9146 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF92

Endangered and Threatened Wildlife

and Plants; Final Determination of

Critical Habitat for the Spectacled

Eider

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat for the spectacled eider

(Somateria fischeri), a threatened

species listed pursuant to the

Endangered Species Act of 1973, as

amended (Act). Critical habitat for the

spectacled eider includes areas on the

Yukon-Kuskokwim Delta (Y–K Delta), in

Norton Sound, Ledyard Bay, and the

Bering Sea between St. Lawrence and

St. Matthew Islands. These areas total

approximately 10,098,827 hectares

(100,988.3 square kilometers; 38,991.6

square miles; 24,954,638 acres).

Section 4 of the Act requires us to

consider economic and other impacts of

specifying any particular area as critical

habitat. We solicited data and comments

from the public on all aspects of the

proposed rule and economic analysis.

Section 7 of the Act prohibits

destruction or adverse modification of

critical habitat by any activity funded,

authorized, or carried out by any

Federal agency.

DATES: The effective date of this rule is

March 8, 2001.

FOR FURTHER INFORMATION CONTACT: Ann

G. Rappoport, Field Supervisor,

Anchorage Field Office, U.S. Fish and

Wildlife Service, 605 West 4th Avenue,

Room G–61, Anchorage, Alaska 99501

(telephone 907/271–2787 or toll-free

800/272–4174; facsimile 907/271–2786).

SUPPLEMENTARY INFORMATION:

Background

The spectacled eider is a large sea

duck, 52–56 centimeters long (20–22

inches). Sea ducks, waterfowl that

spend at least part of their lives at sea

or on large waterbodies, are a subgroup

of the subfamily Anatinae, family

Anatidae. Within each subfamily,

taxonomists group the waterfowl

species into tribes, but while Delacour

and Mayr (1945) originally placed the

eiders (Tribe Somaterini) in a separate

tribe from other sea ducks (Tribe

Mergini), Johnsgard (1960) and others

have grouped them together under Tribe

Mergini. The spectacled eider was first

described by Brandt in 1847 as Fuligula

fischeri, then later placed in the genera

Lampronetta and Arctonetta, and finally

under Somateria (American

Ornithologists’ Union 1983). The

spectacled eider is one of three species

in the genus Somateria. All Somateria

species’ ranges include the United

States.

In the winter and spring, adult male

spectacled eiders are in breeding

plumage with a black chest, white back,

and pale green head with a long sloping

forehead and black-rimmed white

spectacle-like patches around the eyes.

During the late summer and fall, males

are mottled brown. Females and

juveniles are mottled brown year-round

with pale brown eye patches.

Spectacled eiders are diving ducks that

spend most of the year in marine waters

where they primarily feed on bottomdwelling molluscs and crustaceans.

Geographic Range

In the United States, spectacled eiders

historically had a discontinuous nesting

distribution from the Nushagak

Peninsula in southwestern Alaska north

to Barrow and east nearly to the

Canadian border. Today two breeding

populations remain in Alaska. The

remainder of the species breeds in

Arctic Russia. The species throughout

its range, including the Arctic Russian

population, is listed under the Act (16

U.S.C. 1531 et seq.) as threatened

wherever it occurs.

On the Y–K Delta, spectacled eiders

breed mostly within 15 kilometers (km)

(9.3 statute miles (mi)) of the coast from

Kigigak Island north to Kokechik Bay

(Service 1996), with smaller numbers

nesting south of Kigigak Island to

Kwigillingok and north of Kokechik Bay

to the mouth of Uwik Slough. The

coastal fringe of the Y–K Delta is the

only subarctic breeding habitat where

spectacled eiders occur at high density

(3.0–6.8 birds/square kilometer (km2),

1.2–2.6 birds/square mile (mi2)) (Service

1996). Nesting on the Y–K Delta is

restricted to the vegetated intertidal

zone (areas dominated by low wet-sedge

and grass marshes with numerous small

shallow water bodies). Nests are rarely

more than 190 meters (m) (680 feet (ft))

from water and are usually within a few

meters of a pond or lake.

On Alaska’s North Slope, nearly all

spectacled eiders breed north of 70°

latitude between Icy Cape and the

Shaviovik River. Within this region,

most spectacled eiders occur between

Cape Simpson and the Sagavanirktok

River (Service 1996). Spectacled eiders

on the North Slope occur at low

densities (0.03–0.79 birds/km2, 0.01–

0.31 birds/mi2) (Larned and Balogh

1997) within about 80 km (43.2 nautical

miles (nm)) of the coast. During prenesting and early nesting, they occur

most commonly on large shallow

productive thaw lakes usually with

convoluted shorelines or small islands

(Larned and Balogh 1997). Such shallow

water bodies with emergent vegetation

and low islands or ridges appear to be

important as eider nesting and broodrearing habitat on the North Slope

(Derksen et al. 1981, Warnock and Troy

1992, Andersen et al. 1998).

Within the United States, spectacled

eiders molt in Norton Sound and

Ledyard Bay, where they congregate in

large, dense flocks that may be

particularly susceptible to disturbance

and environmental perturbations.

During their time on the molting

grounds (early July through October),

each bird is flightless for a few weeks.

However, there is no time in which all

birds are simultaneously flightless

(Petersen et al. 1999).

Norton Sound is located along the

western coast of Alaska between the Y–

K Delta and the Seward Peninsula. It is

the principal molting and staging area

for females nesting, and for juveniles

raised, on the Y–K Delta (Petersen et al.

1999), the most imperiled of the three

breeding populations. Some Y–K Delta

male spectacled eiders, presumably

subadult males, also molt in Norton

Sound (Petersen et al. 1999). Breeding

adult males from the Y–K Delta have not

been observed to molt in Norton Sound,

but they are known to molt in Ledyard

Bay and in at least two locations in

Russian waters (Petersen et al. 1999). As

many as 4,030 spectacled eiders have

been observed in Norton Sound at one

time (Larned et al. 1995a). Spectacled

eiders molted in the same portion of

eastern Norton Sound each year from

1993 to 1997. Charles Lean (Alaska

Department of Fish and Game (ADFG),

pers. comm. 1999) reported seeing large

flocks in this same area in August and

September from 1982 to 1990,

suggesting that this area has a history of

consistent use by molting spectacled

eiders. Spectacled eiders arrive in

eastern Norton Sound at the end of July

and depart in mid-October (Petersen et

al. 1999). Although overall benthic

biomass (quantity of organisms living on

the sea floor) in this area is thought to

be lower than in other parts of Norton

Sound, the abundance of large

gastropods (e.g., snails, which are

presumably a spectacled eider food

item) is higher in this area than

elsewhere (Springer and Pirtle 1997).

Ledyard Bay is one of the primary

molting grounds for female spectacled

eiders breeding on the North Slope, and

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9147

most female birds molting here are from

the North Slope (Petersen et al. 1999).

Satellite telemetry data suggest that

male spectacled eiders from the North

Slope appear to molt and stage in equal

numbers in Ledyard Bay and the two

primary molting areas in Russia,

Mechigmenskiy Bay and off the coast of

the Indigirka and Kolyma River Deltas

(Petersen et al. 1999). Aerial surveys in

September 1995 found 33,192

spectacled eiders using Ledyard Bay.

Most were concentrated in a 37-km (23-

mi) diameter circle with their

distribution centered about 67 km (36.2

nm) southwest of Point Lay and 41 km

(22.1 nm) offshore (Larned et al. 1995b).

During winter, spectacled eiders

congregate in exceedingly large and

dense flocks in pack ice openings

between St. Lawrence and St. Matthew

Islands in the central Bering Sea (Larned

et al. 1995c). Spectacled eiders from all

three known breeding populations use

this wintering area (Service 1999a); no

other wintering areas are currently

known. Larned and Tiplady (1999)

conservatively estimated the entire

wintering population, and perhaps the

worldwide population, of spectacled

eiders at 374,792 birds (95 percent

Confidence Interval = 371,278–378,305).

Although we are unaware of large

numbers of spectacled eiders wintering

elsewhere, it has been hypothesized that

the known wintering location may not

be the only location used by this

species. Dau and Kistchinski (1977)

hypothesized that spectacled eiders may

be overwintering south of St. Matthew

and Nunivak Islands in Alaska, and

south of the Chukotka Peninsula in

Russia. No spectacled eiders were

observed on one limited reconnaissance

flight south of St. Matthew Island in

1995 (Bill Larned, Service, pers. comm.

2000). We have not surveyed south of

Nunivak Island during winter. To date,

all satellite transmitter data gathered

during winter has originated from the

known wintering area.

Population Status

Between the 1970s and 1990s,

spectacled eiders on the Y–K Delta

declined by about 96 percent, from

48,000 pairs to fewer than 2,500 pairs in

1992 (Stehn et al. 1993). Based upon

surveys conducted during the past few

years, the Y–K Delta breeding

population is now estimated to be about

3,500–4,000 pairs. This estimate is the

product of three separate factors: an

aerial survey population index, a

subsample of intensively groundsearched plots, and a measure of

detection bias (including surveyor

efficiency) on the ground plots.

Detection bias results from the fact that

observers see only a portion of the birds

that are present or that some birds are

more visible than others. The error

associated with the annual estimate is a

measure of the error associated with the

aerial survey index only (as reflected in

the coefficient of variance). The

population estimate for 2000, based on

the number of active and failed nests (or

nesting attempts by breeding pairs),

expanded to the entire aerial survey area

and adjusted for detection bias, was

3,709 active nests on the Y–K Delta. The

aerial survey coefficient of variance was

0.159. The population trend for this

nesting population can be characterized

as stable to slightly increasing over the

last 10 years.

The breeding population on the North

Slope is currently the largest breeding

population of spectacled eiders in North

America. The most recent population

estimate, uncorrected for aerial

detection bias, is 4,744 ± 907 pairs (x ̄ ±

2SE; arithmetic mean plus or minus two

times the standard error associated with

the sample) (Larned et al. 1999).

However, this breeding area is nearly

nine times the size of the Y–K Delta

breeding area. Consequently, the density

of spectacled eiders on the North Slope

is about one quarter that on the Y–K

Delta (Larned and Balogh 1997, Service

1996; Robert Stehn, Service, Migratory

Bird Management (MBM), pers. comm.

2000). Based on our survey data, the

spectacled eider breeding population on

the North Slope does not show a

significant decline throughout most of

the 1990s. The downward trend of 2.6

percent per year is bounded by a 90

percent confidence interval ranging

from a 7.7 percent decline per year to

a 2.7 percent increase per year (Service,

unpubl. data).

We do not know the size of the

nonbreeding segment of any population.

Presumably, nonbreeding birds remain

at sea year-round until they attempt to

breed at age two or three. We do not

know which areas at sea are important

to nonbreeding spectacled eiders.

Previous Federal Action

On December 10, 1990, we received a

petition from James G. King, dated

December 1, 1990, to list the spectacled

eider as an endangered species and to

designate critical habitat on the Yukon

Delta National Wildlife Refuge and the

National Petroleum Reserve-Alaska. We

convened a workshop on February 6

and 7, 1991, to review existing

information and develop priorities and

recommendations for future studies of

both spectacled and Steller’s eiders. On

April 25, 1991, we published a 90-day

finding that the petition had presented

substantial information indicating that

the requested action may be warranted

(56 FR 19073).

On February 12, 1992, a 12-month

finding was signed, determining that

listing was warranted. On May 8, 1992,

we published a proposed rule to list the

spectacled eider as a threatened species

throughout its range (57 FR 19852).

Section 4(a)(3) of the Act requires that,

to the maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time a species is

determined to be endangered or

threatened. We proposed that it was not

prudent to designate critical habitat for

the spectacled eider because there was

no demonstrable benefit that could be

shown at that time (50 CFR 424.12). We

solicited comments from all interested

parties during an extended comment

period (160 days). This extended

comment period was intended to

accommodate Alaskan Natives, who

spend substantial portions of each year

away from their homes engaged in

subsistence activities, and foreign

scientists, whose comments may not

have been received during the normal

90-day period. We particularly sought

comments concerning threats to

spectacled eiders, their distribution and

range, whether critical habitat should be

designated, and activities that might

impact spectacled eiders. Notice of the

proposed rule was sent to appropriate

Federal agencies, State agencies, Alaska

Native regional corporations, borough

and local governments, scientific

organizations, foreign countries, and

other interested parties along with a

request for information that might

contribute to the development of a final

rule.

After a review of all comments

received in response to the proposed

rule, we published the final rule to list

the spectacled eider as threatened

without critical habitat on May 10, 1993

(58 FR 27474). Only 5 of the 24

comments received specifically

addressed critical habitat designation.

Of these, one supported and four

opposed the ‘‘not prudent’’

determination. Those that opposed the

‘‘not prudent’’ finding recommended

that critical habitat be designated, at

least for nesting areas. They also felt

that we should have considered and

provided information on possible

marine critical habitat. In our final rule

to list the spectacled eider as

threatened, we maintained that

designation of critical habitat was not

prudent because no demonstrable

overall benefit could be shown at that

time (50 CFR 424.12).

We initiated recovery planning for the

spectacled eider in 1993. The

Spectacled Eider Recovery Team was

9148 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

formed, consisting of ten members and

four consultants with a variety of

expertise in spectacled eider biology,

conservation biology, population

biology, marine ecology, Native Alaskan

culture, and wildlife management. The

Recovery Team and its consultants

developed the Spectacled Eider

Recovery Plan, which we approved on

August 12, 1996. The Recovery Plan

established the recovery criteria that

must be met prior to the delisting of

spectacled eiders. The plan also

identified the actions that are needed to

assist in the recovery of spectacled

eiders. Additionally, subsequent to the

species listing, new information has

become available concerning the

spectacled eiders’ molting and

wintering habitat. We also now have a

more precise delineation of its breeding

habitat.

On March 10, 1999, the Southwest

Center for Biological Diversity and the

Christians Caring for Creation filed a

lawsuit in Federal District Court in the

Northern District of California against

the Secretary of the Department of the

Interior for failure to designate critical

habitat for five species in California and

two in Alaska. These species include

the Alameda whipsnake (Masticophis

lateralis euryxanthus), the zayante

band-winged grasshopper

(Trimerotropis infantilis), the Morro

shoulderband snail (Helmintholglypta

walkeriana), the arroyo southwestern

toad (Bufo microscaphus californicus),

the San Bernardino kangaroo rat

(Dipodomys merriami parvus), the

spectacled eider, and the Steller’s eider

(Polysticta stelleri).

In the last few years, several court

decisions have overturned Service

determinations for a variety of species

for which we believed designation of

critical habitat was not prudent (e.g.,

Natural Resources Defense Council v.

U.S. Department of the Interior, 113 F.

3d 1121 (9th Cir. 1997); Conservation

Council for Hawaii v. Babbitt, 2 F. Supp.

2d 1280 (D. Hawaii 1998)). Based on the

standards applied in those judicial

opinions and the availability of new

information concerning the species’

recovery and habitat needs, we

recognized the value of reexamining the

question of whether critical habitat for

the spectacled eider is prudent.

Accordingly, the Federal Government

entered into a settlement agreement

whereby we agreed to readdress the

prudency of designating critical habitat

for spectacled eiders.

In another case, Wilderness Society, et

al. v. Babbitt, Civ. No. 98–02395

(D.D.C.), filed on behalf of the

Wilderness Society and seven other

national and regional environmental

organizations in October 1998,

objections were raised to the

Department of the Interior’s decision to

undertake oil and gas leasing in the

NPR–A. One of the plaintiffs’ claims in

this litigation is that our failure to

designate critical habitat (i.e., our not

prudent determination) for spectacled

and Steller’s eiders was arbitrary and

capricious and in violation of the Act.

This claim is currently being litigated.

After reviewing the best scientific and

commercial data available, we proposed

to withdraw our previous finding that

the designation of critical habitat for the

spectacled eider was not prudent. On

February 8, 2000, we proposed the

designation of nine areas in northern

and western Alaska as critical habitat

for the spectacled eider (65 FR 6114).

We requested that all interested

parties submit comments during the

public comment period on the specifics

of the proposal including information,

policy, and proposed critical habitat

boundaries as provided in the proposed

rule. The comment period was initially

open from February 8, 2000, until May

8, 2000. On April 19, 2000, we

published a notice in the Federal

Register extending the closing date for

the open public comment period from

May 8, 2000, to June 30, 2000 (65 FR

20938). On July 5, 2000, we published

a notice in the Federal Register again

extending the closing date for the open

public comment period from June 30,

2000, to August 31, 2000 (65 FR 41404).

On July 31, 2000, we published a notice

in the Federal Register announcing a

public hearing on critical habitat for

spectacled and Steller’s eiders in

Barrow, Alaska (65 FR 46684). On

August 24, 2000, we published a notice

in the Federal Register announcing the

availability of our draft economic

analysis and extending the closing date

for the open public comment period

from August 31, 2000, to September 25,

2000 (65 FR 51577). The resulting

comment period lasted from February 8,

2000, to September 25, 2000 (231 days).

We have made our critical habitat

delineations based upon the best

scientific and commercial information

available. However, we recognize that

we do not have complete information on

the distribution of this species at all

times of the year. Thus, if information

becomes available indicating that

additional or fewer areas are essential

for the conservation of the species, and

may need special management

considerations and protections, we may

reevaluate our critical habitat

designation, including proposing

additional critical habitat or proposing

deletion or boundary refinement of

existing critical habitat.

State of Knowledge of the Spectacled

Eider

Few species make themselves less

available for study than the spectacled

eider. It spends most of the year in the

Bering Sea, far from shore and human

settlements. Summers are spent widely

dispersed across the vast and nearly

inaccessible arctic and subarctic tundra.

Twenty-five years ago, we knew

spectacled eiders were common

breeders on the Y–K Delta, but we knew

only a little about their breeding

biology. Ten years ago, we knew they

were declining in abundance on the Y–

K Delta, but we did not know why. We

also did not know much about where

they spent three-quarters of each year

during the non-breeding season. Since

the species was listed in 1993, we have

learned, among other things—(1) where

most, if not all spectacled eiders spend

the winter; (2) the locations of major

molting areas at sea for each breeding

population; (3) the size of the breeding

populations for each of the three major

breeding areas; (4) that consumption of

spent lead shot is a problem for eiders

breeding on the Y–K Delta; (5) that

subsistence hunting probably did not

cause the observed decline of eiders on

the Y–K Delta, but it might be hindering

or preventing recovery; (6) that direct

interactions with commercial fisheries

does not seem to be a problem for this

species; and (7) that we will probably

never know why this species declined

96 percent on the Y–K Delta since the

1970’s, or whether its North Slope

breeding population is at, below, or

above historical population levels.

We note that the recovery plan for this

species contains valuable biological

information, and is cited throughout

this document. However, the state of our

knowledge regarding eider biology and

distribution has changed markedly since

publication of the spectacled eider

recovery plan. The recovery criteria put

forth in this recovery plan represent

careful consideration on the part of a

panel of highly qualified scientists. The

spectacled eider recovery plan sets forth

several criteria, any of which, if met,

would allow us to consider delisting

specific populations (North Slope, Y–K

Delta, Arctic Russia breeding

populations). One such recovery goal is

that three annual surveys yield a

minimum population estimate of at least

10,000 breeding pairs. An alternative to

the first goal is that a population could

be delisted if a single survey resulted in

a minimum population estimate of over

25,000 breeding pairs. There is a third

recovery goal, that is based upon a fairly

complex statistical measure that

considers population trend data and

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9149

over- and under-protection loss

functions combined with a minimum

breeding population estimate; however,

it is sufficiently complex that it is

beyond the scope of this document to

explain.

The recovery criteria put forth in the

plan may warrant revision in light of

new information. As a result of notable

research and survey efforts directed

towards this species, substantial

portions of the biological information

presented in the recovery plan is now

dated or obsolete. Thus, although the

recovery plan is a valuable source of

information, it cannot always be

considered the final authority on the

natural history and distribution of this

species. Finally, we note that the

recovery plan did not discuss critical

habitat. However, we do not interpret

the plan’s silence on the topic to be an

implicit endorsement that critical

habitat is or is not warranted.

We do not know what critical factor

or factors are limiting the recovery of

this species, but we suspect that these

factors are affecting survival of breeding

adults. Hypotheses that continue to be

implicated in the decline of the eiders

include—(1) lead poisoning on the Y–K

Delta; (2) changes in food supply at sea;

(3) excessive subsistence take; (4)

changes in predator pressure on the Y–

K Delta breeding ground; and (5)

disturbance of nesting birds by

researchers.

Data indicate that lead poisoning is a

serious problem on at least some

portions of the Y–K Delta.

Approximately one third of adult

breeding females near the lower

Kashunuk River exhibited elevated lead

levels in blood, suggesting consumption

of at least one lead pellet during the

breeding season (Flint et al. 1997). In

addition, nine of 43 broods sampled

contained one or more ducklings that

had consumed lead within 30 days of

hatching (Flint et al. 1997). Although we

have seen elevated levels of lead in

long-tailed ducks (oldsquaw) (Clangula

hyemalis) from the North Slope, we do

not know if lead poisoning is a problem

for spectacled eiders there.

