressed concern that the 

designation is being driven by litigation 

and suggested that further research be 

conducted before designating critical 

habitat. 

Response: The ESA requires us to 

designate critical habitat, to the 

maximum extent prudent and 

determinable, at the time species are 

listed (16 U.S.C. 1533(a)(3)(A)(i)). If 

designation is not then determinable, 

we may extend this deadline by not 

more than one additional year. A 

lawsuit was filed in Federal court 

alleging we did not meet the statutory 

deadline to designate critical habitat, 

and under a court-approved stipulated 

settlement agreement, we must 

complete a final critical habitat 

determination by March 15, 2022 (see 

Background section). We cannot further 

delay the statutory requirement to 

designate critical habitat in order to 

complete the 5-year review. 

Comment 68: One commenter stated 

that because the recent amendments to 

our joint NMFS/USFWS regulations 

implementing section 4 of the ESA (84 

FR 45020, August 27, 2019; 85 FR 

81411, December 16, 2020) are currently 

the subject of several lawsuits and are 

included in a list of regulatory actions 

that are being reviewed by the current 

administration, we should not rely on 

those regulatory amendments in 

designating critical habitat for the Arctic 

ringed seal. 

Response: In designating critical 

habitat, we are required to adhere to the 

ESA implementing regulations that are 

currently in effect. The regulatory 

amendments published on August 27, 

2019, became effective and applicable 

for proposed critical habitat rules 

published after September 26, 2019. 

However, those recent revisions did not 

materially change our determination of 

critical habitat for Arctic ringed seals 

because they involve the procedures 

and criteria used for designating 

unoccupied areas and making 

discretionary determinations that 

designating critical habitat would not be 

prudent. A regulatory amendment 

published on December 16, 2020, which 

added a definition of ‘‘habitat’’ to our 

ESA implementing regulations, became 

effective on January 15, 2021, and is 

applicable to critical habitat 

rulemakings for which a proposed 

critical habitat rule is published after 

that date. As a result, that rule does not 

apply to the critical habitat rulemaking 

for Arctic ringed seals. We note, 

however, that the new regulatory 

definition of ‘‘habitat’’ is consistent with 

our consideration of habitat in 

designating critical habitat for Arctic 

ringed seals. 

Comment 69: The North Slope 

Borough and the Ice Seal Committee 

expressed concern that we did not 

adequately inform or consult with the 

Ice Seal Committee during preparation 

of the revised proposed rule, and stated 

that the Ice Seal Committee membership 

has a significant amount of IK and 

experience that is directly relevant to 

various elements of the designation. 

They requested that we consult with the 

Ice Seal Committee and provide the 

opportunity to provide 

recommendations concerning the 

critical habitat designation prior to 

proceeding further with the designation. 

The Ice Seal Committee further 

commented that given that ringed seals 

are essential for subsistence and the 

continuation of traditional ways of life, 

this consultation and any subsequent 

regulatory actions must be based on IK 

of threats to the species and the 

conservation actions considered 

necessary. In addition, another 

commenter urged us to conduct 

additional meaningful outreach that 

engages local Alaska Native hunters and 

other experts and consider their input in 

developing the critical habitat 

designation. In addition, one commenter 

stated that it appeared that no Alaska 

Native indigenous experts provided 

review and input on the proposed 

designation prior to its publication. 

Response: We understand the 

concerns expressed by the Ice Seal 

Committee about coordination and 

input on the designation of critical 

habitat for Arctic ringed seals, and 

recognize that Alaska Native subsistence 

hunting communities have unique 

knowledge of ringed seals, which are an 

essential traditional subsistence 

resource. We gave presentations and 

updates to the Ice Seal Committee on 

the designation of critical habitat for 

Arctic ringed seals and sought their 

input beginning in 2013. Prior to 

developing a revised proposed critical 

habitat designation, we discussed the 

process for developing the proposal 

during the Ice Seal Committee comanagement meeting in January 2020, 

where we reviewed a list of relevant 

questions regarding the identification of 

critical habitat for the Ice Seal 

Committee’s consideration and input. 

At that meeting, we also distributed an 

informational flyer that addressed the 

designation process and related topics. 

In September 2020, we provided an 

update to the Ice Seal Committee by 

email about the schedule for issuing the 

revised proposed designation and 

related information. In January 2021, we 

notified the Ice Seal Committee by email 

in advance of the scheduled publication 

of the revised proposed rule, and we 

subsequently followed up by letter 

regarding the revised proposed 

designation and the comment period on 

the proposal. During the Ice Seal 

Committee co-management meeting in 

February 2021, we presented 

information regarding the revised 

proposed designation, the comment 

period, and the schedule for hearings, 

and we highlighted the types of data 

and information we were particularly 

seeking to inform development of the 

final designation. We also provided 

information to the Ice Seal Committee 

regarding the public hearings by email. 

In response to their requests to do more 

to publicize the proposed designation 

and the scheduled hearings, we 

provided a flyer to the Ice Seal 

Committee to share and we arranged to 

run public service announcements on 

the radio to inform people about the 

upcoming hearings. During the Ice Seal 

Committee meeting in September 2021, 

we provided an update on the status of 

development of the final critical habitat 

designation and sought input about our 

efforts to coordinate with, and gain 

input from, the Ice Seal Committee 

regarding the designation. We will 

continue to make efforts to improve our 

communications with the Ice Seal 

Committee on matters pertaining to the 

conservation and management of ice 

seals in Alaska. With regard to the 

comments concerning our consideration 

of IK, also see our response to Comment 

72. 