Information is just beginning to come

in suggesting a deterioration of habitat

conditions favorable to spectacled

eiders on their wintering grounds in the

Bering Sea. South of St. Lawrence

Island, a number of factors suggest that

the eider’s preferred food resources are

in decline. Organic deposition and

benthic biomass in this area have

declined steadily since the late 1980s.

Oceanographic studies during late

winter (March–April 1999) found that

particulate organic carbon

concentrations in the water column

were too low to support significant

populations of large zooplankton or

krill, indicating that spectacled eiders

must be feeding on the bottom.

However, a long-term trend in benthic

communities continues: The formerly

abundant bivalve Macoma calcarea has

declined relative to another clam

Nuculana radiata, which has 76 percent

lower lipid content and 26 percent

lower energy density (J.R. Lovvorn,

Univ. Wyoming, pers. comm. 2000). The

average length and mass of bivalves has

also declined in the long term (J.M.

Grebmeier and B.I. Sirenko, unpubl.

data). Because nearly all individuals of

this species may spend each winter

occupying an area of ocean less than 50

km (27.0 nm) in diameter, they may be

particularly vulnerable to

environmental changes of limited

geographic extent during this time.

We have estimated that at least 3.75

percent of the breeding adult spectacled

eiders on the Y–K Delta are taken by

subsistence hunters each year, but the

population-level effects of this harvest

are not clear. We note, however, that a

spectacled eider population model

(currently available to the public over

the Internet at http://

abscweb.wr.usgs.gov/research/speimod/

index.htm) suggests that a harvest of this

size may slow or prevent recovery of

this species. We have thus far been

unsuccessful in establishing a

subsistence harvest survey for villages

on the North Slope, and therefore, we

have no estimates of the take from that

breeding population.

We will probably never know what

role predators played in the decline of

eiders on the Y–K Delta, but as Y–K

Delta goose populations rebound, any

negative affect of predators on eider

populations is, hopefully, diminishing.

There is no reason to suspect that

predator pressure on eiders has

increased over historical levels on the

North Slope, except perhaps locally

near human habitations and oil

production facilities.

Our preliminary information indicates

that researchers are not having a notable

effect on nesting spectacled eiders

(Service 1999b), but it nevertheless

remains a concern of Natives residing

on the Y–K Delta. Ground-based studies

for spectacled eiders on the North Slope

are mostly restricted to a very small

portion of their range around developed

oil fields or incidental to other bird

studies around Barrow.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(i) the specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered or a

threatened species to the point at which

listing under the Act is no longer

necessary.

Section 4(b)(2) of the Act requires that

we base critical habitat proposals upon

the best scientific and commercial data

available, after taking into consideration

the economic impact, and any other

relevant impact, of specifying any

particular area as critical habitat. We

may exclude any area from critical

habitat designation if the benefits of

such exclusion outweigh the benefits of

including such area as part of the

critical habitat, provided the exclusion

will not result in the extinction of the

species (section 4(b)(2) of the Act).

Critical habitat receives protection

under section 7 of the Act through the

prohibition against destruction or

adverse modification of critical habitat

with regard to actions carried out,

funded, or authorized by a Federal

agency. Section 7 also requires

conferences on Federal actions that are

likely to result in the destruction or

adverse modification of proposed

critical habitat. In our regulations at 50

CFR 402.02, we define destruction or

adverse modification as ‘‘* * * the

direct or indirect alteration that

appreciably diminishes the value of

critical habitat for both the survival and

recovery of a listed species. Such

alterations include, but are not limited

to, alterations adversely modifying any

of those physical or biological features

that were the basis for determining the

habitat to be critical.’’ Aside from the

added protection that may be provided

under section 7, the Act does not

provide other forms of protection to

lands designated as critical habitat.

Because consultation under section 7 of

the Act does not apply to activities on

private or other non-Federal lands that

do not involve a Federal nexus, critical

habitat designation does not afford any

additional protections under the Act

against such activities.

Section 4 of the Act requires that we

designate critical habitat at the time of

listing and based on what we know at

the time of the designation. When we

designate critical habitat at the time of

listing or under short court-ordered

9150 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

deadlines, we will often not have

sufficient information to identify all

areas of critical habitat. We are required,

nevertheless, to make a decision and

thus must base our designations on

what, at the time of designation, we

know to be critical habitat.

In order to be included in a critical

habitat designation, the habitat must

first be ‘‘essential to the conservation of

the species’’. Within the geographic

range occupied by the species critical

habitat designations identify, to the

extent known using the best scientific

and commercial data available, habitat

areas that provide essential life cycle

needs of the species (i.e., areas on which

are found the primary constituent

elements, as defined at 50 CFR

424.12(b)) and may require special

management consideration or

protection.

Within the geographic area occupied

by the species, we will designate only

areas currently known to be essential

and that may require special

management consideration or

protection. Essential areas should

already have the features and habitat

characteristics that are necessary to

sustain the species. It should be noted,

however, that not all areas within the

occupied geographic range of the

species that contain the features and

habitats that supports the species are

essential and they may or may not

require special management or

protection. We will not speculate about

what areas might be found to be

essential if better information became

available, or what areas may become

essential over time. If the information

available at the time of designation does

not show that an area provides essential

life cycle needs of the species, then the

area should not be included in the

critical habitat designation. Within the

geographic area occupied by the species,

we will not designate areas that do not

now have the primary constituent

elements, as defined at 50 CFR

424.12(b), that provide essential life

cycle needs of the species.

Our regulations state that, ‘‘The

Secretary shall designate as critical

habitat areas outside the geographic area

presently occupied by the species only

when a designation limited to its

present range would be inadequate to

ensure the conservation of the species.’’

(50 CFR 424.12(e)). Accordingly, when

the best available scientific and

commercial data do not demonstrate

that the conservation needs of the

species require designation of critical

habitat outside of occupied areas, we

will not designate critical habitat in

areas outside the geographic area

occupied by the species.

Our Policy on Information Standards

Under the Endangered Species Act,

published in the Federal Register on

July 1, 1994 (59 FR 34271), provides

criteria, establishes procedures, and

provides guidance to ensure that

decisions made by us represent the best

scientific and commercial data

available. It requires our biologists, to

the extent consistent with the Act and

with the use of the best scientific and

commercial data available, to use

primary and original sources of

information as the basis for

recommendations to designate critical

habitat. When determining which areas

are critical habitat, a primary source of

information should be the listing

package for the species. Additional

information may be obtained from a

recovery plan, articles in peer-reviewed

journals, conservation plans developed

by states and counties, scientific status

surveys and studies, and biological

assessments or other unpublished

materials (i.e., gray literature). Our peer

review policy requires that we seek

input from at least three scientists who

are knowledgeable in subject matter

relevant to each rule.

Critical habitat designations do not

signal that habitat outside the

designation is unimportant or may not

be required for recovery. Areas outside

the critical habitat designation will

continue to be subject to conservation

actions that may be implemented under

section 7(a)(1) and to the regulatory

protections afforded by the section

7(a)(2) jeopardy standard and the

section 9 take prohibition, as

determined on the basis of the best

available information at the time of the

action. We specifically anticipate that

federally funded or assisted projects

affecting listed species outside their

designated critical habitat areas may

still result in jeopardy findings in some

cases. Similarly, critical habitat

designations made on the basis of the

best available information at the time of

designation will not control the

direction and substance of future

recovery plans, habitat conservation

plans, or other species conservation

planning efforts if new information

available to these planning efforts calls

for a different outcome.

Designating critical habitat does not,

in itself, lead to recovery of a listed

species. Designation does not create a

management plan, establish numerical

population goals, prescribe specific

management actions (inside or outside

of critical habitat), set aside areas as

preserves, or directly affect areas not

designated as critical habitat. Specific

management recommendations for

critical habitat are most appropriately

addressed in section 7 consultations for

specific projects, or through recovery

planning.

Designation of critical habitat can

help focus conservation activities for a

listed species by identifying areas, both

occupied and unoccupied, which

contain or could contain the habitat

features (primary constituent elements

described below) that are essential for

the conservation of that species.

Designation of critical habitat alerts the

public as well as land-managing

agencies to the importance of these

areas.

Our decision to not designate critical

habitat throughout all of our proposed

critical habitat units does not imply that

these non-designated areas are

unimportant to spectacled eiders.

Projects with a Federal nexus that occur

in these areas, or anywhere within the

range of spectacled eiders, which may

affect spectacled eiders must still

undergo section 7 consultation.

Methods

In determining which areas are

essential to the conservation of

spectacled eiders and may require

special management consideration or

protection, we used the best scientific

and commercial information available.

Our information sources included

1:250,000 and 1:63,360 scale U.S.

Geological Survey topographic maps,

satellite imagery, geographic

coordinates and duration-of-use

information from satellite tagged birds,

geographic coordinates and dates of

aerial observations of birds, ground plot

surveys, ground-based biological

investigations, digital bathymetry

information, digital coastline

information, other Geographic

Information System (GIS) data,

traditional Native knowledge and areaspecific historic trend data, information

received from the public during the

public comment period, and sitespecific species information and

observations.

We discussed or presented our critical

habitat proposal at 19 meetings and one

hearing. We convened a meeting of

experts in the field of eider biology to

provide us with information useful in

setting criteria and boundaries for

habitats essential to the conservation of

the spectacled eider. We considered the

information gathered at our meeting of

eider experts, and information that we

solicited from eider experts who were

unable to attend this meeting. Experts

from whom we sought information

included representatives of State and

Federal agencies, the University of

Alaska, a private environmental

consulting firm, and Native governing

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9151

bodies. We considered all comments

received during the open comment

period, including both written and oral

comments received during meetings and

one public hearing, and comments

received by E-mail, regular mail,

facsimile, and telephone.

We made a concerted effort to solicit

traditional ecological knowledge

regarding habitats that are important to

spectacled eiders. To this end, we

contacted representatives of regional

governmental and non-profit Native

organizations and asked them to

recommend individuals who may have

traditional ecological knowledge of

eiders and their habitats and who may

be willing to review the spectacled eider

critical habitat proposal. We attempted

to contact all individuals identified by

the regional representatives, and

provided those individuals who agreed

to review the proposal with copies of

the proposed rule and additional

informational materials. Comments

submitted by these and other

individuals with traditional ecological

knowledge, transmitted either in written

form or orally during the course of

public meetings, have been considered

during the development of the final

rule.

We reviewed available information

that pertains to the habitat requirements

and preferences of this species. We

reviewed the approach of the

appropriate local, State, Native, and

Federal agencies in managing for the

conservation of spectacled eiders as

well as the recovery tasks outlined in

the Spectacled Eider Recovery Plan.

Comments received through the public

review process provided us with

valuable additional information to use

in decision making, and in assessing the

potential economic impact of

designating critical habitat for the

species.

We sought peer review of our

spectacled eider critical habitat proposal

from three scientists with expertise in

eider biology. All three peer reviewers

provided us with comments, which we

considered in developing our final

designations and in drafting this rule.

Primary Constituent Elements

In accordance with section 3(5)(A)(i)

of the Act and regulations at 50 CFR

424.12 in determining which areas to

propose as critical habitat, we are

required to base critical habitat

determinations on the best scientific

and commercial data available and to

consider those physical and biological

features that are essential to the

conservation of the species and that may

require special management

considerations and protection. Such

requirements include but are not limited

to: space for individual and population

growth, and for normal behavior; food,

water, air, light, minerals, or other

nutritional or physiological

requirements; cover or shelter; sites for

breeding, reproduction, rearing of

offspring; and habitats that are protected

from disturbance or are representative of

the historic geographical and ecological

distributions of a species.

All areas designated as critical habitat

for the spectacled eider contain one or

more of these physical or biological

features, also called primary constituent

elements. These areas constitute our

best assessment of the areas needed for

the species’ conservation using the best

available scientific and commercial data

available. We put forward this

designation acknowledging that we have

incomplete information regarding

breeding ground habitat preferences,

distribution of preferred breeding

ground habitats, migration corridors,

offshore staging areas, marine habitats

used by nonbreeders, marine diet, and

distribution of preferred prey items at

sea. As new information accrues, we

may reevaluate our critical habitat

boundaries.

Primary constituent elements for

Units 1 and 2 (the Central Y–K Delta

Unit and South Y–K Delta Unit,

respectively) include all portions of the

vegetated intertidal zone, and all open

water inclusions within that zone. The

intertidal zone includes all lands

inundated by seawater often enough to

affect plant growth, habit, or community

composition. Plant communities within

this zone include, but are not limited to:

low wet sedge tundra; grass marsh;

dwarf shrub/graminoid (consisting of

grasses and sedges) meadow; high and

intermediate graminoid meadow; mixed

high graminoid meadow/dwarf shrub

uplands.

Primary constituent elements for

Units 3 and 4 (the Norton Sound Unit

and the Ledyard Bay Unit, respectively)

include all marine waters greater than 5

m (16.4 ft) and less than or equal to 25

m (82.0 ft) in depth at mean lower low

water (MLLW), along with associated

marine aquatic flora and fauna in the

water column, and the underlying

marine benthic community.

Primary constituent elements for Unit

5 (the Wintering Unit) include all

marine waters less than or equal to 75

m (246.1 ft) in depth at MLLW, along

with associated marine aquatic flora and

fauna in the water column, and the

underlying marine benthic community.

Criteria Used To Identify Critical

Habitat

We considered several qualitative

criteria in the selection of specific areas

or units for spectacled eider critical

habitat. Such criteria focused on

identifying—(1) areas where eiders have

been documented as consistently

occurring at relatively high densities; (2)

areas where eiders are especially

vulnerable to disturbance and

contamination during breeding, molting,

or wintering; (3) our knowledge of the

habitat’s carrying capacity, which

allows us to determine how much

habitat is needed for the species to

achieve recovery; (4) our certainty in

delineating the areas essential to

survival and recovery given our best

available data; and (5) whether any

areas were the subject of habitat

conservation planning efforts that have

resulted in the preparation of biological

analyses that identify habitat important

for the conservation of the eider.

We used available mapping

conventions to define specific map units

(i.e., Critical Habitat Units). For the

purpose of this final determination,

terrestrial Critical Habitat Units have

been described using state-plane

township grids with resolution to the

Section level. Maritime Critical Habitat

Units have been described using

prominent geographic features,

shorelines, buffer distances, and

geographic coordinates reported in

degrees, minutes, and seconds to enable

mariners to easily determine whether

they are within critical habitat areas.

In defining critical habitat boundaries,

we made an effort to avoid developed

areas, such as towns and other similar

lands, which do not contain the primary

constituent elements of spectacled eider

critical habitat. Existing man-made

features and structures within the

boundaries of the mapped units, such as

buildings, roads, pipelines, utility

corridors, airports, other paved areas,

and other developed areas do not

contain one or more of the primary

constituent elements and are therefore

not critical habitat. Federal actions

limited to those areas, therefore, would

not trigger a section 7 consultation,

unless they may affect the species and/

or primary constituent elements in

adjacent critical habitat.

Critical Habitat Designation

The designated critical habitat

described below constitutes our best

assessment of areas needed for the

conservation of spectacled eiders and is

based on the best scientific and

commercial information available. The

essential features found on the

9152 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

designated areas may require special

management consideration or protection

to ensure their contribution to the

species’ recovery. Area of designated

critical habitat by land ownership is

shown in Table 1. The areas of proposed

and final critical habitat units are shown

in Table 2, along with the percentage

change in size for each of these areas

between the proposed and final rules.

Table 1. Critical habitat designations

in each land-ownership category. Units

are hectares, and are rounded to the

nearest hectare. To convert from

hectares to km2, multiply hectares by

0.01. To convert hectares to acres,

multiply hectares by 2.471. To convert

hectares to mi2, multiply hectares by

0.00386.

Location Federal State Native Private Total

Central Y–K Delta .................................................................................... 190,758 0 65,283 0 256,041

Southern Y–K Delta ................................................................................. 4,509 0 18,734 0 23,243

Y–K Delta Coastal Waters ....................................................................... 0 0 0 0 0

North Slope (land) .................................................................................... 0 0 0 0 0

North Slope (marine) ............................................................................... 0 0 0 0 0

Norton Sound (marine) ............................................................................ 837,641 220,984 0 0 1,058,625

Ledyard Bay (marine) .............................................................................. 1,298,074 97,889 0 0 1,395,963

Wintering Area (marine) ........................................................................... 7,238,306 126,649 0 0 7,364,955

Total .............................................................................................. 9,569,288 445,522 84,017 0 10,098,827

Table 2. Area of land included in

proposal vs. final rule for spectacled

eider critical habitat, rounded to the

nearest km2. Areas may not match those

in our proposal (65 FR 6114). Numbers

in this table reflect refined area

estimates.

Location

Area (km2) Percent

reduction Proposed Final

Y–K Delta (land) ...................................................................................................................................... 4,618 2,793 39

Y–K Delta (marine) .................................................................................................................................. 16,885 0 100

North Slope (land) ................................................................................................................................... 32,336 0 100

North Slope (marine) ............................................................................................................................... 26,088 0 100

Norton Sound (marine) ............................................................................................................................ 17,502 10,586 40

Ledyard Bay (marine) .............................................................................................................................. 21,688 13,960 35

Wintering Area (marine) .......................................................................................................................... 73,650 73,650 0

Total .............................................................................................................................................. 192,767 100,989 48

Unit 1: Central Yukon-Kuskokwim Delta

(Proposed Unit 3)

Unit 1 is comprised of 15 entire

townships and 564 sections within 27

additional townships. Our final

designation encompasses 2,560.4 km2

(256,041 ha) (988.6 mi2) (Table 2), a 16

percent reduction of what we proposed

for this unit (3,037.6 km2 or 1,172.8

mi2). Unit 1 is comprised of the

vegetated intertidal zone between the

Askinuk Mountains and Nelson Island.

The primary constituent elements of

spectacled eider critical habitat in this

unit include all land within the

vegetated intertidal zone, along with all

open-water inclusions within that zone.

The vegetated intertidal zone includes

all lands inundated by tidally

influenced water often enough to affect

plant growth, habit, or community

composition. Waters within this zone

are usually brackish. Vegetative

communities within this zone include,

but are not limited to, low wet sedge

tundra, grass marsh, dwarf shrub/

graminoid (consisting of grasses and

sedges) meadow, high and intermediate

graminoid meadow, mixed high

graminoid meadow/dwarf shrub

uplands, and areas adjacent to open

water, low wet sedge and grass marsh

habitats. Areas within our indicated

border that are not within the vegetated

intertidal zone (e.g., barren mudflats

and lands that are above the highest

high tide line) are not considered

critical habitat. In addition, areas of

existing human development within our

indicated border are not considered

critical habitat.

Unit 2: Southern Yukon-Kuskokwim

Delta (Proposed Unit 4)

Unit 2 is comprised of 103 sections

within 8 townships. Our final

designation encompasses 232.4 km2

(23,243 ha) (89.7 mi2) (Table 2), a 65

percent reduction of what we proposed

for this unit (665.3 km2 or 256.9 mi2).

This unit is comprised of the vegetated

intertidal zone along the coast from

Nelson Island south to Chefornak,

Alaska. The primary constituent

elements of spectacled eider critical

habitat in this unit include all land

within the vegetated intertidal zone,

along with all open-water inclusions

within that zone. This vegetated

intertidal zone includes all lands

inundated by tidally influenced water

often enough to affect plant growth,

habit, or community composition.

Waters within this zone are usually

brackish. Vegetative communities

within this zone include, but are not

limited to, low wet sedge tundra, grass

marsh, dwarf shrub/graminoid

(consisting of grasses and sedges)

meadow, high and intermediate

graminoid meadow, mixed high

graminoid meadow/dwarf shrub

uplands, and areas adjacent to open

water, low wet sedge and grass marsh

habitats. Areas within our indicated

border that are not within the vegetated

intertidal zone (e.g., barren mudflats

and lands that are above the highest

high tide line) are not considered

critical habitat. In addition, areas of

existing human development within our

indicated border are not considered

critical habitat.

Unit 3: Norton Sound (Proposed Unit 6)

Unit 3 includes the waters of Norton

Sound east of 162° 47′, excluding the

indicated waters within Norton Bay.

Our final designation encompasses

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9153

10,586 km2 (4087.3 mi2) (Table 2), a 40

percent reduction of what we proposed

(17,502 km2 (6,757.5 mi2)). The primary

constituent elements of spectacled eider

critical habitat in this unit include the

marine waters greater than 5 m (16.4 ft)

and less than or equal to 25 m (82.0 ft)

in depth at MLLW, along with

associated marine aquatic flora and

fauna in the water column, and the

underlying marine benthic community.

Unit 4: Ledyard Bay (Proposed Unit 7)

Unit 4 includes the waters of Ledyard

Bay within about 74 km (40 nm) of

shore, excluding waters less than 1.85

km (1 nm) from shore. Our final

designation encompasses 13,960 km2

(5,390.0 mi2), a 35 percent reduction of

what we proposed (21,688 km2 (8,373.7

mi2)) (Table 2). The primary constituent

elements of spectacled eider critical

habitat in this unit include marine

waters greater than 5 m (16.4 ft) and less

than or equal to 25 m (82.0 ft) in depth,

along with the associated marine

aquatic flora and fauna in the water

column, and the underlying marine

benthic community.

Unit 5: Wintering Area (Proposed Unit

8)

Unit 5 includes the U.S. waters south

of St. Lawrence Island between the

latitudes 61° N and 63° 30′ N, and

between the longitudes 169° W and 174°

30′ W. No portion of St. Lawrence Island

or Russia is included in Unit 5. Our

final designation encompasses 73,650

km2 (28,436.3 mi2), the same as what we

proposed. The primary constituent

elements of spectacled eider critical

habitat in this unit include marine

waters less than or equal to 75 m (246.1

ft) in depth, along with the associated

marine aquatic flora and fauna in the

water column, and the underlying

marine benthic community.

Rationale for the Final Designation

This final rulemaking reflects

significant changes to critical habitat

areas from the proposed rulemaking. We

have substantially reduced the area of

some critical habitat units, and

completely eliminated others. Our final

rule represents a 48 percent reduction in

total area over what we proposed as

critical habitat (Table 2). We have not

added area to existing critical habitat

units, or added new critical habitat

units. The proposed rule was based on

the best scientific and commercial

information then available. The

settlement agreement mandated a short

time line for our evaluation of critical

habitat. Consequently, when we

developed the proposed rule we

included all areas that we thought might

be essential to the conservation of the

species, based on the best available

commercial and scientific information.

Following publication of the proposed

rule we undertook an exhaustive effort

to gather additional information that

would help us identify more precisely

those areas essential to the conservation

of the species (see methods). Specific

rationale for retention, modification, or

exclusion of the proposed critical

habitat in this final rulemaking are

explained in detail below.

North Yukon-Kuskokwim Delta

(Proposed Unit 1)

We excluded proposed Unit 1, the

North Y–K Delta Unit, from our final

designation because we determined that

most of the habitat within the narrow

band of coastal fringe was not suitable

for spectacled eiders. We are uncertain

what features of this habitat make it less

suitable to eiders, but eider experts who

are familiar with this area indicate that

it is physiographically distinct from the

portions of the vegetated intertidal zone

used by eiders elsewhere on the delta.

Our inspection of large scale (1:63,360)

topographic maps leads us to the same

conclusion. The complete lack of eider

observations throughout most of this

region also supports this contention. We

recognize that there may be a very small

inclusion of habitat within this area that

is suitable for breeding spectacled

eiders, but we have been unable to visit

the site during the breeding season to

determine its suitability due to land

ownership issues and logistical

difficulties. Very few spectacled eider

observations have been made by

biologists flying annual systematic

aerial surveys in this proposed unit

between 1993–1999 (5 of 916

observations delta-wide or 0.5 percent

of sightings on 19 percent of proposed

terrestrial CH on the Y–K Delta),

suggesting that while some suitable

nesting habitat may be found in this

area, its contribution to the conservation

of this species at this time is low. Based

upon the apparent lack of suitable

nesting habitat for spectacled eiders in

this unit, we have concluded that this

area does not now, and may not ever,

have contributed significantly to the

maintenance of the bird’s population in

the Y–K Delta. In evaluating the current

and potential contribution of this unit to

the recovery of the species and meeting

the recovery goals identified in the

species’ recovery plan, we have

concluded that this unit’s contribution

is currently low and its contribution to

the future recovery of the species is

limited. Consequently, we believe that

this area is not essential to the

conservation of the species.

Proposed Unit 2

We note that our proposed critical

habitat designation did not contain a

Unit 2. Our non-sequential numbering

of proposed units resulted from a lastminute consolidation of what were once

numbered Proposed Units 1 and 2 into

one unit, and a failure on our part to renumber the remaining proposed units.

We note that our draft economic

analysis contained maps that did not

exactly match the numerical

designations in our critical habitat

proposal, although the areas included

within the aggregate proposed borders

were identical.

Unit 1: Central Yukon-Kuskokwim Delta

(Proposed Unit 3)

We reduced the size of Unit 1

(proposed Unit 3), the Central Y–K Delta

Unit, based upon topography

information from large scale (1:63,360

scale) maps, additional analysis of aerial

survey data, information from biologists

with extensive field experience in the

area and the advice of eider experts. We

excluded land that appeared to be over

7.6 m (25.0 ft) in elevation, and areas

under 7.6 m (25 ft) in elevation that

field biologists described as not suitable

for eiders. Field reconnaissance

indicates that the plant communities

found on areas above 7.6 m in elevation

do not provide the habitat and

constituent elements characteristically

used by spectacled eiders for nesting.

The excluded areas under 7.6 m (25 ft)

in elevation appear to be outside of the

vegetated intertidal zone used by

spectacled eiders. Furthermore, aerial

survey data indicated that no eiders

were observed in the excluded portions

(both greater than and less than 7.6 m

(25 ft) in elevation) of this proposed unit

from 1993–1999. Consequently, we have

determined that the excluded areas are

not essential to the conservation of the

species because these areas do not

contain the primary constituent

elements that we believe are important

in successful nesting or brood-rearing.

The Y–K Delta breeding population of

spectacled eiders cannot reasonably be

expected to reach established any of the

species’ recovery goals (Service 1996) in

the absence of Units 1 and 2, where over

95 percent of documented observations

from aerial surveys have occurred. We

believe that the entire area being

designated is critical to the survival and

recovery of the species because the

currently occupied area represents what

biologists often refer to as the ‘‘core

breeding area’’ for this species following

the 96 percent population decline on

the Y–K Delta since the 1970s. Further

restriction of their breeding range may

9154 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

preclude the species ability to achieve

recovery thresholds. Indeed, adverse

modification of these units would

probably result in the eventual loss of

this population, which would represent

a loss of a significant portion of the

species’ range, thus precluding eventual

recovery of the species. Therefore, we

have determined that the area we have

designated as critical habitat is essential

to the conservation of the species.

Furthermore, we have determined that if

this species achieves historical nesting

densities in Units 1 and 2 then the

species will exceed the recovery

thresholds set forth in the spectacled

eider recovery plan for a population.

We believe that special management

considerations and protections may be

needed for the essential features

(constituent elements) found within

Unit 1, primarily because lead shot

present in the environment poses a

continuing threat to the species.

Unit 2: South Yukon-Kuskokwim Delta

(Proposed Unit 4)

We reduced the size of proposed Unit

4, the South Y–K Delta Unit, based upon

topography information from large scale

(1:63,360 scale) maps, additional

analysis of aerial survey data, and the

advice of eider experts. We excluded

land that appeared to be over 7.6 m

(25.0 ft) in elevation and areas under 7.6

m (25 ft) in elevation that are not coastal

vegetated intertidal zone in nature, but

rather occur somewhat inland within

the flood basin of the Kolavinarak River,

which connects Baird Inlet to the Bering

Sea. We have been unable in the past to

place field crews on the ground in this

Unit due to land ownership issues and

logistical difficulties. Doing so is a high

priority. Few spectacled eider

observations have been made by

biologists flying annual systematic

aerial surveys in the excluded portion of

this proposed unit from 1993–1999 (2 of

916 observations delta-wide).

Consequently, we have determined that

the excluded portions of this proposed

unit that are over 7.6 m in elevation are

not essential to the conservation of the

species because they do not contain the

primary constituent elements that we

believe are important in successful

nesting or brood-rearing. Although we

have not made site visits to the

excluded areas that are not over 7.6 m

in elevation, we feel safe in assuming

that they are not essential to spectacled

eiders because we have observed a total

of only 0 to 2 eiders each year there in

seven years of aerial surveys, and

because we suspect that the area differs

physiographically from the coastal

vegetated intertidal zone used by eiders

in this area because, while at similar

elevations to the coastal intertidal zone,

it occurs somewhat inland within the

flood basin of the Kolavinarak River,

which connects Baird Inlet to the Bering

Sea. Our aerial survey data indicates

that, for reasons unknown to us, this

area is either very rarely used by eiders,

or is not used by eiders at all.

As noted above, the Y–K Delta

breeding population of spectacled eiders

cannot reasonably be expected to reach

established recovery goals (Service

1996) in the absence of Units 1 and 2,

where over 95 percent of documented

observations from aerial surveys have

occurred. Therefore, we have

determined that the area we have

designated as critical habitat is essential

to the conservation of the species. We

believe that special management

considerations and protections may be

needed for the essential features

(constituent elements) found within

Unit 2, primarily because lead shot

present in the environment poses a

continuing threat to the species.

Y–K Delta Marine Unit (Part of Proposed

Units 1, 3, and 4)

Although we proposed to designate as

critical habitat the marine waters within

40 km (21.6 nm) of our proposed

terrestrial critical habitat on the Y–K

Delta, we have not designated these

waters as critical habitat in our final

rule. Nearly all of our information about

the use of this area derives from 43 birds

marked with satellite transmitters.

Although satellite telemetry confirms

the use of these offshore waters by many

of the post-breeding spectacled eiders

(Petersen et al. 1999), the duration of

use is best described in terms of days

rather than weeks or months. We do not

know if birds are feeding in these

waters, are loafing, or are acclimating

from a freshwater environment to one of

saltwater. Without better information

explaining how the spectacled eiders

use this marine area, we are unable to

determine which, if any, physical or

biological features within the area

contribute towards the conservation of

the species (e.g. the primary constituent

elements would likely differ if the birds

use the area primarily for loafing or

acclimating to saltwater versus if they

are feeding in the area). We do know

that the spectacled eiders do not nest,

molt, or winter in this marine area. We

also know that they do not concentrate

in the area or appear to use it for any

great length of time. Furthermore, we

have no reason to believe that this area,

or any portion thereof, is necessary for

success in nesting, molting or wintering,

all critical life stages for this species.

Therefore, based upon our knowledge at

this time, we do not believe that this

marine area is essential to the

conservation of the species.

North Slope (Proposed Unit 5)

Although we proposed to designate as

critical habitat 402 townships on the

North Slope and all marine waters

within 40 km (21.6 nm) of these

townships, we have not designated this

area as critical habitat in our final rule.

In our proposed rule we stated: ‘‘Absent

trend information, it is impossible to

know how much land on the North

Slope is essential for conservation of the

species. Erring in favor of conservation

of the species, we believe that, with

eight exceptions, those townships in

which spectacled eider observations

were made during annual systematic

aerial surveys of breeding eiders from

1992 to 1998 are essential to the species’

conservation.’’ When we published our

proposal to designate critical habitat we

believed that the critical habitat

designation should broadly identify

those areas that we believe are essential

to the conservation of the species. The

comments we received in response to

the proposal suggested that we should

define critical habitat in a more specific

and precise manner. Further, some of

the commenters believed that our

proposed designation was not consistent

with the Act’s definition of critical

habitat (see Summary of Comments and

Recommendations section). Therefore,

we carefully reviewed the best available

information to ensure that our approach

and the designation itself provided the

greatest benefit to the eider and met the

requirements of the Act.

The specificity with which we can

designate critical habitat is constrained

by the limited information currently

available (see State of Knowledge of the

Spectacled Eider section). We are

currently working to increase our

knowledge of the breeding habitat needs

of the spectacled eider on the North

Slope and to improve our ability to

delineate any areas essential to the

conservation of the species. Our FY

2001 budget included $600,000

specifically earmarked by Congress to

fund work by the Alaska Sea Life Center

(ASLC) and the Service on recovery

actions for the spectacled and Steller’s

eiders, including the development of

better information upon which to base

critical habitat delineations. We will

work closely with the ASLC to identify

the studies that would be most helpful.

In particular, we will seek studies that

would provide information that will

help us to identify the habitat needs of

both eider species, and we will seek the

assistance of our partners in carrying

out such studies.

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9155

However, we must make our

designation based on the best

information currently available, and in

that context we sought to determine

whether, at this time, it would be

appropriate for our final designation to

include the entire area on the North

Slope as proposed. The spectacled eider

was listed primarily due to its drastic

decline on the Y–K Delta. Although at

the time of listing, Warnock and Troy

(1992) noted preliminary data that

suggested at least a local decline of

spectacled eiders in the Prudhoe Bay

area, subsequent analyses of data no

longer support that conclusion (Declan

Troy, pers. comm, 1999). There is no

other systematic data suggesting a

historic decline in spectacled eider

numbers on the North Slope prior to

listing. In addition, there has not been

a statistically significant trend in the

population during the nine years we

have been monitoring it. However, we

note that we were able to determine that

even the Y–K Delta population, which

underwent a 96 percent decline, can

achieve recovery on a subset of its

currently occupied territory by

achieving something approximating

historical densities on that subset area

(i.e., within our designated critical

habitat borders). If the North Slope

population has undergone a decline, we

and the eider experts believe it is

reasonable to assume that the North

Slope population could also achieve

recovery on a subset of its currently

occupied breeding territory through

increases in density to historic levels. In

short, even if this species has declined

drastically, we do not believe that it

would require all of its currently

occupied breeding range on the North

Slope to reach recovery thresholds, and

therefore a final designation including

the entire area proposed on the North

Slope is not appropriate at this time.

While the entire North Slope is not

required for spectacled eiders to reach

recovery thresholds, this population

cannot reasonably be expected to reach

established recovery goals (Service

1996) in the complete absence of

breeding habitat on the North Slope.

Therefore, we believe that some subset

of the North Slope breeding habitat is

essential to the conservation of the

species. Moreover, we believe that these

lands may require special management

considerations and protections given the

extent of oil and gas exploration and

development has occurred in the area

and may reasonably be anticipated in

the future.

We sought to determine which subset

of the area proposed should be included

in the final designation. However, we

lack reliable scientific data about the

habitat preferences of nesting females

and females with broods. Therefore, we

are currently unable to ascertain why

females nest in one area, but not in

another that appears to provide similar

habitat conditions. However, we can use

the actual distribution of a species as

evidence of which areas have the habitat

features essential to the conservation of

the species, even if we do not have

sufficient information to describe

precisely what discriminates those

features from other similar, but nonessential features.

We thoroughly examined available

bird distribution data in a number of

ways to ascertain which portion of the

entire breeding area was needed to

conserve the species (i.e., reach the

recovery thresholds set forth in the

spectacled eider recovery plan). We

used a number of different techniques to

evaluate the observation data. This

included geographical analysis of the

observation data, including density

isopleths, minimum convex polygons

around aerial observations at 10 percent

intervals, eider density kernels at 10

percent intervals, and eider densities on

a township by township basis. These

complex GIS-based spatial analyses can

help us answer questions such as (1)

How much area is encompassed by 20,

40, 60, or 80 percent of the birds? (2)

Which townships have the highest

density of eiders? (3) Which townships

would we choose if we wanted to

encompass 30, 50, 70, or 90 percent of

the best habitat (as indicated by bird

density)? and (4) How many townships

would we need to achieve recovery

thresholds if every township were to

eventually support eider populations as

dense as the current most densely

populated township? These analyses

offered methods that can be used to

identify areas that can be included

within critical habitat borders, and since

the entire area incorporated into these

analyses is utilized for nesting by the

species at varying densities, it was

assumed that they contained the

physical and biological features

necessary for successful breeding and

brood rearing and thus may be essential

to the conservation of the species.

Unfortunately, none of the analyses

helped us in determining which specific

areas were essential to the conservation

of spectacled eiders because each was

based on a statistical threshold that may

or may not be confirmed in future

scientific studies.

Nonetheless, the designation of

critical habitat on a subset of the area

proposed based on such methods would

be consistent with the Act’s requirement

to use the best available information.

However, the relative benefits to the

species of such a designation must also

be weighed in our decision as to where

to designate critical habitat. Subsection

4(b)(2) of the Act allows us to exclude

areas from critical habitat designation

where the benefits of exclusion

outweigh the benefits of designation,

provided the exclusion will not result in

the extinction of the species.

The benefits of including lands in

critical habitat are often relatively small.

The principal benefit of any designated

critical habitat is that activities in such

habitat that may affect it require

consultation under section 7 of the Act.

Such consultation would ensure that

adequate protection is provided to avoid

adverse modification of critical habitat.

However, it is important to note that, as

result of the spectacled eider being

listed as a threatened species, we

already consult on activities on the

North Slope that may affect the species.

While these consultations do not

specifically consider the issue of

adverse modification of critical habitat,

they address the very similar concept of

jeopardy to the species. Under most

circumstances, consultations under the

jeopardy standard will reach the same

result as consultations under the

adverse modification standard.

Implementing regulations (50 CFR Part

402) define ‘‘jeopardize the continued

existence of’’ and ‘‘destruction or

adverse modification of’’ in virtually

identical terms. Jeopardize the

continued existence of means to engage

in an action ‘‘that reasonably would be

expected * * * to reduce appreciably

the likelihood of both the survival and

recovery of a listed species.’’

Destruction or adverse modification

means an ‘‘alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species.’’ Common to both

definitions is an appreciable detrimental

effect on both survival and recovery of

a listed species, in the case of critical

habitat by reducing the value of the

habitat so designated. Thus, actions

satisfying the standard for adverse

modification are nearly always found to

also jeopardize the species concerned,

and the existence of a critical habitat

designation does not materially affect

the outcome of consultation. Additional

measures to protect the habitat from

adverse modification are not likely to be

required.

Since the spectacled eider was listed

in 1993, we have consulted with Federal

agencies on a variety of actions to

evaluate impacts to the species on the

North Slope. In most cases, the

consultations have determined that the

actions would not adversely affect

spectacled eiders because the projects

9156 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

occurred during seasons when the

eiders are absent and no permanent

impact to habitat would result or

because only a minimal amount of

habitat would be affected or would

occur in areas where the species occurs

at low densities. In only a few cases

have we determined that a proposed

project included habitat alterations that

might adversely affect spectacled eiders.

Our biological opinions on these

consultations provided reasonable and

prudent measures designed to minimize

the incidental take of the proposed

projects on spectacled eiders. When

applicable, the reasonable and prudent

measures included provisions to

minimize the proposed project’s impact

to habitat. Therefore, because of the

species’ abundant habitat on the North

Slope and the protections provided

though the current consultation process,

we can envision no benefit that critical

habitat designation would have

imparted in the consultations conducted

to date. Furthermore, we have

considered the spectacled eiders

conservation needs, and we believe that

future section 7 consultations on any

proposed action on the North Slope that

would result in an adverse modification

conclusion would also result in a

jeopardy conclusion. Thus, the

principal regulatory benefit from a

critical designation for the spectacled

eider on the North Slope is expected to

be small.

There are also educational benefits

associated with designation as critical

habitat, such as informing the public

which areas are important for the longterm survival and conservation of the

species. Critical habitat could also

potentially foster a sense of ownership

for the resource, encouraging concerned

individuals to act as caretakers of

important habitat. However, such

benefits are largely negated by our

inability to identify specific areas on the

North Slope that are essential to

conservation of the species (i.e.,

providing meaningful educational

information is dependent upon the

ability to provide meaningful

information on the conservation needs

of the species). Furthermore, we have

been working closely with North Slope

residents for years in order to engender

support for eider conservation. We have

worked to eliminate use of lead shot and

to minimize subsistence harvest.

Because of these continuing cooperative

efforts, we are confident North Slope

residents and their local government

bodies are well aware of the species’

plight and the need to address threats

and protect habitat. Likewise,

presumably because the North Slope is

sparsely populated by humans,

relatively few Federal projects occur on

the North Slope that require

consultation under section 7 and most

are conducted, funded, or permitted by

relatively few Federal agencies. As a

result, the Federal agencies involved

with activities on the North Slope are

aware of the spectacled eider’s

threatened status and the need to

consult, and additional educational

benefits would be very limited. For all

these reasons, then, we believe that

designation of critical habitat has little

educational benefit on the North Slope.

In contrast, the benefits of excluding

the North Slope from our critical habitat

designation appear to be greater than the

benefits of including it. We

acknowledge that some portion of the

proposed North Slope unit is essential

to the recovery of the species. However,

as discussed above, there is insufficient

information available today with which

to delineate with confidence specific

areas essential to the recovery of the

species. To designate an area at this

time, without a more reliable biological

basis, would likely convey an inaccurate

message about the size and location of

the area needed for recovery. We believe

there are strong implications regarding

habitat importance that are associated

with critical habitat designation. We

believe that we have this level of

reliable information for the other

important spectacled eider habitats, but

we do not believe that we have

information that is equally reliable for

the North Slope breeding area.

Delineating critical habitat on the North

Slope at this time may mislead Federal

agencies and others wishing to carry out

activities on the North Slope about the

areas that are truly essential to the

recovery of the species.

In summary, at this time the benefits

of including the North Slope in critical

habitat for the spectacled eider include

minor, if any, additional protection for

the eider and would serve little or no

educational functions. The benefits of

excluding the North Slope from being

designated as critical habitat for the

spectacled eider include the

preservation of partnerships that may

lead to future conservation actions, and

eliminating the negative effects that we

believe would result from a designation

based on limited, unpersuasive

biological information currently

available to us. We have determined

that the benefits of exclusion of the

North Slope from critical habitat

designation outweigh the benefits of

delineating critical habitat on the North

Slope. Furthermore, we have

determined that this exclusion will not

result in the extinction of the species.

Consequently, in accordance with

subsection 4(b)(2) of the Act, these lands

have not been designated as critical

habitat for the spectacled eider.

We will continue to protect occupied

breeding habitat on the North Slope as

appropriate through section 7

consultations, the section 9 prohibition

on unauthorized take, and other

mechanisms. We will expand our

conservation efforts with the Native

community, industry, local

governments, and other agencies and

organizations on the North Slope to

address the recovery needs of the eider.