Regarding the comment concerning 

review of the revised proposed 

designation by Alaska Native 

indigenous experts prior to publication, 

we sought such input from Alaska 

Native hunters, including some elders 

with considerable IK, during Ice Seal 

Committee meetings as discussed in the 

preceding paragraph. In developing the 

final critical habitat designation, we 

fully considered all of the comments 

received on the revised proposed rule, 

including from the Ice Seal Committee, 

some Ice Seal Committee partner 

organizations, Alaska Native hunters, 

and residents of western and northern 

coastal communities. 

Comment 70: The Ice Seal Committee 

expressed concern that NMFS is not 

sufficiently providing notice of 

regulatory actions or engaging with 

Alaska Native ice seal hunters. To 

promote outreach and engagement with 

the Alaska Native community, the Ice 

Seal Committee suggested that we 

prepare and distribute handouts that 

summarize proposed and final 

regulatory measures that clearly identify 


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implications and requirements for 

affected Alaska Native hunters. The Ice 

Seal Committee committed to assisting 

NMFS in these efforts. Another 

commenter similarly urged NMFS to 

work with Alaska Native organizations 

to develop improved processes to 

ensure meaningful outreach and 

consultation. In addition, another 

commenter urged NMFS to engage in 

consultation with Tribes and Alaska 

Native corporations going forward 

before drafting and publishing proposed 

rules, so the proposed rules can 

incorporate and reflect the expertise of 

indigenous Alaskans from the start. 

Response: We understand and 

welcome the Ice Seal Committee’s 

interest in furthering our 

communications and engagement with 

Alaska Native communities and ice seal 

hunters, and we will continue to work 

closely with them regarding 

conservation and management issues 

related to ice seals. We note that the 

primary regulatory impact of critical 

habitat designation is that actions 

authorized, funded, or carried out by 

Federal agencies, and that may affect 

critical habitat, must undergo 

consultation under section 7 of the ESA 

to assess the effects of such actions on 

critical habitat, and must ensure that 

their actions are not likely to destroy or 

adversely modify critical habitat. We do 

not expect this critical habitat 

designation to have any adverse impact 

on Alaska Native subsistence activities. 

We also do not expect the critical 

habitat designation to result in any new 

reporting, sampling, or other procedural 

requirements for Alaska Native 

subsistence harvests. Regarding the 

comment about consultations with 

Tribes and Alaska Native Corporations, 

we contacted potentially affected tribes 

and Alaska Native Corporation by mail 

and offered them the opportunity to 

consult on the designation of critical 

habitat for the Arctic ringed seal and 

discuss any concerns they may have. 

We received no requests for 

consultation in response to that mailing. 

Comment 71: One commenter stated 

that navigating the NMFS website was 

challenging and made it more difficult 

to review all the relevant information 

and submit written comments on the 

revised proposed critical habitat 

designation. 

Response: The commenter may be 

referring to the eRulemaking Portal 

where we accepted electronic comments 

on the revised proposed rule and the 

documents associated with the proposal 

could be accessed. This website 

transitioned to a new interface during 

the comment period on the revised 

proposed rule, which may have 

complicated use by the commenter. 

Although electronic comments on the 

revised proposal were accepted during 

the comment period via the 

eRulemaking Portal, we also provided 

links to the documents associated with 

this rulemaking on our website, and we 

accepted written comments by mail. 

Other Comments 

Comment 72: A number of 

commenters, including the Ice Seal 

Committee and the North Slope 

Borough, indicated that we should 

further utilize IK in our determination 

of critical habitat for the Arctic ringed 

seal. The North Slope Borough stated 

that due to the amount of existing 

scientific uncertainty concerning ringed 

seal habitat requirements, IK constitutes 

the best scientific data available and 

should be used in developing and 

designating any critical habitat for the 

species. They further stated that we 

should solicit and collect IK about ice 

conditions used by Arctic ringed seals 

for basking and molting, and how 

flexible they are in the types of habitat 

they use for these activities, and we 

should use this information to modify 

the proposed designation. 

Response: In developing this final 

rule, we considered the best scientific 

data available, including comments 

submitted from individuals who 

provided IK about Arctic ringed seal 

habitat use, and available publications 

and reports that documented IK for 

coastal communities located in western 

and northern Alaska. We also attempted 

to incorporate additional information 

from Alaska Native hunters into the 

determination of critical habitat by 

soliciting input from the Ice Seal 

Committee regarding the essential 

features of Arctic ringed seal critical 

habitat and specifically offering to 

consult with Alaska Native tribes and 

organizations regarding the 

development of the designation. 

Although we received some input in 

response, we recognize that additional 

IK exists that we have been unable to 

incorporate. However, the ESA does not 

allow us to defer the designation of 

critical habitat in order to collect 

additional data. Under a court-approved 

stipulated settlement agreement, we 

must complete a final critical habitat 

determination by March 15, 2022 (see 

Background section). 

Comment 73: The Marine Mammal 

Commission and two others 

commenters noted that as sea ice extent 

continues to decline substantially 

Arctic-wide, and the timing, rate, and 

extent of seasonal sea ice loss and 

formation in the Bering and Chukchi 

seas continue to shift, areas currently 

considered to be critical habitat may 

change. They recommended that we 

therefore review the critical habitat 

designation for Arctic ringed seals every 

5 years, or as substantial new 

information becomes available, to 

evaluate whether there is a need to 

revise the designation. 

Response: We anticipate that future 

research will add to our knowledge of 

the habitat needs of the Arctic ringed 

seal and how changing sea ice and 

ocean conditions are affecting the seals 

and the habitat features essential to their 

conservation. If additional data become 

available that support a revision to this 

critical habitat designation, we can 

consider using the authority provided 

under section 4(a)(3)(A)(ii) of the ESA to 

revise the designation, as appropriate. 

Comment 69: The Marine Mammal 

Commission stated that finding an 

effective way of addressing the risks 

posed by climate change is likely the 

only way to fulfill the ESA’s mandate to 

conserve Arctic ringed seals and the 

ecosystem on which they depend. The 

Commission recommended that we 

work with key Federal agencies on a 

coordinated strategy to address the 

broader underlying problem—the need 

to reduce GHG emissions, thereby 

mitigating the negative impacts of 

climate change on Arctic marine 

mammals, including ringed seals, and 

their habitat. They noted that this 

strategy should be supported by work 

with Federal and state agencies, comanagement partners, and local 

communities via existing research 

partnerships to foster routine inclusion 

of IK along with conventional science in 

assessing and predicting habitat 

transformation in the Arctic. In 

addition, other commenters stated that 

addressing loss of sea ice habitat would 

require international collaboration. 

Response: We agree that addressing 

the effects of climate change on Arctic 

ringed seals and their habitat will 

require continued monitoring and 

research, and we look forward to 

working with our partners and 

stakeholders in furthering the 

conservation of this species. In addition 

to ongoing research on Arctic ringed 

seals conducted by NOAA’s Marine 

Mammal Laboratory, NOAA provides 

climate analyses, sea ice forecasts, and 

other information to help other agencies 

and the public understand changes in 

the Earth’s atmosphere and climate. 

These types of information products are 

used by a variety of state, Federal, and 

international bodies to inform decisions 

related to the root causes of climate 

change. NOAA also provides funding to 

and works cooperatively with other 

agencies on these efforts. 


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Comment 75: ADF&G requested that 

we review and incorporate into the final 

rule relevant information and literature 

cited in their submission of information 

for the 5-year status review of four 

subspecies of the ringed seal, including 

the Arctic ringed seal. 

Response: We appreciate the 

information and references submitted 

for the 5-year status review of ringed 

seals. We reviewed and evaluated this 

information as part of our critical 

habitat determination, which is 

incorporated into the preamble to this 

final rule as appropriate, and is 

included in the decision record for this 

designation. 

Summary of Changes From the Revised 

Proposed Designation 

Based on our consideration of 

comments and information received 

from peer reviewers and the public on 

our January 9, 2021, revised proposed 

rule (86 FR 1452), and additional 

information we reviewed as part of our 

reconsideration of issues discussed in 

the revised proposed rule, we made 

several changes from the proposed 

critical habitat designation. These 

changes are briefly summarized below 

and discussed in further detail in the 

relevant responses to comments and 

other sections of the preamble of this 

final rule. 

(1) Revised primary prey resources 

essential feature. In the revised 

proposed rule, we identified primary 

prey resources to support Arctic ringed 

seals as an essential feature, which we 

defined to be Arctic cod (Boreogadus 

saida), saffron cod (Eleginus gracilis), 

shrimps, and amphipods. In response to 

peer reviewer and public comments 

requesting we identify additional prey 

species in the regulatory definition of 

this essential feature, we re-evaluated 

the information used to support the 

proposed definition of the essential 

feature, along with new information 

provided in a recent report cited in a 

peer reviewer’s comments (Quakenbush 

et al. 2020), to determine if revision of 

the proposed definition of this essential 

feature may be appropriate. 

In the revised proposed rule, we 

considered information on ringed seal 

diet in the central Beaufort Sea reported 

by Lowry et al. (1980b). However, we 

later identified a subsequent publication 

by Frost and Lowry (1984) that 

incorporated additional samples from 

the Beaufort Sea not included in that 

previous publication. Because the 

ringed seal diet information reported in 

the latter publication represents 

additional locations and greater 

seasonal sample sizes, we considered 

this information in place of Lowry et al. 

(1980b) for the Beaufort Sea, although it 

does not present significant new 

findings. 

After thorough consideration of the 

best information currently available, we 

have concluded that it is appropriate to 

identify rainbow smelt as a primary 

prey species of Arctic ringed seals. Our 

review of this information also 

reconfirmed that Arctic cod, saffron cod, 

shrimps, and amphipods are prominent 

prey species for Arctic ringed seals in 

Alaska and we therefore continue to 

identify them as primary prey species. 

However, diet composition and the 

relative prominence of certain prey 

species vary both geographically and 

seasonally, and differences in diet 

between age classes (pups and non-pup 

seals), as well as a temporal shift in diet 

in the Bering and Chukchi seas have 

been reported. In addition, ringed seal 

diet information for the Beaufort Sea is 

relatively limited. We have therefore 

revised the definition of the primary 

prey resources essential feature in this 

final rule to include a description of the 

seals’ most common types of prey, 

which are small, often schooling fishes, 

and small crustaceans, and to identify 

for those types of prey, the predominant 

prey species in the seals’ diets (i.e., 

Arctic cod, saffron cod, rainbow smelt, 

shrimps, and amphipods), which we 

conclude are essential to the 

conservation of the Arctic ringed seal. 