Additionally, we will soon embark upon

a complete revision of the spectacled

eider recovery plan, and will address

our recovery goals for each population.

We will continue to closely monitor the

current population trend of North Slope

spectacled eiders. We will continue our

efforts to develop a visibility correction

factor (survey information that would

allows us to refine our population

estimates) for this species on the North

Slope. This is particularly important as

the preliminary information suggests the

very real possibility that the North

Slope population may be large enough

to warrant delisting (see our response to

Comment 3), but that our current

surveys are simply not detecting a high

enough proportion of birds to indicate

that this is the case. We hope to initiate

ground-based studies outside of

currently developed areas to get an

indication of true breeding density and

nesting success for this species on the

North Slope.

Should additional information

become available that changes our

analysis of the benefits of excluding any

of these (or other) areas compared to the

benefits of including them in the critical

habitat designation, we may revise this

final designation accordingly. Similarly,

if new information indicates any of

these areas should not be included in

the critical habitat designation, we may

revise this final critical habitat

designation. If, consistent with available

funding and program priorities, we elect

to revise this designation, we will do so

through a subsequent rulemaking.

Although we also proposed to

designate as critical habitat all marine

waters within 40 km (21.6 nm) of the

terrestrial portion of our proposed North

Slope Unit, we have not designated

these waters as critical habitat in our

final rule. Our information on the

importance of the Beaufort Sea to

migrating spectacled eiders, in both

spring and fall, does not currently

support designation of critical habitat.

Only one spectacled eider was

observed among 420,000 eiders

migrating past point Barrow during

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9157

spring (Woodby and Divoky 1982),

suggesting that either the timing of this

survey was not concurrent with

spectacled eider spring migration, or

spectacled eiders do not migrate along

the Beaufort Sea coast in spring. Little

else is known of North Slope spectacled

eider spring migration routes.

During Beaufort Sea sea duck and

waterbird surveys flown from shore to

81 km (43.7 nm) offshore during June,

July, August, and September 1999,

biologists observed only two flocks of

eiders, both with four or fewer birds per

group. (Bill Larned, Service, MBM, pers.

comm. 1999; TERA 1999). No

spectacled eiders were observed on

these offshore surveys during June and

July, nor were spectacled eiders seen on

surveys of the near shore lagoon areas

and within bays. However, eider species

in summer plumage are exceedingly

difficult to distinguish from one another

on aerial surveys. Nine groups of

unknown eiders were observed in the

vicinity of Harrison Bay between August

31 and September 2, 1999. Aerial

observers hypothesize that spectacled

eider family groups use the waters

offshore of the Colville River Delta and

west, and within Harrison Bay during

the summer (Bill Larned, Service, MBM,

pers. comm. 1999). Satellite telemetry

supports this hypothesis. Most satellitetagged post-nesting female spectacled

eiders from Prudhoe Bay used Harrison

Bay briefly (5 of 13 tagged birds were

detected there once from satellite

telemetry data that is acquired every 3

days, another 5 of 13 were detected

there twice, resulting in a mean

residence time of at least 4 days) (TERA

1999). Satellite telemetry data from 2000

did not indicate that Harrison Bay

received much use by eiders. However,

none of the birds that were implanted

with transmitters during the summer of

2000 were successful breeders (i.e., if

Harrison Bay is used during brood

rearing, birds without broods may not

have reason to go there) (Declan Troy,

TERA, pers. comm. 2000). Satellite

telemetry indicates that molt migration

and fall migration of North Slope

spectacled eiders from Prudhoe Bay and

points east takes place in the offshore

waters of the Beaufort and Chukchi Seas

(Peterson et al. 1999). We believe that

the Beaufort and Chukchi seas may

contain important habitat for eiders that

nest west of Prudhoe Bay as well.

Although satellite telemetry confirms

the use of these offshore waters by many

of the post-breeding spectacled eiders

from Prudhoe Bay (Petersen et al. 1999,

TERA 1999), the duration of use is best

described in terms of days rather than

weeks or months. We do not know if

birds are feeding in these waters, are

loafing, or are acclimating from a

freshwater environment to one of

saltwater. Without better information

explaining how the spectacled eiders

use this marine area, we are unable to

determine which, if any, physical or

biological features within the area

contribute towards the conservation of

the species (e.g. the primary constituent

elements would likely differ if the birds

use the area primarily for loafing or

acclimating to saltwater versus if they

are feeding in the area). We do know

that the spectacled eiders do not nest,

molt, or winter in this marine area. We

also know that they do not concentrate

in the area or appear to use it for any

great length of time. Use of the area is

perhaps best described as a migration

corridor, and perhaps as a brood staging

area prior to migration. We do not have

enough information to conclude that

this area, or any portion thereof, is

necessary for successful nesting,

molting or wintering, all critical life

stages for this species. Therefore, based

upon our knowledge at this time, we do

not believe that this marine area is

essential to the conservation of the

species.

Unit 3: Norton Sound (Proposed Unit 6)

We reduced the size of proposed Unit

6, the Norton Sound Unit, from 17,502

km2 (6757.5 mi2) to 10,586 km2 (4087.3

mi2), a 40 percent reduction in size

(Table 2). This modification was based

upon information gained from

overlaying our eider observations and

satellite telemetry locations upon digital

bathymetry data from the National

Oceanic and Atmospheric

Administration (NOAA) and

information obtained from eider experts.

Only one spectacled eider observation

and three satellite derived locations

have occurred in the excluded portions

of this proposed area from 1993–1999.

None of these observations occurred in

Norton Bay, one of the excluded

portions of this unit. We do not know

whether any of the observations within

the excluded area along the western

edge of this unit represent molting

birds. We are fairly certain, however,

that birds do not congregate in this

excluded area to molt, and suspect that

our sparse observations of birds in the

excluded portion of this unit represent

birds on their way from the breeding

grounds to the molting grounds or from

the molting grounds to the wintering

grounds. Consequently, we have

determined, based upon the likelihood

that birds do not normally molt in the

excluded area, and the low level of eider

use received by the excluded area, that

the excluded areas are not essential to

the conservation of the species.

While the recovery plan for the

spectacled eider does not identify

recovery goals specifically for molting

habitat, it is clear that if the Norton

Sound molting area were destroyed or

degraded so that it was no longer able

to be utilized by the species, the

recovery and the conservation of the Y–

K Delta population of the species would

be imperiled. We believe that the entire

area within our modified border is

essential to the conservation of the

species due to—(1) the extremely high

and regular use of the area for an

extended period of time by birds that

are known to be undergoing a flightless

molt; (2) the high biomass of gastropods

in the area; (3) the energetic demands

placed upon the birds while they are

molting; and (4) the assertion by

Petersen et al. (1999), that it is the only

documented molting area for breeding

female spectacled eiders from the Y–K

Delta (the area where eiders have

declined by 96 percent). As many as

4,030 spectacled eiders have been

observed in one portion of eastern

Norton Sound at one time (Larned et al.

1995a). Use of this area by molting

eiders has been documented regularly

from 1982 to 1999 (Charles Lean, ADFG,

pers. comm. 1999; Bill Larned, Service,

MBM, pers. comm. 1999; Petersen et al.

1999). The area is used by spectacled

eiders from mid-July until the end of

October (Petersen et al. 1999). For

several weeks during this time, each

bird experiences a period of

flightlessness during molt, followed by

the energetic demands incurred by

feather growth. Energy needs of

waterfowl during molt are high

(Hohman et al. 1992). The benthic

biomass in the portion of Norton Sound

that spectacled eiders inhabit

apparently meets the high metabolic

needs for the many birds that molt

there. Indeed, the abundance of large

gastropods is higher in this area than

elsewhere in Norton Sound (Springer

and Pirtle 1997).

We believe that special management

considerations and protections may be

needed for these essential features

(constituent elements) found within

Unit 3, because a fuel distribution hub

for western Alaska exists in Norton

Sound and large volumes of heating oil,

diesel fuel, and gasoline are transported

through this area each year. If a release

of these materials occurs at any time of

year such that it affects the benthic

community used by eiders for food or if

a release occurs such that it affects the

eiders directly, the consequences to the

Y–K Delta breeding population could

prove catastrophic for the species. In

addition, we understand that a

9158 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

commercially viable snail fishery may

exist in the vicinity, and future

overexploitation of the snail resource

could result in adverse modification of

critical habitat and subsequent harm to

the most imperiled spectacled eider

breeding population.

Unit 4: Ledyard Bay (Proposed Unit 7)

We reduced the size of proposed Unit

7, the Ledyard Bay Unit, from 21,688

km2 (8,373.7 mi2) to 12,369 km2 (4775.7

mi2), a 43 percent reduction in size

(Table 2). We modified the borders of

this unit based upon traditional Native

environmental knowledge, information

gained from overlaying our observations

upon NOAA digital bathymetry data,

and advice from eider experts.

Local Natives have observed that

spectacled eiders do not venture near

shore in Ledyard Bay, stating that they

are exploiting krill populations which

remain at least several miles offshore.

Although we do not know anything

about the dietary preferences of eiders

in this area, satellite telemetry and

aerial survey data confirm the

observation that the birds congregate

more than 1 nm offshore. Therefore, we

concluded that waters in the eastern and

southern portions of this unit within 1

nm of the shore do not contain the

physical or biological features essential

to the conservation of the species and

have excluded them from our final

designation.

Digital bathymetry data from NOAA

indicates that spectacled eiders in

Ledyard Bay make almost exclusive use

of waters between 5 and 25 m (16.4 to

82.0 ft) in depth. We have modified the

description of primary constituent

elements to reflect the information

gained from our bathymetric overlay.

This change in description of the

primary constituent elements leads us to

conclude that the western portion of

this unit does not contain the physical

or biological features essential to the

conservation of the species. The western

portion of the area that we excluded

from final critical habitat designation

exceeds 25 m (82.0 ft) in depth, except

for two small disjunct areas that are

between 20–25 m in depth where no

eiders have been documented. Only

three satellite-derived locations have

been recorded in the western excluded

portions of this proposed area from

1993–1999. These satellite fixes could

easily be from birds that were on their

way from the molting area to their

wintering area south of St. Lawrence

Island. We have never made direct

observations of spectacled eiders in

these excluded waters.

While the recovery plan for the

spectacled eider does not identify

recovery goals specifically for molting

habitat, it is clear that if the Ledyard

Bay molting area were destroyed or

degraded so that it was no longer able

to be utilized by the species, the

recovery and the conservation of the

North Slope population of the species

would be imperiled. We believe that the

entire area within our modified border

is essential to the conservation of the

species due to—(1) the extremely high

use of the area by birds that are known

to be undergoing a flightless molt; (2)

the energetic demands placed upon the

birds while they are molting; and (3) the

assertion by Petersen et al. (1999) that

it is the principle molting area for

breeding female spectacled eiders from

the North Slope, and most female birds

molting here are from the North Slope

(Petersen et al. 1999).

Male spectacled eiders from the North

Slope appear to molt and stage in equal

numbers in Ledyard Bay and the two

primary molting areas in Russia:

Mechigmenskiy Bay and off the coast of

the Indigirka and Kolyma River Deltas

(Petersen et al. 1999). Ledyard Bay is

used by eiders from late June through

mid-October (Petersen et al. 1999). As

stated earlier, the energy needs of birds

during molt is high. Given the large

concentrations of eiders in Ledyard Bay

and the ability of the benthos in this

area to meet the energy requirements of

spectacled eiders during molt, we

believe that Ledyard Bay is essential to

the conservation of the species.

Spectacled eiders molting in Ledyard

Bay may be particularly susceptible to

disturbance because they occur in dense

concentrations and are flightless for

several weeks. Aerial surveys in

September 1995 found 33,192

spectacled eiders primarily

concentrated in a 37 km (20.0 nm)

diameter circle in Ledyard Bay (Larned

et al. 1995b). This set of observations

represents eider use during a snapshot

of time. Satellite telemetry information

indicates that other portions of Ledyard

Bay are used as well. We are unaware

of the volume of shipping traffic that

occurs in this area. However, we note

that a single ill-timed fuel or oil-spill in

this area could potentially harm

thousands of eiders. If a release of these

materials occurs at any time of year

such that it affects the benthic

community used by eiders for food or if

a release occurs such that it affects the

eiders directly, the consequences to the

North Slope breeding population could

prove catastrophic for the species.

Therefore, we believe special

management considerations or

protections may be required.

Unit 5: Wintering Area (Proposed Unit

8)

We did not alter the boundary of Unit

5 (proposed Unit 8), the Wintering Area

Unit. However, we did modify our

definition of primary constituent

elements for this unit to include only

those marine waters less than or equal

to 75 m (246.1 ft) in depth (the proposal

included all waters, regardless of

depth), along with the associated marine

aquatic flora and fauna in the water

column, and the underlying marine

benthic community. Information gained

from overlaying our observations upon

NOAA digital bathymetry data indicated

that wintering eiders do not make use of

waters over 75 m (246.1 ft) deep.

Therefore, waters within Unit 8 that are

greater than or equal to 75 m (246.1 ft)

do not appear to contain the physical or

biological features that are essential to

the conservation of the species.

Prior to the formation of sea ice in the

area, spectacled eiders inhabit waters

directly south of Powooiliak Bay, St.

Lawrence Island, moving farther off

shore as winter progresses. Once ice

forms, spectacled eiders from all three

main breeding populations (Y–K Delta,

North Slope, and Arctic Russia)

concentrate within a 50-km (27.0 nm)

diameter circle in small openings in the

sea ice (Service 1999a). The location of

this area changes between and within

years, often just slightly, but sometimes

dramatically. The distribution of

wintering eiders overlapped for the

surveys conducted in late winter of

1996–1999, but was far removed from

that area in 1995 (Larned and Tiplady

1999). The most recent estimate of the

number of spectacled eiders wintering

in this area is 374,792 ± 3,514 birds (x ̄

± 2SE) (Larned and Tiplady 1999). Most,

perhaps all, of the worldwide

population of spectacled eiders

congregates for several months in this

small portion of the central Bering Sea.

Spectacled eiders typically winter

south and southwest of St. Lawrence

Island in the central Bering Sea; they

wintered in the same place in 4 of the

5 years since the discovery of their

wintering area. In the year when they

are known to have wintered elsewhere,

they were found further south and east

between St. Lawrence and St. Matthew

Islands. Our critical habitat boundary

includes both areas. We do not believe

that our best scientific information

warrants restricting the borders we have

drawn around this species’ wintering

area. Our observations of wintering

eiders made thus far have occurred

during relatively mild winters. It is

likely that spectacled eiders will use

different locations within this critical

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9159

habitat area depending on ice

conditions, which are variable

throughout time. Ice conditions in this

area are a function of many

unpredictable environmental variables,

including atmospheric temperature,

wind direction and velocity, oceanic

currents and temperature of surface

waters. It is true that during most

winters, the birds make use of a

relatively small portion of this area.

However, during periods of extreme

weather, they may be precluded from

using this favored area by heavy ice

conditions, such as occurred during

March 1995. During such times, other

portions of the wintering area that are

seldom used may become critically

important to the survival of the species.

While the recovery plan for the

spectacled eider does not identify

recovery goals specifically for wintering

habitat, since the entire worldwide

population of the species appears to

congregate in this area for months at a

time, if the area were destroyed or

degraded so that it was no longer able

to be utilized by the species, the

recovery and the conservation of the

species would be jeopardized.

Consequently, we consider the entire

area within our designated borders to be

essential to the conservation of the

species.

The ecosystem of the Bering Sea

seems to be in flux, as indicated by

population declines in many of its

resident species (e.g., harbor seal (Phoca

vitulina richardsi), northern fur seal

(Callorhinus ursinus), Steller’s sea lion

(Eumetopias jubatus), Aleutian

population of the sea otter (Enhydra

lutris), Steller’s eider, spectacled eider,

scoters (Melanitta spp.), and long-tailed

duck (Clangula hyemalis)) (National

Research Council 1996). We do not

know what is causing these declines or

if these apparent changes are humancaused or influenced. However, because

the worldwide population is

congregated in this one location, we

believe that special management

considerations and protections may be

needed to conserve the essential habitat

features (constituent elements) found

there.

Elsewhere in the Species Range

We have a recent record of a single

spectacled eider nest on St. Lawrence

Island (Shawn Stephensen, Service,

pers. comm. 1998). We are unaware of

any reports suggesting that this area is

essential to the conservation of the

species, and we have no other recent

breeding records outside of the

previously discussed breeding areas. We

occasionally receive reports of

spectacled eiders wintering near the

Pribilof Islands, or occurring during

spring, summer, or autumn in

Kuskokwim Bay in low numbers. We

consider the occurrences of birds in

these locations to be accidental or

occasional in nature. We are unaware of

any information that indicates that there

are other waters within the United

States, other than those that we have

designated as critical habitat, that are

essential to the conservation of the

species. We are aware of a report of

spectacled eiders nesting at locally high

densities southeast of Kipnuk, Alaska

(Brian McCaffery, Service, 2000 pers.

comm). This area is of unknown size

and is outside of our aerial survey

boundary. We have been unable to place

crews on the ground in this location to

gather subsequent data, but we expect to

do so in the 2001 field season.

Summary of Critical Habitat

Designation

We have designated critical habitat on

the Y–K Delta, in Norton Sound,

Ledyard Bay, and the waters between St.

Lawrence and St. Matthew Islands. We

believe all of these areas meet the

definition of critical habitat in that they

contain physical or biological elements

essential for the conservation of the

species and may require special

management considerations or

protection. Designation of these areas

will highlight the conservation needs of

the species, and perhaps increase the

degree to which Federal agencies fulfill

their responsibilities under section

7(a)(1) of the Act.

In accordance with the regulations

implementing the listing provisions of

the Act (50 CFR 424.12(h)), we have not

proposed any areas outside the

jurisdiction of the United States (e.g.,

within Russian waters).

In addition to the areas that we have

designated as critical habitat, other areas

currently used by spectacled eiders

include Alaska’s North Slope and its

coastal waters, portions of the Y–K Delta

outside of our critical habitat border,

coastal waters of the Y–K Delta, the

Seward Peninsula, St. Lawrence Island,

elsewhere between the Y–K Delta and

North Slope, and migratory corridors. In

addition, there may be other areas

important to this species that are

unknown to us. Our best available

information did not suggest that there is

any currently unoccupied habitat that is

essential to the conservation of this

species, therefore none was designated.

The areas we have designated as

critical habitat are those areas that we

determined, based on the best available

commercial and scientific information,

are essential to the conservation of

spectacled eiders. Should additional

information on the value of any area to

spectacled eiders become available, we

will consider that information in future

critical habitat decision making

processes.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires

Federal agencies, including the Service,

to ensure that actions they fund,

authorize, or carry out do not destroy or

adversely modify critical habitat to the

extent that the action appreciably

diminishes the value of the critical

habitat for the survival and recovery of

the species. Individuals, organizations,

states, local governments, and other

non-Federal entities are affected by the

designation of critical habitat only if

their actions occur on Federal lands,

require a Federal permit, license, or

other authorization, or involve Federal

funding.

Section 7(a) of the Act requires

Federal agencies to evaluate their

actions with respect to any species that

is proposed or listed as endangered or

threatened and with respect to its

critical habitat, if any is designated or

proposed. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(4) requires Federal

agencies to confer with us on any action

that is likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. Conference

reports provide conservation

recommendations to assist the agency in

eliminating conflicts that may be caused

by the proposed action. The

conservation recommendations in a

conference report are advisory. If a

species is listed or critical habitat is

designated, section 7(a)(2) requires

Federal agencies to ensure that actions

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency (action

agency) must enter into consultation

with us. Through this consultation we

would ensure that the permitted actions

do not destroy or adversely modify

critical habitat.

When we issue a biological opinion

concluding that a project is likely to

result in the destruction or adverse

modification of critical habitat, we also

provide reasonable and prudent

alternatives to the project, if any are

identifiable. Reasonable and prudent

alternatives are defined at 50 CFR

9160 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

402.02 as alternative actions identified

during 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 the

Director believes would avoid

destruction or adverse modification of

critical habitat. Reasonable and prudent

alternatives can vary from slight project

modifications to extensive redesign or

relocation of the project. Costs

associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation with us on actions for

which formal consultation has been

completed if those actions may affect

designated critical habitat. Further,

some Federal agencies may have

conferenced with us on proposed

critical habitat. We may adopt the

formal conference report as the

biological opinion when critical habitat

is designated, if no significant new

information or changes in the action

alter the content of the opinion (see 50

CFR 402.10(d)).

Activities on Federal lands that may

affect the spectacled eider or its critical

habitat will require section 7

consultation. Activities on private or

state lands requiring a permit from a

Federal agency, such as a permit from

the U.S. Army Corps of Engineers (Army

Corps) under section 404 of the Clean

Water Act, or some other Federal action,

including funding (e.g., from the Federal

Highway Administration, Federal

Aviation Administration, or Federal

Emergency Management Agency) will

also continue to be subject to the section

7 consultation process. Federal actions

not affecting listed species or critical

habitat and actions on non-Federal

lands that are not federally funded or

permitted do not require section 7

consultation.