The revised primary prey resources 

essential feature that we identify and 

adopt in this final rule is as follows: 

Primary prey resources to support 

Arctic ringed seals, which are defined to 

be small, often schooling, fishes, in 

particular, Arctic cod, saffron cod, and 

rainbow smelt; and small crustaceans, 

in particular, shrimps and amphipods. 

We find that this level of specificity, 

naming species known to be prominent 

in Arctic ringed seals’ diet but not 

limiting the definition to only those 

species, is most appropriate for defining 

this essential feature based on the best 

scientific data available. 

(2) Revised sea ice essential features. 

In the revised proposed rule, our 

definitions of the sea ice essential 

features excluded any bottom-fast ice 

extending seaward from the coastline 

(typically in waters less than 2 m deep). 

Some public comments received 

objected to the exclusion of bottom-fast 

ice, while others argued that very 

shallow ice-covered waters are not 

essential to Arctic ringed seal 

conservation, in part because of the 

occurrence of bottom-fast ice in such 

areas. These comments led us to reevaluate how the sea ice essential 

features may be best described relative 

to very shallow nearshore areas. After 

thorough review of the best scientific 

data available, we have concluded that 

sea ice habitat essential for birth lairs, 

as well as for basking and molting, is 

best described with respect to very 

shallow waters in terms of minimum 

water depth. Based on our assessment of 

available information regarding Arctic 

ringed seal use of shallow ice-covered 

areas and the water depths in which sea 

ice may become bottom-fast, in this final 

rule we identify 3 m as the minimum 

water depth for the sea ice essential 

features. We have therefore omitted the 

phrase ‘‘excluding any bottom-fast ice 

extending seaward from the coastline 

(typically in waters less than 2 m deep)’’ 

from the definitions of these essential 

features and instead specify that they 

are found in ‘‘waters 3 m or more in 

depth (relative to MLLW).’’ This 

delineates a clear shoreward boundary 

and avoids the implication that some 

shallow waters may or may not qualify 

as critical habitat depending on whether 

bottom-fast ice is present. We have also 

made minor wording changes in the 

definition of sea ice essential for the 

formation and maintenance of birth lairs 

for clarity. We further explain and 

clarify our reasoning for this change in 

the Physical and Biological Features 

Essential to the Conservation of the 

Species section of this final rule. 

(3) Revised shoreward boundary of 

critical habitat. In the revised proposed 

rule, we identified one specific area in 

the Bering, Chukchi and Beaufort seas 

containing the proposed essential 

features. Although the same seaward 

boundaries were identified for this 

specific area with respect to both the 

primary prey resources essential feature 

and the sea ice essential features, the 

shoreward boundary was identified as 

the line of MLLW based principally on 

occurrence of the proposed primary 

prey resources essential feature. We 

expressed in the revised proposed rule 

that data to determine the specific area 

containing the essential features are 

limited, and we specifically requested 

data and comments on our proposed 

delineation of these boundaries. In 

response to public comments that raised 

concerns about our proposed 

delineation of the boundaries of critical 

habitat with respect to the primary prey 

resources essential feature (as well as to 

peer reviewer and public comments 

related to ringed seal use of habitat for 

foraging), and after revising the 

proposed definitions of the essential 

features (as described above), we reevaluated the best scientific data 

available and the approach we had used 

to identify the proposed boundaries to 


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ensure that they were drawn 

appropriately. 

In reviewing these comments and 

considering the available data, we 

recognized that the available 

information on the distributions of 

Arctic ringed seal primary prey species 

indicate that these prey resources are 

widely distributed across the geographic 

area occupied by these seals. We have 

no information that suggests any 

portions of the species’ occupied habitat 

contains prey species that are of greater 

importance or otherwise differ from 

those found within the specific area 

defined by the sea ice essential features. 

We concluded it was not possible to 

delineate the boundaries of critical 

habitat based solely on the description 

of the primary prey essential feature 

without implying the species’ entire 

occupied range qualifies as critical 

habitat. The best information available 

indicates that although Arctic ringed 

seals may forage seasonally in some 

particular areas, such as Barrow 

Canyon, the seals also make extensive 

use of a diversity of habitats for foraging 

across much broader areas in the Bering, 

Chukchi, and Beaufort seas. Most 

importantly, the movements and habitat 

use of Arctic ringed seals are strongly 

influenced by the seasonality of sea ice 

and they forage throughout the year 

(albeit with reduced feeding during 

molting). Given this and our 

consideration of the best scientific data 

available, we concluded that the best 

approach to determine the appropriate 

boundaries for critical habitat is to 

identify the specific area(s) in which 

both the primary prey essential feature 

and the sea ice essential features occur, 

and that this specific area contains 

sufficient primary prey resources to 

support the conservation of Arctic 

ringed seals. As discussed previously, in 

this final rule we identify 3 m (relative 

to MLLW) as the minimum water depth 

for the sea ice essential features, and we 

therefore define the shoreward 

boundary of the specific area containing 

one or more of the essential features as 

the 3-m isobath (relative to MLLW), 

rather than the line of MLLW, as 

identified in the revised proposed rule. 

The boundaries are otherwise 

unchanged from the revised proposed 

rule. 

(4) Revised exclusion based on 

national security impacts. As a result of 

clarifications provided by the Navy 

regarding the boundaries of the 

particular area north of the Beaufort Sea 

shelf that the Navy requests be excluded 

from the critical habitat designation for 

national security reasons, we have 

revised the southern and western 

boundaries of the area excluded from 

designation in this final rule. 

(5) Final Impact Analysis Report. In 

response to peer reviewer and public 

comments, we revised and updated the 

Draft Impact Analysis Report to further 

explain and clarify our analysis of the 

economic costs and benefits of the 

designation, and to correct 

typographical and other minor errors. 

The timeframe, wage schedule, and 

dollar year of the analysis were also 

updated to reflect the implementation 

schedule of the final rule. We also 

revised the analysis of the incremental 

administrative costs of section 7 

consultations associated with the 

critical habitat designation to reflect the 

revised delineation of the shoreward 

boundary of the designation explained 

above. 

(6) New information. In this final rule, 

we have made minor updates and 

incorporated additional information and 

references as appropriate, including 

information from IK documented for 

coastal communities located in western 

and northern Alaska, based on peer 

reviewer and public comments, new 

information we received or reviewed 

after publication of the revised proposed 

rule, and our internal review of the 

revised proposed rule. 

References Cited 

A complete list of all references cited 

in this final rule can be found on the 

NMFS website at 

www.fisheries.noaa.gov/species/ringedseal#conservation-management, the 

Federal eRulemaking Portal at 

www.regulations.gov/docket/NOAANMFS-2013-0114, and is available upon 

request from the NMFS office in Juneau, 

Alaska (see FOR FURTHER INFORMATION

CONTACT). 

Classifications 

National Environmental Policy Act 

We have determined that an 

environmental assessment as provided 

for under the National Environmental 

Policy Act is not required for critical 

habitat designations made pursuant to 

the ESA. See Douglas Cnty. v. Babbitt, 

48 F.3d 1495, 1502–08 (9th Cir. 1995), 

cert. denied, 116 S. Ct. 698 (1996). 

Regulatory Flexibility Act 

Under the Regulatory Flexibility Act 

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

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996, whenever an agency publishes a 

notice of rulemaking for any proposed 

or final rule, it must prepare and make 

available for public comment a 

regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

not-for-profit organizations, and small 

government jurisdictions). We have 

prepared a final regulatory flexibility act 

analysis (FRFA), which is included as 

part of the Final Impact Analysis Report 

for this final rule. The FRFA estimates 

the potential number of small 

businesses that may be directly 

regulated by this rule, and the impact 

(incremental costs) per small entity for 

a given activity type. Specifically, based 

on an examination of the North 

American Industry Classification 

System (NAICS), this analysis classifies 

the economic activities potentially 

directly regulated by this action into 

industry sectors and provides an 

estimate of their number in each sector, 

based on the applicable NAICS codes. A 

summary of the FRFA follows. 

A description of the action (i.e., 

designation of critical habitat), why it is 

being considered, and its legal basis are 

included in the preamble of this final 

rule. This action does not impose new 

recordkeeping or reporting requirements 

on small entities. The analysis did not 

reveal any Federal rules that duplicate, 

overlap, or conflict with this action. 

Existing Federal laws and regulations 

overlap with this rule only to the extent 

that they provide protection to natural 

resources within the area designated as 

critical habitat generally. However, no 

existing regulations specifically prohibit 

destruction or adverse modification of 

critical habitat for the Arctic ringed seal. 

This critical habitat designation rule 

does not directly apply to any particular 

entity, small or large. The regulatory 

mechanism through which critical 

habitat protections are enforced is 

section 7 of the ESA, which directly 

regulates only those activities carried 

out, funded, or permitted by a Federal 

agency. By definition, Federal agencies 

are not considered small entities, 

although the activities they fund or 

permit may be proposed or carried out 

by small entities. In some cases, small 

entities may participate as third parties 

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

during ESA section 7 consultations (the 

primary parties being the Federal action 

agency and NMFS) and thus they may 

be indirectly affected by the critical 

habitat designation. 

Based on the best information 

currently available, the Federal actions 

projected to occur within the timeframe 

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

that may trigger an ESA section 7 

consultation due to the potential to 

affect one or more of the essential 

habitat features also have the potential 

to affect Arctic ringed seals. Thus, as 

discussed above, we expect that none of 


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the activities we identified would 

trigger a consultation solely on the basis 

of this critical habitat designation; in 

addition, we have no information to 

suggest that additional requests for 

project modifications are likely to result 

specifically from this designation of 

critical habitat. Therefore, the direct 

incremental costs of this critical habitat 

designation are expected to be limited to 

the additional administrative costs of 

considering Arctic ringed seal critical 

habitat in future section 7 consultations 

that would occur regardless, based on 

the listing of Arctic ringed seals. 

As detailed in the Final Impact 

Analysis Report, the oil and gas 

exploration, development, and 

production industries participate in 

activities that are likely to require 

consideration of critical habitat in ESA 

section 7 consultations. The Small 

Business Administration size standards 

used to define small businesses in these 

cases are: (1) An average of no more 

than 1,250 employees (crude petroleum 

and natural gas extraction industry); or 

(2) average annual receipts of no more 

than $41.5 million (support activities for 

oil and gas operations industry). Only 

two of the parties identified in the oil 

and gas category appear to qualify as 

small businesses based on these criteria. 

Based on past ESA section 7 

consultations, the additional third-party 

administrative costs in future 

consultations involving Arctic ringed 

seal critical habitat over the next 10 

years are expected to be borne 

principally by large oil and gas 

operations. The estimated range of 

annual third-party costs over this 10 

year period is $29,900 to $54,900 

(discounted at 7 percent), virtually all of 

which is expected to be associated with 

oil and gas activities. It is possible that 

a limited portion of these administrative 

costs may be borne by small entities 

(based on past consultations, an 

estimated maximum of two entities). 