Section 4(b)(8) of the Act requires us

to evaluate briefly in any proposed or

final regulation that designates critical

habitat those activities involving a

Federal action that may adversely

modify such habitat or that may be

affected by such designation. Activities

that may result in the destruction or

adverse modification of critical habitat

include those that alter the primary

constituent elements to an extent that

the value of critical habitat for both the

survival and recovery of the spectacled

eider is appreciably reduced. We note

that such activities may also jeopardize

the continued existence of the species.

Activities that, when carried out,

funded, or authorized by a Federal

agency, may directly or indirectly

adversely affect critical habitat include,

but are not limited to:

(1) Removing, disturbing, or

destroying spectacled eider habitat (as

defined in the primary constituent

elements discussion), whether by

paving, covering, draining, impounding,

hydrologically altering, contaminating,

or otherwise altering through

mechanical means or through ecological

disruption (e.g., gravel pad construction,

travel by motorized vehicle across

unfrozen tundra, overharvest of marine

organisms, fuel transport and related

fueling operations, introduction of

contaminants, operation of open

landfills, use of lead shot while

hunting); and

(2) Appreciably decreasing habitat

value or quality through indirect effects

(e.g., noise, operation of open landfills

and other activities that may enhance

predator populations or concentrate

them near eider habitat, disturbance of

benthic communities through trawling,

offal discharge, and harvest of benthic

organisms).

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of both the survival and

recovery of a listed species. Actions

likely to result in the destruction or

adverse modification of critical habitat

are those that would appreciably reduce

the value of critical habitat for both the

survival and recovery of the listed

species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to result in the destruction

or adverse modification of critical

habitat would almost always result in

jeopardy to the species concerned,

particularly when the area of the

proposed action is occupied by the

species concerned. In those cases,

critical habitat provides little additional

protection to a species, and the

ramifications of its designation are few

or none. However, if occupied habitat

becomes unoccupied in the future, there

is a potential benefit from critical

habitat in such areas.

Federal agencies already consult with

us on activities in areas currently

occupied by the species to ensure that

their actions do not jeopardize the

continued existence of the species.

These actions include, but are not

limited to:

(1) Regulation of activities affecting

waters of the United States by the Army

Corps under section 404 of the Clean

Water Act;

(2) Regulation of water flows,

damming, diversion, and channelization

by Federal agencies;

(3) Regulation of commercial fisheries

by the National Marine Fisheries

Service;

(4) Law enforcement in United States

Coastal Waters by the U.S. Coast Guard;

(5) Road construction and

maintenance by the Federal Highway

Administration;

(6) Regulation of airport improvement

activities by the Federal Aviation

Administration jurisdiction;

(7) Military training and maneuvers

on applicable DOD lands;

(8) Regulation of subsistence harvest

activities on Federal lands by the U.S.

Fish and Wildlife Service;

(9) Regulation of mining and oil

development activities by the Minerals

Management Service;

(10) Regulation of home construction

and alteration by the Federal Housing

Authority;

(11) Hazard mitigation and postdisaster repairs funded by the Federal

Emergency Management Agency;

(12) Construction of communication

sites licensed by the Federal

Communications Commission;

(13) Wastewater discharge from

communities and oil development

facilities permitted by the

Environmental Protection Agency; and

(14) Other activities funded by the U.

S. Environmental Protection Agency,

Department of Energy, or any other

Federal agency.

All areas designated as critical habitat

are within the geographical area

occupied by the species, and contain the

physical or biological features that are

likely to be used by spectacled eiders

during portions of the year, or under

certain environmental and climatic

conditions during some years. Thus, we

consider all critical habitat to be

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9161

occupied by the species. Federal

agencies already consult with us on

activities in areas currently occupied by

the species or if the species may be

affected by the action to ensure that

their actions do not jeopardize the

continued existence of the species.

Thus, we do not anticipate additional

regulatory protection will result from

critical habitat designation.

TABLE 3.—ACTIVITIES POTENTIALLY AFFECTED BY SPECTACLED EIDER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities involving a federal action potentially affected

by species listing only 1

Additional activities involving a

federal action potentially

affected by critical habitat

designation 2

Federal activities potentially affected 3 ................ Activities that the Federal Government carries out such as

scientific research, land surveys, law enforcement, oil spill

response, resource management, regulation of commerce,

and construction/expansion of physical facilities.

None.

Private activities Potentially Affected 4 ................ Activities that also require a Federal action (permit, authorization, or funding) such as scientific research, commercial

fishing, sport and subsistence hunting, shipping and transport of fuel oil and, and village maintenance, construction

and village expansion.

None.

1This column represents impacts of the final rule listing the spectacled eider (May 10, 1993) (58 FR 27474) under the Endangered Species

Act. 2This column represents the impacts of the critical habitat designation above and beyond those impacts resulting from listing the species. 3Activities initiated by a Federal agency.

4Activities initiated by a private entity that may need Federal authorization or funding.

We recognize that designation of

critical habitat may not include all of

the habitat areas that may eventually be

determined to be necessary for the

recovery of the species. For these

reasons, all should understand that

critical habitat designations do not

signal that habitat outside the

designation is unimportant or may not

be required for recovery. Areas outside

the critical habitat designation will

continue to be subject to conservation

actions that may be implemented under

section 7(a)(1) and to the regulatory

protections afforded by the section

7(a)(2) jeopardy standard and the

section 9 take prohibition, as

determined on the basis of the best

available information at the time of the

action. We specifically anticipate that

federally funded or assisted projects

affecting listed species outside their

designated critical habitat areas may

still result in jeopardy findings in some

cases. Similarly, critical habitat

designations made on the basis of the

best available information at the time of

designation will not control the

direction and substance of future

recovery plans, habitat conservation

plans, or other species conservation

planning efforts if new information

available to these planning efforts calls

for a different outcome.

Summary of Comments and

Recommendations

Our critical habitat proposal was

submitted to the Federal Register on

February 1, 2000, and was published in

the Federal Register on February 8,

2000 (65 FR 6114). In it, we requested

that all interested parties submit

comments during the public comment

period on the specifics of the proposal

including information, policy, and

proposed critical habitat boundaries as

provided in the proposed rule. The

comment period was initially open from

February 8, 2000, until May 8, 2000. On

April 19, 2000 (65 FR 20938), we

published a notice in the Federal

Register extending the closing date for

the open public comment period from

May 8, 2000, to June 30, 2000. On July

5, 2000 (65 FR 41404), we published a

notice in the Federal Register again

extending the closing date for the open

public comment period from June 30,

2000, to August 31, 2000. On August 24,

2000 (65 FR 91577), we published a

notice in the Federal Register

announcing the availability of our draft

economic analysis and extending the

closing date for the open public

comment period; from August 31, 2000,

to September 25, 2000. The resulting

comment period lasted from February 8,

2000, to September 25, 2000 (231 days).

We extended the comment period on

these three occasions to accommodate

Alaska Natives, who spend considerable

time away from their homes engaged in

subsistence activities. The third

extension also allowed for public

comment on our draft economic

analysis.

We solicited comments from all

interested parties, and we particularly

sought comments concerning spectacled

eider distribution and range, whether

critical habitat should be designated,

and activities that might impact

spectacled eiders. Notice of the

proposed rule was sent to appropriate

State agencies, Alaska Native regional

corporations, borough and local

governments, Federal agencies,

scientific and environmental

organizations, fishing and oil industry

representatives, and other interested

parties. In total, we sent copies of our

proposal and a request for input to over

300 entities.

We discussed our spectacled eider

critical habitat proposal at the following

venues throughout Alaska: eider critical

habitat public meetings for agency,

industry, Native, and environmental

organization representatives at our

Region 7 Regional Office, Anchorage on

February 1 and 2, 2000; briefing of the

Association of Village Council

Presidents staff in Bethel on February 7,

2000; Alaska Forum on the Environment

in Anchorage on February 9, 2000; eider

critical habitat public meeting in Barrow

on February 16, 2000; Waterfowl

Conservation Committee meeting in

Bethel from February 22–24, 2000; eider

critical habitat public meeting in

Toksook Bay on February 25, 2000;

eider critical habitat public meeting in

Chevak on March 1, 2000; Nome Eskimo

Community IRA Tribal Council meeting

in Nome on May 5, 2000; eider critical

habitat public meeting in Nuiqsut on

August 21, 2000; eider critical habitat

public meeting in Wainwright on

August 23, 2000; eider critical habitat

public meeting in Point Lay on August

24, 2000; eider critical habitat public

meeting in Atqasuk on August 25, 2000;

eider critical habitat public hearing in

Barrow on August 28, 2000 (65 FR

46684); eider critical habitat public

meeting in Sand Point on September 18,

2000; eider critical habitat meeting with

Sand Point local tribal council in Sand

9162 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

Point on September 19, 2000; eider

experts meeting at the Campbell Creek

Science Center in Anchorage on

September 21–22, 2000; eider critical

habitat meeting with Kodiak Regional

Advisory Council in Cold Bay on

September 27, 2000; and an eider

critical habitat meeting for the Bristol

Bay Regional Council in Naknek on

October 13, 2000. At those meetings

held outside of the public comment

period, we presented information only;

public comment was not sought or

accepted. When possible and

appropriate, we publicized our public

meetings through newspaper and radio

advertisements.

The required legal notices announcing

publication of our critical habitat

proposal appeared in the Anchorage

Daily News on February 10, 13, and 16,

2000, in the Bristol Bay Times on

February 10, 2000, and in the Tundra

Drums on February 17, 2000.

We entered comments received after

February 8, 2000, and postmarked or

received by September 25, 2000, into

the administrative record. All

comments, notes from public meetings,

and the transcript for the public hearing

held in Barrow are available for

inspection (see ADDRESSES section).

We requested three scientists with

expertise in eider biology to peer review

the proposed critical habitat

designation. All three submitted

comments and these comments have

been taken into consideration in the

final rule.

We received a total of 327 oral and

written comments during the comment

period. Oral comments received during

public meetings were recorded by topic;

we did not record how many

individuals made the same comment at

each meeting. During our public

hearing, eight of the commenters

submitted oral testimony only, and

seven submitted both oral and written

testimony. In total we received

comments as follows: Ten from officials

representing Federal Agencies, two from

elected Federal officials, three from

State agencies, three from elected State

officials, nine from local governments,

23 from Native organizations, and 277

from individuals, private companies,

and non-Native organizations. We

reviewed all comments received for

substantive issues and new data

regarding spectacled eiders and critical

habitat. We grouped comments of a

similar nature into four general issues

relating specifically to the proposed

critical habitat determination and draft

economic analysis on the proposed

determination: Biological Justification

and Methodology, Policy and

Regulations, Economic Issues, and

Other Relevant Issues. These are

addressed in the following summary.

Issue 1: Biological Justification and

Methodology

Comment 1: Many respondents had

comments concerning habitat as a factor

in the species conservation, including

statements indicating that habitat is not

limiting the species population size,

habitat loss was not a threat to the

species, loss of breeding habitat did not

cause the decline and was not limiting

recovery of this species, and critical

habitat was not needed for survival and

recovery.

Our response: The information

available when the species was listed in

1993 did not indicate that habitat loss

or degradation was considered to be a

threat to the species. However, we have

gathered a considerable amount of

information in the past seven years.

Among other things, we have learned

that habitat degradation on the Y–K

Delta resulting from deposition of lead

shot is probably limiting recovery of this

species, and may have contributed to

the observed 96 percent decline. In

addition, organic deposition and

benthic biomass in the wintering area

south of St. Lawrence Island have

declined steadily since the late 1980s.

Oceanographic studies during late

winter (March-April 1999) found that

particulate organic carbon

concentrations in the water column

were too low to support significant

populations of large zooplankton or

krill, indicating that spectacled eiders

must be feeding on the bottom.

Moreover, a long-term trend in benthic

communities continues: the formerly

abundant bivalve Macoma calcarea has

declined relative to another clam

Nuculana radiata, which has 76 percent

lower lipid content and 26 percent

lower energy density (J.R. Lovvorn,

Univ. Wyoming, pers. comm. 2000). The

average length and mass of bivalves

presumably preferred as food by

spectacled eiders has also declined in

the long term (J.M. Grebmeier and B.I.

Sirenko, unpubl. data). Taken together,

these factors suggest a deterioration of

habitat conditions favorable to

spectacled eiders on their Y–K Delta

breeding grounds and Bering Sea

wintering area. We do not know to what

extent contaminants, increased

predation, and increased human

disturbance are degrading the quality of

eider habitats. However, we note that a

ill-timed fuel or oil-spill in wintering or

molting areas could potentially harm

thousands of eiders.

An examination of threats that are

limiting a species survival and recovery

and to what degree the threats are

limiting are key components of our

decision of whether a species warrants

listing as threatened or endangered. For

the spectacled eider, that determination

was made in 1993 when the species was

listed.

After we decide that a species

warrants listing, the Act directs us to

identify and designate critical habitat.

For those areas within the current range

of the species, critical habitat can be any

area that contains physical or biological

features that are essential to the

conservation of the species and that may

require special management

consideration or protection. For areas

outside the current range of the species,

critical habitat can be any area that is

considered essential for the

conservation of the species; we need not

consider whether special management

consideration or protection is needed.

Based upon what we have learned about

lead shot in the environment on the Y–

K Delta, and what we are learning about

clam population changes on the

spectacled eider wintering grounds, we

cannot conclude that habitat

degradation is not a factor adversely

impacting the species (i.e., these areas

may require special management). Our

evaluation of the available information

shows that the areas we have designated

are essential to the species and may

require special management

consideration or protection.

As for whether critical habitat is

needed for survival and recovery, the

Act obligates us to designate, to the

maximum extent prudent, those areas

that meet the definition of critical

habitat. It does not require us to

determine that the act of designating

land as critical habitat is a necessary

step in ensuring the survival or

achieving the recovery of the species.

Comment 2: Many respondents stated

that they thought there was no new data

or insufficient data to warrant a reversal

of our previous ‘‘not prudent’’ finding,

or to support designation of critical

habitat as proposed; the reasons for the

birds decline are unknown.

Our response: We invite interested

parties to inspect the volumes of new

scientific information gathered since the

listing of this species in 1993. As a

result of this new information, we now

have a much better idea of which

habitats are essential to spectacled eider

conservation.

Additionally, several of our past

determinations that critical habitat

designation would not be prudent have

been overturned by courts in recent

years (e.g., Natural Resources Defense

Council v. U.S. Department of the

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

Conservation Council for Hawaii v.

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9163

Babbitt, 2 F. Supp. 2nd 1280 (D. Hawaii

1998)). Although this information is not

biological in nature, we reassessed the

potential benefits from a critical habitat

designation in light of these decisions.

We believe that new biological

information, and the recent court

rulings, support our conclusion that the

designation of critical habitat is

prudent. Should credible, new

information suggest that our designation

should be modified, we will reevaluate

our analysis and, if appropriate, propose

to modify this critical habitat

designation. In reaching our current

decision, we have considered the best

scientific and commercial information

available to us at this time, as required

by the Act.

Comment 3: Several respondents

stated that because the species was not

declining on the North Slope, it made

no sense to designate critical habitat

there. Several respondents also

suggested that the North Slope

population of spectacled eiders may

warrant delisting.

Our response: It is true that there is

no historical trend data on nesting

abundance or distribution for spectacled

eiders on the North Slope. However,

recent trend data for the North Slope

portion of the spectacled eider breeding

area indicate that the North Slope

population may be in decline over the

period 1993–2000, although the trend is

not statistically significant. The

downward trend of 2.6 percent per year

is bounded by a 90 percent confidence

interval ranging from a 7.7 percent

decline per year to a 2.7 percent

increase per year (Service, unpubl.

data). Furthermore, we note that since

our spectacled eider surveys began in

1992, the minimum population estimate

has never approached the delisting

threshold of 10,000 pairs. In fact, for 6

of the 8 years, the population meets one

of the criteria for reclassification to

endangered (‘‘minimum estimated

population size is <3000 breeding pairs

for ≥ year’’). However, the preliminary

information (albeit limited) also

suggests the very real possibility that the

North Slope population may be large

enough to warrant delisting, but that our

current surveys are simply not detecting

a high enough proportion of birds to

indicate that this is the case. If future

data indicate that this species, or any

distinct vertebrate population segment

no longer warrants protection under the

Act, we will propose removing the

species or that segment from the list of

threatened and endangered species. As

discussed above, however, we have not

designated critical habitat on the North

Slope in accordance with section 4(b)(2)

of the Act.

Comment 4: Several respondents

commented extensively on the final

recovery plan for the spectacled eider,

noting, among other things, that the

delisting thresholds are exceedingly

conservative.

Our response: As to the recovery plan,

we are unable to incorporate the

commenters suggestions into this

already-approved recovery plan, as the

public comment period has long-since

closed (February 23, 1995; 59 FR

53660). We will, however, keep these

comments on file and consider them

when this approved recovery plan is

revised. Until such a revision is

approved, we are adhering to the

recovery criteria in the approved

recovery plan.

The delisting criteria cited by the

commenters from the spectacled eider

recovery plan states that ‘‘* * * the

minimum estimated population size is

≥10,000 breeding pairs over ≥ 3 surveys

(1 survey/year, with surveys preferably

being consecutive) or the minimum

estimate of abundance exceeds 25,000

breeding pairs in any one survey.’’ The

commenters state that minimum

population estimates have exceeded this

threshold twice, and suggest that the

1999 survey data may result in this

population meeting the delisting

threshold for a third time.

We note that the commenters are

mistaken in the interpretation of our

survey data on several counts. The

survey estimates they cite as exceeding

10,000 pairs are not minimum

population estimates, they are point

estimates. Minimum population

estimates, as defined in the recovery

plan, are the lower 95 percent

confidence limits of the survey or the

actual number of birds seen on the

survey. In addition, they mistakenly cite

an estimate of the number of breeding

birds as an estimate for the number of

breeding pairs. To get the minimum

population estimate for the number of

breeding pairs, one must divide the

minimum population estimate of the

number of breeding birds in half. Thus,

recent minimum population estimates

for the number of pairs of spectacled

eiders comprising the North Slope

breeding population are as follows: for

1993: 3,669; for 1994: 2,828; for 1995:

2,803; for 1996: 2,179; for 1997: 2,107;

for 1998: 3,800; for 1999: 2,679; and for

2000: 2,567. In none of the years does

the minimum population estimate even

approach the delisting threshold of

10,000 pairs. In fact, for 6 of the 8 years,

the population meets one of the criteria

for reclassification to endangered

(‘‘minimum estimated population size is

<3000 breeding pairs for ≥ year’’).

However, the preliminary information

(albeit limited) also suggests the very

real possibility that the North Slope

population may be large enough to

warrant delisting, but that our current

surveys are simply not detecting a high

enough proportion of birds to indicate

that this is the case.

The commenters suggest that, with

the application of a visibility correction

factor, the minimum population

estimate for delisting may be reached.

We note that to validly apply a visibility

correction factor to achieve a minimum

population estimate, as suggested by the

commenters, we must also incorporate

the variance of the visibility correction

factor into the final minimum

population estimate. At present, we do

not have a usable visibility correction

factor for spectacled eiders due to the

wide confidence limits around the

correction factor thus far derived. We

note that development of a useful

visibility correction factor is a high

priority for future work.

Comment 5: Several respondents

stated that we need to base our

decisions on objective studies based on

science.

Our response: We believe that all of

the studies that we used as a basis for

our decisions were scientifically sound

and objective. The respondents were not

specific in saying which documents or

studies they felt were non-objective or

unscientific. All of the studies that we

used in our decision-making process are

part of our administrative record.

Comment 6: Several respondents

stated that they thought our critical

habitat proposal included areas not used

by the species, specifically, that the

Ledyard Bay molting area was extended

too far west, and contained nearshore

waters not used by spectacled eiders.

They also believed the proposed

wintering area was too large given the

areas that the birds have been observed

using.

Our response: We have adjusted the

boundary of the Ledyard Bay wintering

area unit to better reflect patterns of use

during the time in which this species

molts and stages there during fall. This

change is based upon aerial

observations, satellite transmitter data,

bathymetry data and traditional Native

knowledge regarding eider use of these

waters obtained during the public

comment period. Waters within 1 nm of

shore between Cape Lisburne north to

Icy Cape are not within our final

designation. Our data does indicate

nearly exclusive and repeated use of

Ledyard Bay waters between 5 and 25

meters in depth across years. As such,

these waters remain part of our final

designation. We note that the

observation by local Natives that

9164 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

spectacled eiders use waters 15–75 nm

from shore is largely supported by the

scientific data available to us. However,

all of the Ledyard Bay critical habitat

unit (Unit 4) is within 75 nm of shore.

We do not believe that our best

scientific information warrants

restricting the borders we have drawn

around this species’ wintering area. It is

true that during most winters, the birds

make use of a relatively small portion of

this area. However, during periods of

extreme weather, they may be precluded

from using this favored area by heavy

ice conditions, such as occurred during

March 1995. During such times, other

portions of the wintering area that are

seldom used may become critically

important to the survival of the species.