Two government jurisdictions with 

ports appear to qualify as small 

government jurisdictions (serving 

populations of fewer than 50,000). The 

total third-party costs that may be borne 

by these small government jurisdictions 

over 10 years are estimated to be less 

than $1,000 (discounted at 7 percent) for 

the additional administrative effort to 

consider Arctic ringed seal critical 

habitat as part of a future ESA section 

7 consultation involving one port. In 

addition, the analysis anticipates three 

section 7 consultations on coastal 

construction activities over 10 years that 

may include third parties. It is not 

known whether the third parties are 

likely to be large or small entities. The 

total administrative costs associated 

with these three consultations that may 

be borne by third parties over 10 years 

are estimated to be $2,000 (discounted 

at 7 percent). 

As required by the RFA (as amended 

by the SBREFA), we considered 

alternatives to the proposed critical 

habitat designation for the Arctic ringed 

seal. We considered and rejected the 

alternative of designating as critical 

habitat the entire specific area that 

contains at least one identified essential 

feature (i.e., no areas excluded), because 

the alternative does not allow the 

agency to take into account 

circumstances in which the benefits of 

exclusion for national security impacts 

outweigh the benefits of critical habitat 

designation. However, through the ESA 

4(b)(2) exclusion analysis process, we 

identified and selected an alternative 

under which a particular area is 

excluded from designation based on 

national security impacts after 

determining that the benefits of 

exclusion outweigh the conservation 

benefits to the species. We selected this 

alternative because it results in a critical 

habitat designation that provides for the 

conservation of the species and is 

consistent with the ESA and joint NMFS 

and USFWS regulations concerning 

critical habitat at 50 CFR part 424 while 

potentially reducing national security 

impacts. Based on the best information 

currently available, we concluded that 

this alternative would result in minimal 

impacts to small entities and the 

economic impacts associated with the 

critical habitat designation would be 

modest. 

Paperwork Reduction Act 

This final rule does not contain a 

collection-of-information requirement 

for the purposes of the Paperwork 

Reduction Act. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

This rule will not produce a Federal 

mandate. 

Information Quality Act and Peer 

Review 

The data and analyses supporting this 

action have undergone a predissemination review and have been 

determined to be in compliance with 

applicable information quality 

guidelines implementing the 

Information Quality Act (Section 515 of 

Pub. L. 106–554). 

On December 16, 2004, the OMB 

issued its Final Information Quality 

Bulletin for Peer Review (Bulletin) 

establishing minimum peer review 

standards, a transparent process for 

public disclosure of peer review 

planning, and opportunities for public 

participation. The Bulletin was 

published in the Federal Register on 

January 14, 2005 (70 FR 2664). The 

primary purpose of the Bulletin, which 

was implemented under the Information 

Quality Act, is to improve the quality 

and credibility of scientific information 

disseminated by the Federal government 

by requiring peer review of ‘‘influential 

scientific information’’ and ‘‘highly 

influential scientific information’’ prior 

to public dissemination. Influential 

scientific information is defined as 

information the agency reasonably can 

determine will have or does have a clear 

and substantial impact on important 

public policies or private sector 

decisions. The Bulletin provides 

agencies broad discretion in 

determining the appropriate process and 

level of peer review. Stricter standards 

were established for the peer review of 

‘‘highly influential scientific 

assessments,’’ defined as information 

whose dissemination could have a 

potential impact of more than $500 

million in any one year on either the 

public or private sector or that the 

information is novel, controversial, or 

precedent-setting, or has significant 

interagency interest. 

The evaluation of critical habitat 

presented in this final rule and the 

information presented in the supporting 

Final Impact Analysis Report are 

considered influential scientific 

information subject to peer review. To 

satisfy our requirements under the OMB 

Bulletin, we obtained independent peer 

review of the critical habitat analysis 

contained in our 2014 proposed rule (79 

FR 73010, December 9, 2014) from five 

reviewers, and of the information used 

to prepare the associated draft impact 

analysis report from three reviewers. We 

reviewed the comments received from 

these reviewers for substantive issues 

and new information regarding critical 

habitat for the Arctic ringed seal, and 

we used this information as applicable 

in the development of the 2021 revised 

proposed rule (86 FR 1452, January 8, 

2021) and the associated Draft Impact 

Analysis Report. We obtained three 

additional independent peer reviews of 

our evaluation of available data, and our 

use and interpretation of this 

information, in making conclusions 

regarding what areas meet the definition 

of critical habitat in the revised 

proposed rule, and three independent 

peer reviews of the Draft Impact 

Analysis Report for the revised 

proposed rule. The peer reviewer 

comments are addressed in this final 

rule and in the Final Impact Analysis 


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Report, and were compiled into two 

reports that are available at: 

www.noaa.gov/organization/ 

information-technology/peer-reviewplans. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

The longstanding and distinctive 

relationship between the Federal and 

tribal governments is defined by 

treaties, statutes, E.O.s, judicial 

decisions, and co-management 

agreements, which differentiate tribal 

governments from the other entities that 

deal with, or are affected by, the Federal 

Government. This relationship has 

given rise to a special Federal trust 

responsibility involving the legal 

responsibilities and obligations of the 

United States toward Indian tribes and 

the application of fiduciary standards of 

due care with respect to Indian lands, 

tribal trust resources, and the exercise of 

tribal rights. E.O. 13175 on Consultation 

and Coordination with Indian Tribal 

Governments outlines the 

responsibilities of the Federal 

Government in matters affecting tribal 

interests. Section 161 of Public Law 

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

section 518 of Public Law 108–447 (118 

Stat. 3267), directs all Federal agencies 

to consult with Alaska Native 

corporations on the same basis as Indian 

tribes under E.O. 13175. 

As the entire critical habitat area is 

located seaward of the 3-m isobath, no 

tribal-owned lands overlap with the 

designation. Although this designation 

overlaps with areas used by Alaska 

Natives for subsistence, cultural, and 

other purposes, no restrictions on 

subsistence hunting are associated with 

the critical habitat designation. We 

coordinate with Alaska Native hunters 

regarding management issues related to 

Arctic ringed seals through the Ice Seal 

Committee, a co-management 

organization under section 119 of the 

MMPA. We discussed the designation of 

critical habitat for Arctic ringed seals 

with the Ice Seal Committee and 

provided updates regarding the timeline 

for publication of this rule. We also 

contacted potentially affected tribes and 

Alaska Native corporations by mail and 

offered them the opportunity to consult 

on the revised proposed designation of 

critical habitat for the Arctic ringed seal 

and discuss any concerns they may 

have. We did not receive any requests 

from potentially affected tribes or 

Alaska Native corporations in response 

to the revised proposed rule. 

Executive Order 12898, Environmental 

Justice 

The designation of critical habitat is 

not expected to have a 

disproportionately high effect on 

minority populations or low-income 

populations. 

Executive Order 12630, Takings 

Under E.O. 12630, Federal agencies 

must consider the effects of their actions 

on constitutionally protected private 

property rights and avoid unnecessary 

takings of property. A taking of property 

includes actions that result in physical 

invasion or occupancy of private 

property, and regulations imposed on 

private property that substantially affect 

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

12630, this rule does not have 

significant takings implications. The 

designation of critical habitat directly 

affects only Federal agency actions (i.e., 

those actions authorized, funded, or 

carried out by Federal agencies). 

Further, no areas of private property 

exist within the critical habitat and 

hence none would be affected by this 

action. Therefore, a takings implication 

assessment is not required. 

Executive Order 12866, Regulatory 

Planning and Review 

OMB has determined that this rule is 

significant for purposes of E.O. 12866 

review. A Final Impact Analysis Report 

has been prepared that considers the 

economic costs and benefits of this 

critical habitat designation and 

alternatives to this rulemaking as 

required under E.O. 12866. To review 

this report, see the ADDRESSES section 

above. 

Based on the Final Impact Analysis 

Report, the total estimated present value 

of the incremental impacts of the critical 

habitat designation is approximately 

$714,000 over the next 10 years 

(discounted at 7 percent) for an 

annualized cost of $95,000. Overall, 

economic impacts are expected to be 

small and Federal agencies are 

anticipated to bear at least 42 percent of 

these costs. While there are expected 

beneficial economic impacts of 

designating critical habitat for the Arctic 

ringed seal, there are insufficient data 

available to monetize those impacts (see 

Benefits of Designation section). 

Executive Order 13132, Federalism 

E.O. 13132 requires agencies to take 

into account any federalism impacts of 

regulations under development. It 

includes specific consultation directives 

for situations in which a regulation may 

preempt state law or impose substantial 

direct compliance costs on state and 

local governments (unless required by 

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

determined that this rule does not have 

significant federalism effects and that a 

federalism assessment is not required. 

The designation of critical habitat 

directly affects only the responsibilities 

of Federal agencies. As a result, this rule 

does not have substantial direct effects 

on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government, as 

specified in the Order. State or local 

governments may be indirectly affected 

by this critical habitat designation if 

they require Federal funds or formal 

approval or authorization from a Federal 

agency as a prerequisite to conducting 

an action. In these cases, the State or 

local government agency may 

participate in the ESA section 7 

consultation as a third party. One of the 

key conclusions of the economic impact 

analysis is that the incremental impacts 

of the critical habitat designation will 

likely be limited to additional 

administrative costs to NMFS, Federal 

agencies, and to third parties stemming 

from the need to consider impacts to 

critical habitat as part of the forecasted 

section 7 consultations. The designation 

of critical habitat is not expected to have 

substantial indirect impacts on State or 

local governments. 

Executive Order 13211, Energy Supply, 

Distribution, and Use 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking a significant energy 

action. Under E.O. 13211, a significant 

energy action means any action by an 

agency that is expected to lead to the 

promulgation of a final rule or 

regulation that is a significant regulatory 

action under E.O. 12866 and is likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

We have considered the potential 

impacts of this critical habitat 

designation on the supply, distribution, 

or use of energy (see Final Impact 

Analysis Report for this rule). This 

critical habitat designation overlaps 

with five BOEM planning areas for 

Outer Continental Shelf oil and gas 

leasing; however, the Beaufort and 

Chukchi Sea planning areas are the only 

areas with existing or planned leases. 