We believe that the borders we have

drawn, coupled with our description of

the primary constituent elements for

that location, are the best representation

of the area that is essential to the

conservation of the species, and for

which we have the authority to

designate critical habitat. Should

additional survey data generated over a

spectrum of winters of varying severity

indicate that the borders of the critical

habitat warrant amending, we will

consider such information and take

appropriate action.

Comment 7: A few respondents stated

that there was insufficient data to

describe primary constituent elements.

Our response: We disagree. In

accordance with the regulations,

primary constituent elements may

include, but are not limited to, the

following: Roost sites, nesting grounds,

spawning sites, feeding sites, seasonal

wetland or dryland, water quality or

quantity, host species or plant

pollinator, geologic formation,

vegetation type, tide, and specific soil

types (50 CFR 424.12). In addition, the

regulations state that we are to make our

determinations based upon the best

scientific data available (50 CFR

424.12). We believe that we have

described the primary constituent

elements of the different habitats used

by this species using the best scientific

data available. Additional data may

have allowed us to describe primary

constituent elements in more detail, but

the lack of this additional data does not

preclude us from describing the primary

constituent elements using the

information that we have.

Comment 8: A few respondents asked

whether it is possible that the eiders

have simply relocated.

Our response: Sea ducks in general,

and spectacled eiders in particular,

exhibit breeding site fidelity. That is,

female waterfowl tend to return to the

area where they hatched for their first

nesting effort, and subsequently return

to this same area year after year

(Anderson et al. 1992). Genetics studies

indicate that there are differences in

mitochondrial DNA between females

that breed on the Y–K Delta, North

Slope, and Arctic Russia. This is an

indication that there is limited exchange

of females between breeding areas.

Although males that lose a mate may

subsequently pair with a female from a

different breeding area, and

consequently may breed in different

areas, we do not believe that female

eiders regularly change breeding areas,

or that there was a mass movement of

birds from one breeding area to another.

There is no evidence to support this

type of movement in sea ducks, nor

reason to believe that it may have

happened with spectacled eiders.

Comment 9: A few respondents stated

that our proposed North Slope Unit is

too big for Spectacled eiders, noting that

this species only occur 1–2 miles

inland.

Our response: Although we are not

designating critical habitat on the North

Slope at this time, we strongly disagree

with the observation that this species

only occurs within 2 miles of the coast.

There are hundreds of confirmed

sightings of spectacled eiders as far as

60 mi from the coast made by

professional biologists with years of

aerial survey experience. Perhaps the

commenters may be confusing

spectacled eiders with the more coastal

eider species, the common eider

(Somateria mollissima).

Comment 10: Several commenters

noted that critical habitat designation

could hamper recovery by suggesting

that threats to the bird are located in one

place when they are actually located

elsewhere.

Our response: As we have previously

stated, we recognize that designation of

critical habitat may not include all of

the habitat areas that may eventually be

determined to be necessary for the

recovery of the species. Therefore, all

should understand that critical habitat

designations do not signal that habitat

outside the designation is unimportant

or may not be required for recovery.

However, even given that limitation, we

do not believe that our final critical

habitat designation will hamper the

recovery of the spectacled eider.

Comment 11: Two respondents stated

that 5 percent annual harvest of

spectacled eiders on the Yukon

Kuskokwim Delta during spring has

minimal impact on the population.

Our response: Subsistence harvest

survey information estimates a slightly

lower harvest rate from 1993–1999 (3.75

percent), but that survey cannot account

for the under-reporting of the number of

animals harvested for which harvest is

prohibited. For many species, a 5

percent annual harvest rate would be

inconsequential, but for a long lived

species with relatively low annual

reproductive output, and an already

depressed population level such as the

spectacled eider, such harvest can have

notable effects on the population. We

simulated the Y–K Delta spectacled

eider population using both a

deterministic model (one that does not

account for uncertainty) and a stochastic

model (one that incorporates effects of

chance events) developed for this

species, with starting conditions that

approximate observed reproductive

parameters and that result in the stable

to slightly increasing population of

eiders, such as that which has been

occurring over recent years (Paul Flint,

BRD, pers. comm. 2000). When we

released the modeled population from

hunting pressure, the deterministic

model predicted that the population

would grow about 20 percent in 10

years. We ran 100 iterations of the

stochastic model and observed that the

population change for this population,

upon release from hunting pressure for

10 years, ranged from a 13 percent

decline to a 50 percent increase (average

population change was about a 20

percent increase). This information

suggests that while hunting may not

currently be driving the population

further towards extinction, it is

hindering, and may be preventing,

recovery of the species.

Comment 12: Two respondents

thought we should have included the

area south and east of Teshekpuk Lake

in our proposal.

Our response: We considered

including this area in our proposal, but

aerial survey data indicated that this

area is not used by spectacled eiders. In

eight years of aerial surveys, we have

only encountered spectacled eiders in

this area twice.

Comment 13: A few respondents note

that eiders are tolerant of development,

implying that designation of critical

habitat in these areas is therefore

unnecessary.

Our response: We agree that

spectacled eiders occur in developed

areas. Spectacled eiders regularly occur

in ponds within developed oil fields at

Prudhoe Bay. However, we also note

that spectacled eiders do not occur at

high densities near any of the Native

villages on the North Slope or Y–K

Delta. We do not know whether this

reflects intolerance for development,

local extirpation due to hunting, or

simply that villages are located on lands

unsuitable as eider habitat.

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9165

Development may affect species in a

number of ways, such as altering

distribution or decreasing productivity

or survival rates. At this time, the effects

of development on spectacled eiders are

unknown.

Comment 14: One respondent stated

that our data were not very compelling

for including the marine waters off the

North Slope and the North Y–K Delta

unit as critical habitat.

Our response: Our initial

interpretation of satellite transmitter

data from the Beaufort and Chukchi seas

and aerial survey data from the Y–K

Delta compelled us to include these

areas in our proposal. Subsequent

transmitter data from the summer of

2000 caused us to reconsider our

inclusion of the coastal waters of the

Beaufort and Chukchi seas within 40 km

of shore. The data did not clearly

indicate that these waters are essential

to the conservation of the species. Many

individuals use this area for less than a

few days, and some of them appear to

fly across it nearly nonstop on their way

to Ledyard Bay.

Upon closer scrutiny of habitat within

the northern portion of our Y–K Delta

unit, we believe that most of the habitat

there is unsuitable for spectacled eiders.

However, we note that there may be one

or two small pockets of habitat in this

unit that are suitable, and that appear on

maps to be distinctly different from the

surrounding area. We have not yet

conducted ground-based surveys in

these areas. If future data indicates that

these areas are suitable habitat for

spectacled eiders, and are essential for

the conservation of the species and may

require special management

considerations or protection, we will

consider designating them as critical

habitat at a future date.

Comment 15: One respondent

suggested that our aerial surveys may be

ill-timed to detect spectacled eiders.

Our response: Ground data from the

Prudhoe Bay area indicate that, while

our eider aerial surveys are not always

perfectly timed to detect the maximum

number of spectacled eiders, in general,

they do a good job of surveying a very

large area during the short window of

time in which a high proportion of

highly-visible males are present on the

breeding grounds. In some years, our

survey timing is nearly perfect; in other

years, weather delays have impinged on

our ability to optimally time our survey

efforts.

Comment 16: One respondent pointed

out that we should explicitly state that

Ledyard Bay is essential to the

conservation of the species.

Our response: We have modified our

final rule to explicitly state that Ledyard

Bay is essential to the conservation of

the species.

Comment 17: One respondent stated

that our proposals did not encompass

enough of the species range to ensure

recovery, and that areas proposed may

actually be population sinks.

Our response: Our proposal

encompassed nearly all of the species

currently occupied range (excluding

migratory corridors). We do not believe

that areas outside of the proposed

borders would have contributed

markedly to the species survival and

recovery. Our final rule excludes large

portions of the proposal. However, this

is not meant to imply that habitat

outside the designation is unimportant

or may not be required for recovery.

We have preliminary data on local

population sinks (areas where mortality

exceeds production, but where

populations are maintained through

immigration from other areas) and

sources on the Y–K Delta only. These

areas have been included in the final

designation. Furthermore, we believe

that areas that are currently population

sinks need not remain population sinks

indefinitely. We hope that with

additional management measures, we

can turn many local population sinks

into population sources.

Comment 18: One respondent stated

that commercial fishing operations were

not responsible for the decline in eider

populations, and therefore critical

habitat should not restrict commercial

fishing. The respondent also disagreed

with a statement in the proposal that

suggested trawl fishing may be a

potential threat to spectacled eiders on

the wintering grounds.

Our response: We made no mention of

trawl fisheries in our critical habitat

proposal nor are we aware of data

indicating that commercial fisheries are

or are not responsible for declines in

eider populations. We did state that

‘‘* * * activities that may have the

potential to destroy or adversely modify

critical habitat for spectacled eiders

include, but are not limited to: (1)

Commercial fisheries, (2) oil exploration

and development, and (3) petroleum

product transport.’’ We did not intend

to imply that commercial fisheries had

caused the observed population decline

of spectacled eiders, but rather that

commercial fisheries, as well as the

other factors mentioned, may have the

potential to be a threat to the species or

its habitat. We note that, with respect to

commercial fisheries, possible ways in

which eiders or their habitat may be

affected now or in the future include—

(1) large numbers of small fuel and oil

spills, including the practice of

discharging oily bilge water; (2)

fundamental changes in the marine

ecosystem brought about by harvest or

overharvest of fish and shellfish; (3)

vessel strikes in which eiders collide

with fishing vessels that are using bright

lights during inclement weather; and (4)

the alteration of the benthic

environment by trawling gear. Again,

we do not mean to imply that the

commercial fishing industry is currently

affecting the species in these ways. We

currently lack the information we need

to determine whether, and to what

degree, fisheries are affecting spectacled

eiders. Further analysis of potential

affects of the fishing industry on

spectacled eiders will be considered in

future section 7 consultations with the

National Marine Fisheries Service

(NMFS) on the fisheries.

We note that the commenter stated

that, due to ice, it was theoretically

impossible to conduct trawl fishing

operations in the spectacled eider

wintering area during the time of year

that the birds are present. We agree with

this assessment, but note that eiders are

present at high densities on their

wintering grounds prior to the formation

of sea ice and also note that bottom

trawl fisheries conducted in this area at

any time of year could potentially

adversely modify spectacled eider

critical habitat; the birds need not be

present during fishing operations for

harm to occur. We acknowledge,

however, that according to the data

provided by the commenter, trawl

fisheries did not occur within the

borders of the spectacled eider

wintering area critical habitat between

1995–1999. We appreciate receiving this

data.

Issue 2. Policy and Regulations

Comment 19: Many respondents

stated that they thought critical habitat

would create a need for section 7

consultations on projects with a federal

nexus, and that consultation would be

costly, cause permitting delays,

potentially preclude some development,

or cause widespread unemployment.

Our response: The designation of

critical habitat for the spectacled eider

does not impose any additional

requirements or conditions on property

owners or the public beyond those

imposed by the listing of the eider in

1993 as a threatened species. All

landowners, public and private, are

responsible for making sure their

actions do not result in the

unauthorized taking of a listed species,

regardless of whether or not the activity

occurs within designated critical

habitat. Take is defined as ‘‘harass,

harm, pursue, hunt, shoot, wound,

capture, collect, or attempt to engage in

9166 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

any such conduct.’’ Take is further

defined by regulation to include

‘‘significant habitat modification or

degradation that actually kills or injures

wildlife,’’ which was upheld by the U.S.

Supreme Court in Sweet Home Chapter

of Communities for a Great Oregon et al.

v. Babbitt, 515 U.S. 687 (1995).

Furthermore, all Federal agencies are

responsible to ensure that the actions

they fund, permit, or carry out do not

result in jeopardizing the continued

existence of a listed species, regardless

of critical habitat designation.

‘‘Jeopardize the continued existence of’’

means to engage in an action that

reasonably would be expected, directly

or indirectly, to reduce appreciably the

likelihood of both the survival and

recovery of a listed species in the wild

by reducing the reproduction, numbers,

or distribution of that species (50 CFR

402.02). Because we designated only

areas within the geographic range

occupied by the spectacled eider, any

activity that would result in an adverse

modification of the eider’s critical

habitat would virtually always also

jeopardize the continued existence of

the species. Federal agencies must

consult pursuant to section 7 of the Act

on all activities that will adversely affect

the eider taking place both within and

outside designated critical habitat.

The consultation process will change

only to the extent that Environmental

Impact Statements, Environmental

Assessments, Biological Assessments,

and other National Environmental

Policy Act documents must consider the

effect of the project on critical habitat.

However, these documents already need

to consider the effects of the project on

habitat (in the absence of critical habitat

designation). Therefore, we anticipate

that the additional workload burden

created by critical habitat will amount

to changes in terminology and

organization of these documents. Any

marginal increase in consultation costs

will ultimately be borne by the lead

Federal agency in the consultation

process or its designated representative.

We disagree with those commenters

who believe that the consultation

workload that is due to critical habitat

is 30 percent, 50 percent, or 90 percent

of the total consultation workload. Since

our consultation process, regardless of

the designation of critical habitat, would

include an evaluation of the proposed

action in terms of the habitat effects on

the species, we do not anticipate that

our portion of the section 7 consultation

process will take any longer to complete

due to the presence of critical habitat.

Therefore, we do not believe that any

permitting delays will result from this

designation. Similarly, we do not

believe that critical habitat designation

will, by itself, preclude development.

The Act authorizes us to require only

minor changes to projects that are likely

to adversely affect listed species. Only

when a project will jeopardize the

continued existence of a listed species,

or will destroy or adversely modify

critical habitat can we require more than

minor changes (called ‘‘reasonable and

prudent alternatives’’). We believe that

the threshold for reaching ‘‘adverse

modification’’ is equal to that of

‘‘jeopardy’’. Consequently, we cannot

envision how an action could cause

adverse modification of occupied eider

critical habitat without also jeopardizing

the species. As a result, any reasonable

and prudent alternatives that we may

require would have come about due to

the listing of the species, with or

without critical habitat. Therefore, we

believe that the existence of critical

habitat alone will not preclude any

development.

Finally, we stand by the

determination in our economic analysis

that critical habitat will not have a

notable economic impact. Consequently,

we do not believe that it will create jobs

or cause jobs to be lost.

Comment 20: Many respondents

stated that they thought critical habitat

afforded no additional benefits beyond

those already provided by listing, and

that critical habitat offers no net

benefits.

Our response: It has long been our

position that the benefits afforded by

critical habitat were small relative to the

benefits provided by listing. As such,

we chose to focus scarce resources

towards the listing of additional species.

Our position should not be

misinterpreted to mean that we believe

critical habitat affords no additional

benefits. To the contrary, we believe

critical habitat may enhance

management on Federal lands, and may

help prevent adverse impacts on private

lands resulting from Federal actions.

The courts have repeatedly asserted that

we have an obligation to designate

critical habitat under the Act, and any

decision not to do so should be the

exception rather than the rule. We

believe that the designation of critical

habitat serves to educate and inform

agencies, organizations, and the public

that the survival of the species is

dependent upon the availability of

healthy habitats. However, in some

circumstances the benefits of excluding

an area from the critical habitat

designation will be greater than

including the area in the designation. If

such an exclusion will not result in the

extinction of the species, subsection

4(b)(2) the Act allows us to exclude the

area from the critical habitat

designation. The circumstances on the

North Slope currently warrant such an

exclusion (see Rationale for the Final

Designation section).

Comment 21: Many respondents

pointed out that the Act indicates that

we are not to designate critical habitat

throughout a species range.

Our response: Section 3(5)(C) of the

Act states that, except in those

circumstances determined by the

Secretary, critical habitat shall not

include the entire geographical area

which can be occupied by an

endangered or threatened species. We

have designated critical habitat in less

than 50 percent of the spectacled eider’s

historical range within the United

States. The Secretary of the Interior has

determined that the areas designated are

essential to conserve this species and

may require special management

considerations or protection.

Comment 22: Several respondents

stated that we need to balance

protection and development.

Our response: There are provisions for

balancing protection and development

in sections 6, 7, and 10 of the Act. In

addition, we provide the opportunity for

balancing protection and development

in our critical habitat designation

process by undertaking an economic

analysis. Our analysis concluded that

the economic effects on development

would be minimal or nonexistent.

Therefore, we believe that we have

balanced and continue to balance

protection and development.

Comment 23: Several commenters

expressed concern that designation of

critical habitat will result in restrictions

on development, subsistence hunting

and fishing, commercial fishing, and

transportation.

Our response: We are unaware of any

information indicating any new State or

local laws, restrictions, or procedures

will result from critical habitat

designation. Should any State or local

regulation be promulgated as a result of

this rule, this would be outside our

authority under the Act. The comment

is correct in that projects funded,

authorized, or carried out by Federal

agencies, and that may affect critical

habitat, must undergo consultation

under section 7 of the Act on the effects

of the action on critical habitat.

However, as stated elsewhere in this

final rule, we do not expect the result

of those consultations to result in any

restrictions that would not be required

as a result of listing the spectacled eider

as a threatened species.

Comment 24: One commenter stated

that village residents do not believe us

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9167

when we say that designating critical

habitat will not noticeably affect them.

Our response: We understand the

commenter’s reservations; however, we

continue to maintain that the

designation of critical habitat does not

impose any additional requirements or

conditions on the public beyond those

that are imposed by the listing of the

spectacled eider in 1993 as a threatened

species.

Comment 25: Several respondents

pointed out that critical habitat is not

called for in the recovery plan.

Our response: The recovery plan for

the spectacled eider was finalized in

1996. This plan neither endorses the

need for, nor states that there is no need

for, designation of critical habitat for

this species. There is not a requirement

that a recovery plan call for critical

habitat before we designate critical

habitat. The Act mandates that critical

habitat be designated at the time a

species is listed, to the maximum extent

prudent, which is well before the

development and finalization of

recovery plans.

Comment 26: Two respondents stated

that we should have consulted the

recovery team in our decision-making

process.

Our response: We did not ask the

Recovery Team to make

recommendations or provide formal

comments on the critical habitat

proposal. That is not the role of the

Recovery Team provided for in the Act.

However, we did consider comments

from individual members of the

Recovery Team as part of the public

review and comment process. On

September 21–22, 2000, in Anchorage,

Alaska, we convened a meeting of

experts in the field of spectacled eider

biology. We invited all members of the

recovery team in addition to other eider

experts who are not on the team. At this

meeting, we sought input from the

experts on what habitats they believed

to be essential to the recovery of the

species. A transcript of this meeting is

part of our administrative record, and it

was considered in our decision making

process, as were comments received by

mail, fax, phone, e-mail, and in public

meetings and at our public hearing in

Barrow, Alaska.

Comment 27: One respondent said

that designating such a huge area as

critical habitat may trivialize the

concept of critical habitat.

Our response: The Act requires that

we designate critical habitat to the

maximum extent prudent. For wideranging species, this may result in large

expanses of land and water falling

within critical habitat borders.

Comment 28: One respondent

compares the listing of the short-tailed

albatross with that of the spectacled

eider, and asked why it is prudent to

designate critical habitat for the eider,

but not for the albatross when the

criteria for determination are nearly

identical.

Our response: The decline in

abundance of short-tailed albatrosses

was notable in that it was directly

attributable to one cause; direct

persecution of the birds by humans such

that the species was driven to the brink

of extinction (and in fact, for many

years, the short-tailed albatross was

thought to be extinct). When

commercial harvest of this species

discontinued, the species population

began to grow at near its maximum

biological potential. There is nothing

about the short-tailed albatross’ habitat

that is preventing it from growing at or

near its biological maximum capacity

for growth. The current population is

but a very small fraction of the number

of birds that the habitat once supported.

In short, we know what caused this

species to decline, and its decline was

completely unrelated to anything in its

habitat. We also know that there is no

aspect of short-tailed albatross habitat in

the U.S. that is preventing it from

recovering nearly as fast as it is capable

of doing (65 FR 46643). This is not the

case for the spectacled eider.

We do not know why the spectacled

eider has declined, but lacking evidence

of excessive direct take by humans, we

believe that we can conclude that the

decline can be attributed to some factor

associated with the species habitat.

Furthermore, certain aspects of its

habitat (e.g., lead shot on the breeding

grounds, and shifting prey

distributions), may be slowing or

preventing recovery. As such, special

management protections and

considerations may be needed, and the

designation of critical habitat is

appropriate.

Comment 29: Several commenters

stated that we did not consult with

Alaska Native communities or local/

tribal governments regarding our critical

habitat proposals.

Our response: Due to the short

deadline we were working under, which

resulted from a settlement agreement,

we did not consult with the Alaska

Native community prior to proposing to

designate critical habitat. However, we

attempted to notify all potentially

affected communities, local and regional

governments regarding the proposed

designation after it was published in the

Federal Register on February 8, 2000

(65 FR 6114). As noted earlier, we

published notices in the Federal

Register announcing the proposed

designation of critical habitat, and the

availability of the draft economic

analysis. We extended our public

comment period three times at the

request of Alaska Natives. We sent

letters and informational materials

pertaining to the proposal, draft

economic analysis and notices of the

extensions of the comment period to

over 300 individuals, communities, and

local and regional Native governments

potentially affected by the proposed

critical habitat. We provided a briefing

opportunity on the proposal for Alaska

Native representatives at the beginning

of the comment period. We contacted

specific individuals with traditional

ecological knowledge of spectacled

eiders and solicited their comments on

the proposal. We discussed our critical

habitat proposal at 19 meetings (13 of

which were public meetings and 16 of

which had Natives in attendance). We

held meetings in the Native/rural

villages and towns of Chevak, Toksook

Bay, Bethel, Barrow, Point Lay,

Wainwright, Nuiqsut, Atqasuk, Sand

Point, and Nome. At those meetings that

were held during the public comment

period, meeting attendees were given

the opportunity to comment on the

proposal. We gave equal weight to oral

and written comments on the proposal,

and we incorporated traditional

environmental knowledge obtained at

these meetings into our final decision.

Comment 30: Two respondents stated

that we are not in compliance with the

National Environmental Policy Act and

that an Environmental Impact Statement

should be completed.

Our response: We have determined

that we do not need to prepare

Environmental Impact Statements or

Environmental Assessments, as defined

under the authority of the National

Environmental Policy Act of 1979

(NEPA), in connection with regulations

adopted pursuant to section 4(a) of the

Act. The Ninth Circuit Court

determined that NEPA does not apply to

our decision to designate critical habitat

for an endangered or threatened species

under the Act because (1) Congress

intended that the critical habitat

procedures of the Act displace the

NEPA requirements, (2) NEPA does not

apply to actions that do not change the

physical environment, and (3) to apply

NEPA to the Act would further the

purposes of neither statute, Douglas

County v. Babbitt, 48 F.3d 1495, 1507–

0 (9th Cir. 1995). Alaska is within the

jurisdiction of the ninth Circuit Court of

Appeals.

Comment 31: Several commenters

said that we should explain in detail

why the proposed critical habitat is

9168 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

essential to the species’ survival and

recovery. Commenters also stated that

we should identify more explicitly the

criteria used to determine what areas are

considered essential and what special

management or protections are needed.

Our response: We believe that we

have addressed these concerns

throughout the final rule. Please see the

‘‘Critical Habitat’’ and ‘‘rationale for

final designation’’ sections of this Final

Rule. As described in the section titled

‘‘Primary Constituent Elements’’ we

identified the habitat features (primary

constituent elements) that provide for

the physiological, behavioral, and

ecological requirements essential for the

conservation of spectacled eiders.

Within the historical range of the

spectacled eider we identified areas

which provide the primary constituent

elements and which met the criteria

discussed under ‘‘Critical Habitat

Designation’’ in this rule. Then, based in

part on information from eider experts,

we selected qualifying portions of these

areas necessary for the conservation of

the spectacled eider and then

determined whether those areas might

require special management

considerations or protection.

Comment 32: Some commenters

stated that ‘‘adverse modification’’ and

‘‘jeopardy’’ are two different standards

and thus disagreed with our position

that critical habitat will impose no

addition regulatory burden.

Our response: Section 7 prohibits

actions funded, authorized, or carried

out by Federal agencies from

jeopardizing the continued existence of

a listed species or destroying or

adversely modifying the listed species’

critical habitat. Actions likely to

‘‘jeopardize the continued existence’’ of

a species are those that would

appreciably reduce the likelihood of

both the survival and recovery of a

listed species. Actions likely to result in

the destruction or adverse modification

of critical habitat are those that would

appreciably reduce the value of critical

habitat for both the survival and

recovery of the listed species. Common

to both definitions is an appreciable

detrimental effect on both survival and

recovery of a listed species. Given the

similarity of these definitions, actions

likely to result in the destruction or

adverse modification of critical habitat

would almost always result in jeopardy

to the species concerned, particularly

where, as here, only habitat within the

geographic range occupied by the

spectacled eider is designated as critical

habitat. The designation of critical

habitat for the spectacled eider does not

add any new requirements to the

current regulatory process. Since the

adverse modification standard for

critical habitat and the jeopardy

standard are, for this species,

indistinguishable, the listing of the

spectacled eider initiated the

requirement for consultation. This

critical habitat designation adds no

additional requirements not already in

place due to the species’ listing.

Comment 33: Some commenters

stated that the proposed critical habitat

designation was inconsistent with the

guidelines set forth in the Act because

it encompassed more habitat than is

necessary for the conservation of the

species.

Our response: The critical habitat

areas identified in the proposed rule

constituted our best assessment of the

areas needed for the species’

conservation using the best available

scientific and commercial data that was

available to us at the time. During the

public comment period for the proposed

rule we received additional information

and recommendations from eider

experts, individuals with traditional

environmental knowledge of the

species’ habitat needs and patterns of

use, and other individuals and

organizations that enabled us to refine

our assessment of the areas needed to

ensure survival and recovery of the

species. The critical habitat designated

in this rule reflects our assessment of

the areas needed for the conservation of

spectacled eiders in accordance with the

parameters set forth in the Act’s sections

3(5)(A) and 4(b)(2) and as described in

the section of this rule titled ‘‘Critical

Habitat.’’ We will continue to monitor

and collect new information and may

revise the critical habitat designation in

the future if new information supports

a change.

Comment 34: Several commenters

stated that our previous determination

that designation of critical habitat was

‘‘not prudent’’ was the appropriate

decision for this species. These

commenters criticized us for agreeing to

reevaluate critical habitat for the

spectacled eider in response to

litigation, and stated that additional

biological information is necessary

before critical habitat for spectacled

eiders can be reevaluated.

Our response: At the time the initial

‘‘not prudent’’ determination was made

for this species, we believed that

designation afforded few, if any,

benefits to the species beyond those

conferred by listing. In general, Federal

Courts have not agreed with our

analysis of the benefits of critical habitat

and during the last several years have

overwhelmingly ruled that the Service

must in almost all cases designate

critical habitat for listed species. In

March 1999, a lawsuit challenging our

decision to not designate critical habitat

for the spectacled eider was filed. In

light of recent court rulings, we opted to

reconsider our earlier prudency

decision, as stipulated in the terms of a

settlement agreement, rather than

expend our limited resources on

protracted litigation.

We recognize that there may be

informational or educational benefits

associated with critical habitat

designation. Furthermore, we have

gathered a tremendous amount of

additional biological information on this

species since the time of its listing,

making our reevaluation of critical

habitat both necessary and timely. This

additional information concerning the

biology and ecology of this species has

helped us identify more specifically the

types and locations of habitat that are

essential to its conservation. While there

is still much to be learned about this

species, the information currently

available to us supports our

determination that designation of

critical habitat is prudent, and that the

areas we are designating as critical

habitat are essential to the conservation

of the species and may require special

management considerations or

protections.

Comment 35: One commenter stated

the designation of critical habitat should

not occur until discussions had been

held to ensure that the designation is

consistent with international

management regimes, such as those

under the auspices of the Migratory Bird

Treaty Act and the Arctic Council’s

working group for the Conservation of

Arctic Flora and Fauna.

Our response: We agree that

collaboration and consistency with

international efforts to conserve the

eider are very important. We have a

working relationship with eider experts

in Russia, and our research and

management efforts are complimentary

to those conducted under other

conservation programs. We will

continue to coordinate with other

research and conservation entities. The

parameters set forth in the Act and the

settlement agreement preclude deferral

of designation of critical habitat for this

species pending discussions of the type

suggested by the commenter.

Comment 36: One respondent pointed

out that critical habitat designation will

result in the need to reinitiate section 7

consultation on projects on which

consultation has previously been

completed.

Our response: We agree. Regulations

at 50 CFR 402.16 require Federal

agencies to reinitiate consultation on

previously reviewed actions when

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9169

critical habitat is designated subsequent

to consultation. However, this

reinitiation need be undertaken only if

the action is ongoing. We are in the

process of contacting Federal agencies

to inform them that they should review

their ongoing actions that have been

previously consulted upon to determine

if the reinitiation of consultation is

warranted.

Comment 37: There are no benefits of

designating critical habitat.

Our response: We disagree. We

believe that critical habitat designation

contributes to species conservation by

identifying important habitat for the

species and by describing habitat

features that are thought to be essential

for the species. This can alert public and

private entities to the area’s importance

and result in cooperative strategies for

habitat conservation. In particular,

critical habitat designation makes it

clear to Federal agencies that

consultation under section 7 of the Act

is required for all actions that may affect

the species or its habitat.

Comment 38: One commenter asked

whether critical habitat designation

would shorten the permitting process

for the oil industry or reduce the

obligation of the oil industry to seek

Native concurrence.

Our response: We believe that

designating critical habitat will neither

simplify nor complicate the Federal

permitting process for any actions,

including oil exploration or

development. Because the only

regulatory affect of critical habitat

designation is through section 7 of the

Act, which only affects Federal actions

and permitting, it should not affect

interactions between Alaska Natives and

the oil industry.

Issue 3: Economic Issues

Comment 39: Many commenters

disagreed with our assessment that the

designation of critical habitat for the

spectacled eider would not lead to any

new section 7 consultations and our

conclusion, as a result, that economic

impacts of the proposed designation

would be minimal.

Our response: Because the spectacled

eider is a federally protected species

under the Act, Federal agencies are

already required to consult with us on

any actions they authorize, fund, or

carry out that may affect this species.

For Federal actions that may adversely

affect spectacled eiders, Federal

agencies need to enter into a formal

section 7 consultation process with us

to avoid violating section 9 of the Act,

which makes it unlawful for any person

to ‘‘take’’ a listed species. The term

‘‘take’’ is defined by the Act (section

3(18)) to mean ‘‘to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture,

or collect, or to attempt to engage in any

such conduct.’’ The U.S. Supreme Court

clarified the definition of harm to

include adverse modification of habitat

(Sweet Home Chapter of Communities

for a Great Oregon, et al. v. Babbitt, 515

U.S. 687 (1995).

We are only designating critical

habitat that is occupied by the eiders,

essential to the conservation of the

species, and may require special

management considerations or

protections. While this designation will

require Federal agencies to further

consider whether the actions they

authorize, fund, or carry out within

designated critical habitat boundaries

may affect the habitat, it is unlikely that

an agency could conclude that an action

may affect designated critical habitat

without simultaneously concluding that

the action may also affect the eiders

given the presence of eiders within

designated critical habitat.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of both the survival and

recovery of a listed species. Actions

likely to result in the destruction or

adverse modification of critical habitat

are those that would appreciably reduce

the value of critical habitat for both the

survival and recovery of the listed

species. Common to both definitions is

an appreciable detrimental effect on

both survival and recovery of a listed

species. Given the similarity of these

definitions, actions likely to result in

the destruction or adverse modification

of critical habitat would almost always

result in jeopardy when the area of the

proposed action is occupied by

spectacled eiders.

While Federal agencies will be

required to consider the effect of their

actions on critical habitat in

determining whether or not to consult

with us under section 7 of the Act, the

designation of critical habitat for

spectacled eiders will not affect

activities undertaken within critical

habitat boundaries that do not involve a

Federal nexus. While any person, public

or private, is required to ensure that

their actions do not result in the taking

of a federally listed species, only

Federal agencies are required to consult

with us about their action’s effect on

designated critical habitat under section

7 of the Act. Persons undertaking

activities within critical habitat

boundaries that do not have a Federal

nexus (i.e., Federal funds or permits)

and that do not result in either the

direct or indirect taking of a federally

protected species are not required to

consult with us concerning the effect

their activities may have on designated

critical habitat.

Comment 40: Many commenters

stated that by designating critical habitat

for spectacled eiders, section 7

consultation costs would likely increase

due to the extra resources needed to

determine whether a proposed

government action could result in the

destruction or adverse modification of

designated critical habitat.

Our response: We disagree that the

designation of critical habitat for

spectacled eiders would significantly

increase the costs associated with

conducting a section 7 consultation.

First, as previously described, we have

only proposed to designate occupied

habitat as critical habitat and as a result

the designation would not result in an

increase in section 7 consultations

because any Federal action that may

affect a species’ designated critical

habitat, which would trigger a section 7

consultation, would also affect the listed

species itself due to its presence in the

area. For those Federal actions that we

find may likely adversely affect a

species or its critical habitat, we already

consider habitat impacts of the

proposed action along with whether or

not an action is likely to jeopardize a

listed species or constitute ‘‘take’’

pursuant to section 9 of the Act during

the formal section 7 consultation

process. As a result, the designation of

critical habitat in the areas already

occupied by spectacled eiders will not

add any appreciable time or effort

required by an action agency, third

party applicant, or by our personnel to

conduct a section 7 consultation.

Comment 41: Some comments stated

that the economic analyses failed to

consider the effect of reinitiating

previously conducted consultations to

consider an action’s effect on designated

critical habitat.

Our response: Regulations at 50 CFR

402.16 require Federal agencies to

reinitiate consultation on previously

reviewed actions in instances where

critical habitat is subsequently

designated. Because we have already

considered the habitat impacts of the

action during the consultation process,

9170 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

we do not believe that any significant

resources would be expended by either

the action agency or by our personnel to

comply with the reinitiation

requirement. We anticipate fulfilling the

requirements of 50 CFR 402.16 by

sending a letter to an action agency

undertaking activities on which we have

already consulted, and requesting that

they make a determination as to

whether the ongoing action may affect

designated critical habitat. Because

habitat impacts were already considered

as part of the initial consultation, we

believe that most, if not all non-jeopardy

activities already consulted upon will

likely not adversely modify or destroy

critical habitat. We are committed to

working with all Federal agencies that

may be affected by the designation of

critical habitat to expedite any

consultations that require reinitiation.

Comment 42: The draft economic

analysis failed to consider that

Nationwide permits under section 404

of the Clean Water Act will no longer be

allowed without a section 7

consultation.

Our response: The conditions,

limitations, and restrictions of the Army

Corps Nationwide permit program state

in 33 CFR 330.4 that no activity is

authorized by any nationwide permit if

that activity is likely to jeopardize the

continued existence of a threatened or

endangered species as listed or

proposed for listing under the Act or to

destroy or adversely modify the critical

habitat of such species. Federal agencies

are required to follow their own

procedures for complying with the Act

while non-federal permittees are

required to notify the District Engineer

(DE) if any federally listed (or proposed

for listing) endangered or threatened

species or critical habitat might be

affected or is in the vicinity of the

project. In such cases, the prospective

permittee may not begin work under

authority of the nationwide wetland

permit until notified by the DE that the

requirements of the Act have been

satisfied and that the activity is

authorized. If the DE determines that the

activity may affect any federally listed

species or critical habitat, the DE must

initiate section 7 consultation in

accordance with the Act. Because we

are only designating occupied habitat as

critical habitat for spectacled eiders,

prospective permittees already are

required to notify the Army Corps of

their activities within these areas. As a

result, we do not anticipate that critical

habitat designation for spectacled eiders

would result in any additional section 7

consultations with the Army Corps

concerning activities needing a general

permit to proceed.

Comment 43: Some commenters

stated that minor permitting delays,

resulting from an increase in section 7

consultations, can result in a year-long

delay given the limited operation

windows due to climate conditions in

Alaska. As a result, these commenters

believed that marginal projects may face

funding losses as financing capital is

withdrawn due to increased uncertainty

associated with such a project.

Our response: We disagree that there

will be an increase in section 7

consultations that will be attributable to

critical habitat designation for

spectacled eiders. Federal agencies are

already required to consult with us in

situations where actions they undertake,

fund, or permit may adversely affect the

eiders. We do not believe that the

designation of critical habitat will

lengthen the section 7 process because

we already consider habitat impacts as

part of the consultation process.

Because we are only designating critical

habitat in areas that are occupied by the

eiders, we do not believe that there will

be an increase in section 7 consultations

due to the designation.

Comment 44: Several commenters

stated that the draft economic analyses

failed to adequately address critical

habitat effects on the North Slope

petroleum economy, including the costs

associated with section 7 consultations

and project modifications, which may

result in project delays and reduced

development, associated effects on the

regional and State economy, and land

value impacts in areas where

production may be curtailed.

Our response: Our draft economic

analyses for the proposed critical habitat

rule discussed the potential economic

impacts to the oil and gas industry

operating on the North Slope.

Specifically, we discussed the

responsibilities of the Bureau of Land

Management and the Minerals

Management Service in managing oil

and gas exploration and production

drilling in this area and their current

responsibility to consult with us on

activities they authorize, fund, or carry

out that may affect spectacled eiders.

The analyses discussed previous

consultations with these Federal

agencies concerning oil and gas

activities and concluded that for section

7 consultations for which a ‘‘not likely

to adversely affect’’ determination was

made by the agency, and for which we

concurred, we fully expect to concur

with a corresponding determination that

such an action is not likely to result in

the destruction or adverse modification

of critical habitat. Only for those actions

resulting in jeopardy to spectacled

eiders would we expect to meet the

threshold for destruction or adverse

modification of critical habitat during

the section 7 process. Similarly, we

believed that property value decreases,

to the extent that they can be attributed

to spectacled eiders and result in actual

restrictions in land use, would be a

result of the listing of the species as a

federally protected species and not

because of critical habitat designation.

Consequently, we do not believe that

critical habitat designation, as proposed,

would have an adverse effect on oil and

gas industry operations on the North

Slope nor have any indirect effects on

the regional or State economy. In this

final rule, however, we have withdrawn

the North Slope unit from critical

habitat designation. As a result, the

concerns expressed in this comment are

no longer an issue relevant to the final

designation.

We recognize that designation of

critical habitat may not include all of

the habitat areas that may eventually be

determined to be necessary for the

recovery of the species. For these

reasons, all should understand that

critical habitat designations do not

signal that habitat outside the

designation is unimportant or may not

be required for recovery. Areas outside

the critical habitat designation will

continue to be subject to conservation

actions that may be implemented under

section 7(a)(1) and to the regulatory

protections afforded by the section

7(a)(2) jeopardy standard and the

section 9 take prohibition, as

determined on the basis of the best

available information at the time of the

action. We specifically anticipate that

federally funded or assisted projects

affecting listed species outside their

designated critical habitat areas may

still result in jeopardy findings in some

cases. Similarly, critical habitat

designations made on the basis of the

best available information at the time of

designation will not control the

direction and substance of future

recovery plans, habitat conservation

plans, or other species conservation

planning efforts if new information

available to these planning efforts calls

for a different outcome.

Comment 45: One commenter

believed that the economic analyses

failed to adequately address potential

benefits associated with critical habitat

designation.

Our response: We believe that many

of the benefits to the species that result

from critical habitat will be noneconomic in nature. Critical habitat

designation for spectacled eiders may

have some educational benefit to

Alaskans. Other benefits may result

from Federal agencies becoming more

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9171

aware of their obligation to consult on

their activities as per section 7 of the

Act. However, because we are

designating only occupied habitat as

critical habitat for spectacled eiders, we

believe that the economic consequences

(both positive and negative) associated

with the designation are limited. We

arrive at this conclusion because the

designation of critical habitat is unlikely

to have any significant effect on both

current and planned economic activities

within the designated areas. For reasons

previously stated, Federal agencies are

already required to consult with us on

activities that may affect spectacled

eiders.

Comment 46: The analysis ignores the

effect that critical habitat designation

may have on commercial fisheries, such

as those occurring in the Bering Sea,

along the Alaska Peninsula, and in Cook

inlet based on judicial rulings on the

fisheries impact on critical habitat for

the Steller sea lions.

Our response: On July 20, 2000, U.S.

District Court Judge Thomas S. Zilly

issued an injunction on all groundfish

trawl fishing within federally regulated

waters of the Bering Sea/Aleutian

Islands and the Gulf of Alaska within

Steller sea lion critical habitat. The

judge issued this injunction because he

found that the NMFS failed to issue a

legally adequate biological opinion

addressing the combined, overall effects

of the North Pacific groundfish trawl

fisheries on Steller sea lions and their

critical habitat pursuant to the Act. It is

important to note that while the judge

limited fishing within Steller sea lion

critical habitat, he issued the injunction

primarily out of concern that NMFS

failed to comply with section 7 of the

Act. Consequently, we do not believe

that critical habitat designation for the

Steller sea lion played a significant role

in the judge’s decision to issue the

injunction but rather was simply used

by the judge to determine the

boundaries of the injunction.

Our analyses did not address the

potential effects of third-party lawsuits

directly due to the limited information

and experience that critical habitat

designation could have on such a

lawsuit. However, we recognize that it

is possible that some third parties may

elect to sue us over future decisions we

may make about whether an activity

adversely modifies critical habitat. As of

yet, we have not faced any such

lawsuits and because we are only

designating occupied eider habitat as

critical habitat, we find it highly

unlikely that we would ever determine

that a Federal action could adversely

modify critical habitat without

simultaneously jeopardizing the

continued existence of spectacled eiders

due to the similarity between the two

definitions.

Our economic analyses did address

the potential for impacts to commercial

fisheries resulting from proposed

critical habitat designation. In these

analyses we described how we have

conducted semi-annual formal

consultations on fisheries management

with NMFS on the Bearing Sea fisheries.

To date, we are unaware of any

spectacled eiders having been taken by

these fisheries. As a result, we

discontinued formal consultations on

this fishery and began conducting only

informal consultations. We do not

anticipate that the designation of critical

habitat will change our approach to

consultations. As a result, we do not

expect any adverse economic impacts to

occur in the Ledyard Bay, Norton

Sound, and St. Lawrence/St. Matthew

Islands spectacled eider critical habitat

areas as a result of this final rule. As a

result, we believe the potential for a

third-party lawsuit that could affect the

commercial fishing industry as a result

of critical habitat designation is

minimal.