Currently, the majority of oil and gas 

production occurs on land adjacent to 

the Beaufort Sea and the critical habitat 

area. Any proposed offshore oil and gas 

projects would likely undergo an ESA 

section 7 consultation to ensure that the 

project would not likely destroy or 

adversely modify designated critical 

habitat. However, as discussed in the 


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Final Impact Analysis Report for this 

rule, such consultations will not result 

in any new and significant effects on 

energy supply, distribution, or use. ESA 

section 7 consultations have occurred 

for numerous oil and gas projects within 

the area of the critical habitat 

designation (e.g., regarding possible 

effects on endangered bowhead whales, 

a species without designated critical 

habitat) without adversely affecting 

energy supply, distribution, or use, and 

we would expect the same relative to 

critical habitat for Arctic ringed seals. 

We have, therefore, determined that the 

energy effects of this rule are unlikely to 

exceed the impact thresholds identified 

in E.O. 13211, and that this rulemaking 

is not a significant energy action. 

List of Subjects 

50 CFR Part 223 

Endangered and threatened species. 

50 CFR Part 226 

Endangered and threatened species. 

Dated: March 18, 2022. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, 50 CFR parts 223 and 226 are 

amended as follows: 

PART 223—THREATENED MARINE 

AND ANADROMOUS SPECIES 

■ 1. The authority citation for part 223 

continues to read as follows: 

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

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

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

§ 223.206(d)(9). 

■ 2. In § 223.102, in the table in 

paragraph (e), under Marine Mammals, 

revise the entry for ‘‘Seal, ringed (Arctic 

subspecies)’’ to read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

(e) * * * 

Species 1

Citation(s) for listing 

determination(s) 

Critical 

habitat ESA rules 

Common name Scientific name Description of listed entity 

MARINE MAMMALS

* * * * * * * 

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

hispida.

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

2012.

226.228 NA 

*******

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

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

* * * * * 

PART 226—DESIGNATED CRITICAL 

HABITAT 

■ 3. The authority citation for part 226 

continues to read as follows: 

Authority: 16 U.S.C. 1533. 

■ 4. Add § 226.228 to read as follows: 

§ 226.228 Critical Habitat for the Arctic 

Subspecies (Pusa hispida hispida) of the 

Ringed Seal. 

Critical habitat is designated for the 

Arctic subspecies of the ringed seal as 

described in this section. The map and 

textual descriptions in this section are 

the definitive source for determining the 

critical habitat boundaries. 

(a) Critical habitat boundaries. 

Critical habitat for the Arctic subspecies 

of the ringed seal includes marine 

waters within one specific area in the 

Bering, Chukchi, and Beaufort seas, 

extending from the nearshore boundary, 

defined by the 3-m isobath relative to 

mean lower low water (MLLW), to an 

offshore limit within the U.S. Exclusive 

Economic Zone (EEZ). The boundary 

extends offshore from the northern limit 

of the United States-Canada border 

approximately 90 km to 70°26′19′′ N/ 

140°11′21′′ W, and from this point runs 

generally westward along the line 

connecting the following points: 

70°55′35′′ N/142°33′51′′ W, 70°53′25′′ N/ 

144°37′19′′ W, 71°1′22′′ N/146°36′55′′ W, 

71°17′21′′ N/148°34′58′′ W, and 71°20′8′′ 

N/150° W. From this point (71°20′8′′ N/ 

150° W) the boundary follows longitude 

150° W northward to 72°20′4′′ N/150° 

W, then extends westward to 72°20′4′′ 

N/153° W, then follows longitude 153° 

W northward to the seaward limit of the 

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

the U.S. EEZ northwestward; then 

southwestward and south to the 

intersection of the southern boundary of 

the critical habitat in the Bering Sea at 

61°18′15′′ N/177°45′56′′ W. The 

southern boundary extends 

southeastward from this intersection 

point to 60°7′′ N/172°1′′ W, then 

northeastward along a line extending to 

near Cape Romanzof at 61°48′42′′ N/ 

166°6′5′′ W, with the nearshore 

boundary defined by the 3-m isobath. 

This includes waters off the coasts of 

the Kusilvak, and Nome Census Areas, 

and the Northwest Arctic and North 

Slope Boroughs, Alaska. Critical habitat 

does not include permanent manmade 

structures such as boat ramps, docks, 

and pilings that were in existence 

within the legal boundaries as of May 2, 

2022. 

(b) Essential features. The essential 

features for the conservation of the 

Arctic subspecies of the ringed seal are: 

(1) Snow-covered sea ice habitat 

suitable for the formation and 

maintenance of subnivean birth lairs 

used for sheltering pups during 

whelping and nursing, which is defined 

as waters 3 m or more in depth (relative 

to MLLW) containing areas of seasonal 

landfast (shorefast) ice or dense, stable 

pack ice, that have undergone 

deformation and contain snowdrifts of 

sufficient depth to form and maintain 

birth lairs (typically at least 54 cm 

deep). 

(2) Sea ice habitat suitable as a 

platform for basking and molting, which 

is defined as areas containing sea ice of 

15 percent or more concentration in 

waters 3 m or more in depth (relative to 

MLLW). 

(3) Primary prey resources to support 

Arctic ringed seals, which are defined to 

be small, often schooling, fishes, in 

particular, Arctic cod (Boreogadus 

saida), saffron cod (Eleginus gracilis), 

and rainbow smelt (Osmerus dentex); 

and small crustaceans, in particular, 

shrimps and amphipods. 

(c) Map of Arctic ringed seal critical 

habitat follows. 

Figure 1 to paragraph (c) 


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I I I I I 

0 125 250 

Kilometers 

Figure 1 to paragraph ( c) 

Critical Habitat for the Arctic Ringed Seal 

I 

500 

Critical Habitat 

limit of U.S. Exclusive Economic Zone