Comment 47: Several commenters

stated that the economic analysis is

flawed because it does not quantify any

of the expected impacts that may result

from critical habitat designation.

Our response: The draft economic

analyses did not identify any potential

impacts associated with critical habitat

designation for spectacled eiders. As a

result, the analysis was unable to

quantify any effects. Although the

analyses acknowledged the possibility

of impacts associated with project

delays and other activities due to

section 7 consultations (the Act only

requires Federal agencies to consult

with us concerning the effect their

actions may have in critical habitat

areas), we are only designating occupied

habitat as critical habitat for spectacled

eiders. Because Federal agencies are

already required to consult with us

concerning the effect their activities

may have on spectacled eiders in these

areas, we do not believe that the

designation will result in any additional

impacts. While the Act requires Federal

agencies to consult with us on activities

that adversely modify critical habitat,

we do not believe that within areas

being designated as critical habitat for

spectacled eiders there will be any

Federal government actions that will

adversely modify critical habitat

without also jeopardizing spectacled

eiders due to their presence in

designated critical habitat areas.

We have also recognized that in some

instances, the designation of critical

habitat could result in a distorted real

estate market because participants may

incorrectly perceive that land within

critical habitat designation is subject to

additional constraints. However, we do

not believe that this effect will result

from the designation of critical habitat

for spectacled eiders. We arrived at this

determination based on the fact that we

believe that critical habitat designation

for spectacled eiders will not add any

additional protection, beyond that

associated with the addition of the

species to the list of federally protected

species. As a result, we believe that any

resulting real estate market distortion

would be temporary and have a

relatively insignificant effect as it

should become readily apparent to

market participants that critical habitat

for spectacled eiders is not imposing

any additional constraints on landowner

activities beyond any currently

associated with the listing of spectacled

eiders.

Comment 48: Some commenters

stated that the analysis does not

consider the cumulative impact of

added uncertainty for projects.

Our response: While our economic

analyses identified some of the concerns

stakeholders may have regarding our

concern over current or anticipated

activities on eider critical habitat, we do

not believe that the designation of

critical habitat for spectacled eiders will

impose any additional restrictions or

considerations on projects having a

Federal nexus. While section 7

consultations could lead to project

delays if they are not properly

anticipated for by project planners, we

do not believe that the designation of

critical habitat will result in any new or

additional section 7 consultations above

and beyond those that would be

required due to an activity’s potential to

affect spectacled eiders. We already

consider the impact that an action has

on the eider’s habitat as part of our

current section 7 process so we do not

believe that the section 7 process will

take any longer than it currently does

once critical habitat is designated.

Comment 49: Some commenters felt

that the economic analysis is flawed

because it is based on the premise that

we have proposed designating only

occupied habitat as critical habitat and

that the economic analysis was wrong to

assume that all future section 7

consultations within designated critical

habitat would occur regardless of

critical habitat designation due to the

presence of spectacled eiders.

Our response: The determination of

whether or not designated critical

habitat is occupied by spectacled eiders

is part of a biological decision-making

9172 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

process and lies beyond the scope of an

economic analysis. The Act requires all

Federal agencies to consult with us on

government actions that may either

directly or indirectly affect a listed

species. Even without critical habitat

designation, Federal agencies would be

required to consult with us on actions

that could adversely modify eider

habitat because such actions could also

affect spectacled eiders for reasons

previously explained. Consequently, we

do not believe that the designation of

critical habitat for spectacled eiders in

occupied habitat areas will lead to any

economic impacts beyond those

currently imposed as a result of the

listing.

Comment 50: Some commenters

believed that we failed to adequately

address the requirements of the Small

Business Regulatory Enforcement

Fairness Act in our draft economic

analysis.

Our response: The Regulatory

Flexibility Act, as amended by the

Small Business Regulatory Enforcement

Fairness Act, generally requires an

agency to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities. We

are certifying that this rule will not have

a significant economic impact on a

substantial number of small entities and

as a result we do not need to prepare

either an initial or final regulatory

flexibility analysis.

We have based our finding on the fact

that this rule will not result in any

significant additional burden to the

regulated community, regardless of the

size of the entity. Our economic analysis

identified several potential impacts

associated with critical habitat

designation, including increased

consultation costs, project modification

costs, and potential temporary decreases

in property values. However, because

we have only designated property that

is within the geographic range occupied

by spectacled eiders and because

spectacled eiders are already federally

protected species, other Federal

agencies are already required to consult

with us on activities that they authorize,

fund, or carry out that have the potential

to jeopardize spectacled eiders. Any

associated costs related to these section

7 consultations, including project

modifications, will therefore be

attributable to the listing of the species

and not to designation of critical habitat

due to the similarity in the definition of

jeopardy and adverse modification. In

other words, Federal actions that could

appreciably reduce the value of critical

habitat for both the survival and

recovery of spectacled eiders would

also, by default, ‘‘jeopardize the

continued existence’’ of spectacled

eiders due to the action’s ability to

appreciably reduce the likelihood of

both the survival and recovery of the

species due to its presence in critical

habitat areas.

Issue 4: Other Relevant Issues

Comment 51: Many respondents were

concerned that designating critical

habitat will invite lawsuits by those

aiming to obstruct oil development on

the North Slope.

Our response: We cannot predict what

future litigation may be brought under

the Act, nor can we use the threat of

litigation as an excuse for not

designating critical habitat. The Act and

regulations at 50 CFR 424.12 require us

to designate critical habitat to the

maximum extent prudent, and require

that we base critical habitat

determinations on the best scientific

and commercial data available and that

we consider those physical and

biological features that are essential to

the conservation of the species and that

may require special management

considerations and protection.

Comment 52: A few respondents

asked whether it is possible that there

will be additional time in which to

submit comments and whether another

draft will be presented for public

comment before the final rule.

Our response: Our public comment

period of 231 days (February 8, 2000—

September 25, 2000) was nearly four

times the length of public comment

period required by regulation. We

extended the open comment period on

three separate occasions to

accommodate interested parties. We

believe that we allowed ample time for

comments. Our proposed rule published

on February 8, 2000, and the draft

economic analysis represent the only

documents for which public comment

will be sought relative to this

rulemaking. However, we welcome at

any time new information on the life

history, distribution, and status of the

spectacled eider, as well as information

on the quality, quantity, and viability of

the habitats it uses.

Comment 53: A few respondents

asked whether critical habitat could be

the first step towards making the area a

refuge.

Our response: Critical habitat

designation is completely unrelated to

the formation of wildlife refuges, and in

no way affects or is a precursor to

establishment of a wildlife refuge.

Critical habitat can be designated on

existing parks and refuges, state, and

private lands. Such designation carries

with it no implication of future land

ownership change, nor does it allow for

public access to private land.

Comment 54: One respondent stated

that our proposal resulted from a

politically motivated decision.

Our response: Our proposal resulted

from an out-of-court settlement in

which we agreed to reexamine our

initial decision that designation of

critical habitat for this species was not

prudent. We objectively reexamined the

best scientific and commercial data

available to us at the time, determined

that designation of critical habitat was

prudent, and developed the proposal

upon which this final rule is based.

Comment 55: One respondent stated

that designating critical habitat ensures

collaboration between Federal, State,

and Private agencies and industries, and

that it would foster comprehensive

planning and wise management.

Our response: We pursue

comprehensive planning and

management opportunities regardless of

the presence of critical habitat.

However, we note that the heightened

awareness surrounding conservation

issues and the delineation of critical

habitat areas on maps has resulted in

agencies becoming more fully aware of

the need to consult with us under

section 7 of the Act. In addition, we

believe that the critical habitat maps

and description make it easier for all

involved to know whether any

particular activity is located in an area

important to threatened and endangered

species.

Comment 56: One respondent stated

that designating as critical habitat the

large area proposed on the North Slope

would harm listed eiders by irreparably

damaging cooperative and collaborative

working relationships between the

Service and local and Native

governments.

Our response: We regard working

relationships with local and Native

governments to be essential for effecting

the recovery of spectacled eiders on the

North Slope. We note numerous

cooperative conservation actions that

are in progress, including jointly

conducted or funded research and

monitoring projects, efforts to eliminate

the use of lead shot by waterfowl

hunters, and public education projects.

We agree that any action that damages

these cooperative efforts will harm

listed eiders. It should be noted that in

this final rule, we have withdrawn the

North Slope unit from critical habitat

designation primarily for the reason

cited by this respondent. Section 4(b)(2)

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9173

of the Act says that we may choose to

not designate critical habitat on an area

if the relevant impacts of such

designation outweigh the benefits of

such a designation. We determined that,

on the North Slope, this would be the

case (see Rationale for the Final

Designation section).

Comment 57: One respondent

challenged our metric/English

conversions (40 km = 25 nm) used to

describe critical habitat units,

contending the imprecision in this

conversion could cause ambiguity in

unit boundaries.

Our response: We believe that our use

of significant digits in our metric to

English conversion factors was

commensurate with the accuracy of our

information regarding the locations of

birds on the ground or water. There is

a discrepancy of approximately 820 feet

(250 m) between the two distances from

shore that we cited (40 km and 25 nm).

This difference amounts to

approximately one half of 1 percent of

the width of the proposed area.

Nevertheless, we recognize that this

discrepancy has the potential to cause

future confusion. The critical habitat

units to which this comment applies are

the coastal waters of the Y–K Delta and

North Slope. We note that future

confusion over the precise location of

these boundaries has been mooted

because these marine areas have been

eliminated from our final critical habitat

designation.

Comment 58: The risks of not

designating or designating too small an

area appear greater than the risks of

designating too large an area.

Our response: We believe that any

risks associated with the designation of

critical habitat derive from

misperceptions surrounding critical

habitat, and the way in which these

misperceptions may affect working

relationships between parties with

conflicting interests or goals.

Conversely, we do not believe that there

are notable risks to the listed species

that would result from a failure to

designate critical habitat.

Comment 59: One respondent asked

whether critical habitat remains forever

or is eliminated if the species is

delisted.

Our response: The critical habitat

designation is removed at the time the

species is delisted.

Comment 60: The oil industry

commented that the original listing of

eiders and subsequent critical habitat

designation may have indirect negative

effects on eiders by stimulating more

intrusive research on the North Slope

and elsewhere, resulting in increased

disturbance during nesting.

Our response: The only effect of

critical habitat designation is through

section 7 of the Act, which requires

Federal agencies to consult with the

Service on actions they permit, fund, or

conduct that may adversely affect listed

species or adversely modify or destroy

critical habitat. We believe that neither

the need to consult or outcome of

consultations will be affected by critical

habitat designation because we

currently consider the potential habitat

impacts of proposed projects during

consultation. Any research on the North

Slope or anywhere else in the occupied

range of the spectacled eider that might

result in ‘‘take’’ occurring would require

a section 10(a)(1)(A) permit from the

Service. If the authorization of such a

permit may affect a listed species, an

intra-agency section 7 consultation must

be initiated. Any such consultation will

consider any direct, indirect,

interrelated, or interdependent effects of

the action. No permits would be issued

if significant adverse impacts were

anticipated.

Comment 61: Preventative measures

like critical habitat designation are

cheaper and more productive and

efficient than piecemeal restoration after

environmental damage is done.

Our response: We view critical habitat

as more of an educational tool than as

a preventive measure. Critical habitat

designation adds few, if any, regulatory

requirements, and it is difficult to

envision a scenario in which critical

habitat may prevent any action from

occurring that would not already be

prevented by virtue of the presence of

the listed species itself. An exception to

this would be if a project were to

adversely modify or destroy critical

habitat that had been designated in

unoccupied habitat. However, we have

not designated any unoccupied habitat

as critical habitat for the spectacled

eider.

Summary of Changes From the

Proposed Rule

Based on a review of public

comments received on the proposed

determination of critical habitat for the

spectacled eider, we reevaluate our

proposed designation of critical habitat

for the species. This resulted in eight

significant changes that are reflected in

this final rule. These are—(1) the

reduction in size of the minimum

mapping unit from township to section

for terrestrial critical habitat; (2) the

elimination of Proposed Unit 1 (North

Y–K Delta Unit); (3) exclusion of lands

within Proposed Units 3 and 4 (Central

and South Y–K Delta Units,

respectively) that are not within the

vegetated intertidal zone; (4) the

elimination of marine waters associated

with Units 1, 3, and 4; (5) the

elimination of Proposed Unit 5 (North

Slope Unit); (6) the reduction in size of

Proposed Unit 6 (Norton Sound Unit);

(7) the reduction in size of Proposed

Unit 7 (Ledyard Bay Unit); and (8)

refinement in the definition of primary

constituent elements for all units. A

detailed discussion of the basis for

changes from the proposed rule can be

found under the Rationale for the Final

Designation section.

We changed our level of resolution

from townships to sections in an effort

to minimize inclusion of nonessential

and unsuitable habitats within our

critical habitat border. Although doing

so resulted in a reduction of total area

included as critical habitat, we do not

believe that it resulted in any exclusion

of habitat that contained the primary

constituent elements found in the

vegetated intertidal zone.

Economic Analysis

Section 4(b)(2) of the Act requires us

to designate critical habitat on the basis

of the best scientific and commercial

data available and to consider the

economic and other relevant impacts of

designating a particular area as critical

habitat. We may exclude areas from

critical habitat upon a determination

that the benefits of such exclusions

outweigh the benefits of specifying such

areas as critical habitat. We cannot

exclude such areas from critical habitat

when such exclusion will result in the

extinction of the species.

Economic effects caused by listing the

spectacled eider as a threatened species

and by other statutes are the baseline

against which the effects of critical

habitat designation are evaluated. The

economic analysis must then examine

the incremental economic and

conservation effects and benefits of the

critical habitat designation. Economic

effects are measured as changes in

national income, regional jobs, and

household income. A draft analysis of

the economic effects of spectacled eider

critical habitat designation was

prepared (Industrial Economics,

Incorporated, 2000) and made available

for public review (August 24, 2000; 65

FR 51577).

The final analysis, which reviewed

and incorporated public comments,

concluded that no significant economic

impacts are expected from critical

habitat designation above and beyond

that already imposed by listing the

spectacled eider. The most likely

economic effects of critical habitat

designation are on activities funded,

authorized, or carried out by a Federal

agency. The analysis examined the

9174 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

effects of the proposed designation on:

(1) Re-initiation of section 7

consultations, (2) length of time in

which section 7 consultations are

completed, and (3) new consultations

required due to critical habitat

designation. Because areas proposed for

critical habitat are within the geographic

range occupied by the spectacled eider,

activities that may affect critical habitat

may also affect the species, and would

thus be subject to consultation whether

or not critical habitat is designated. We

believe that any project that would

adversely modify or destroy critical

habitat would also jeopardize the

continued existence of the species, and

that reasonable and prudent alternatives

to avoid jeopardizing the species would

also avoid adverse modification of

critical habitat. Thus, no regulatory

burden or associated significant

additional costs would accrue because

of critical habitat above and beyond that

resulting from listing. Our economic

analysis does recognize that there may

be costs from delays associated with

reinitiating completed consultations

after the critical habitat designation is

made final. There may also be economic

effects due to the reaction of the real

estate market to critical habitat

designation, as real estate values may be

lowered due to perceived increase in the

regulatory burden. We believe this

impact will be short-term.

A copy of the final economic analysis

and description of the exclusion process

with supporting documents are

included in our administrative record

and may be obtained by contacting our

office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

This document has been reviewed by

the Office of Management and Budget

(OMB), in accordance with Executive

Order 12866. OMB makes the final

determination under Executive Order

12866.

(a) This rule will not have an annual

economic effect of $100 million or

adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. A costbenefit and economic analysis is not

required.

The spectacled eider was listed as a

threatened species in 1993. Since it was

listed, we have conducted 5 formal

section 7 consultations on projects or

actions that were likely to adversely

affect spectacled eiders. In addition,

since 1998, we issued 17 section

10(a)(1)(A) permits for research projects

that may have affected or were likely to

adversely affect spectacled eiders. We

have not issued any section 10(a)(1)(B)

incidental take permits for this species

or within the range of this species.

The areas designated as critical

habitat are currently within the

geographic range occupied by the

spectacled eider. Under the Act, critical

habitat may not be adversely modified

by a Federal agency action; it does not

impose any restrictions on non-Federal

persons unless they are conducting

activities funded or otherwise

sponsored or permitted by a Federal

agency (Table 4). Section 7 requires

Federal agencies to ensure that they do

not jeopardize the continued existence

of the species. Based upon our

experience with the species and its

needs, we conclude that any Federal

action or authorized action that could

potentially cause adverse modification

of designated critical habitat would

currently be considered as ‘‘jeopardy’’

under the Act. Accordingly, the

designation of areas within the

geographic range occupied by the

spectacled eider does not have any

incremental impacts on what actions

may or may not be conducted by

Federal agencies or non-Federal persons

that receive Federal authorization or

funding. Non-Federal persons that do

not have a Federal ‘‘sponsorship’’ of

their actions are not restricted by the

designation of critical habitat although

they continue to be bound by the

provisions of the Act concerning ‘‘take’’

of the species.

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of the spectacled

eider since the species was listed in

1993. The prohibition against adverse

modification of critical habitat is not

expected to impose any restrictions in

addition to those that currently exist

because all designated critical habitat is

within the geographic range occupied

by the spectacled eider. Because of the

potential for impacts on other Federal

agency activities, we will continue to

review this action for any

inconsistencies with other Federal

agency actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the species, and

as discussed above we do not anticipate

that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

significant incremental effects.

(d) This rule will not raise novel legal

or policy issues. This final

determination follows the requirements

for determining critical habitat

contained in the Endangered Species

Act.

TABLE 4.—IMPACTS OF SPECTACLED EIDER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities potentially affected by species listing only 1

Additional activities potentially

affected by critical habitat

designation 2

Federal activities potentially affected 3 ................ Removing, disturbing, or destroying spectacled eider habitat

(as defined in the primary constituent elements discussion)

or appreciably decreasing habitat value or quality through

indirect effects, whether by paving, covering, draining, impounding, hydrologically altering, contaminating, or otherwise altering through mechanical means or through ecological disruption (e.g., gravel pad construction, travel by

motorized vehicle across unfrozen tundra, fuel transport

and related fueling operations, introduction of contaminants, use of lead shot while hunting, commercial fishing,

operation of open landfills and other activities that may enhance predator populations or concentrate them near

eiders, disturbance of benthic communities through trawling, offal discharge, and harvest of benthic organisms).

None.

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9175

TABLE 4.—IMPACTS OF SPECTACLED EIDER LISTING AND CRITICAL HABITAT DESIGNATION—Continued

Categories of activities Activities potentially affected by species listing only 1

Additional activities potentially

affected by critical habitat

designation 2

Private activities potentially affected 4 ................. Removing, disturbing, or destroying spectacled eider habitat

(as defined in the primary constituent elements discussion)

or appreciably decreasing habitat value or quality through

indirect effects, whether by paving, covering, draining, impounding, hydrologically altering, contaminating, or otherwise altering through mechanical means or through ecological disruption (e.g., gravel pad construction, travel by

motorized vehicle across unfrozen tundra, fuel transport

and related fueling operations, introduction of contaminants, use of lead shot while hunting, commercial fishing,

and activities that may enhance predator populations or

concentrate them near eider habitat.

None.

1This column represents the activities potentially affected by listing the spectacled eider as a threatened species (May 10, 1993, 58 FR 27474)

under the Endangered Species Act. 2This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected by

listing the species. 3Activities initiated by a Federal agency.

4Activities initiated by a private entity that may need Federal authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601

et seq.)

In the economic analysis, we

determined that designation of critical

habitat will not have a significant effect

on a substantial number of small

entities. As discussed under Regulatory

Planning and Review above and in this

final determination, this designation of

critical habitat for the spectacled eider

is not expected to result in any

restrictions in addition to those

currently in existence. As indicated on

Table 1 (see Critical Habitat Designation

section) we have designated property

owned by Federal, State and local

governments, and private property.

Within these areas, the types of

Federal actions or authorized activities

that we have identified as potential

concerns are:

(1) Regulation of activities affecting

waters of the Army Corps under section

404 of the Clean Water Act;

(2) Regulation of water flows,

damming, diversion, and channelization

by Federal agencies;

(3) Regulation of commercial fisheries

by the National Marine Fisheries

Service;

(4) Law enforcement in United States

Coastal Waters by the U.S. Coast Guard;

(5) Road construction and

maintenance by the Federal Highway

Administration;

(6) Regulation of airport improvement

activities by the Federal Aviation

Administration jurisdiction;

(7) Regulation of subsistence harvest

activities on Federal lands by the U.S.

Fish and Wildlife Service;

(8) Regulation of mining and oil

development activities by the Minerals

Management Service;

(9) Regulation of home construction

and alteration by the Federal Housing

Authority;

(10) Hazard mitigation and postdisaster repairs funded by the Federal

Emergency Management Agency;

(11) Construction of communication

sites licensed by the Federal

Communications Commission; and

(12) Wastewater discharge from

communities and oil development

facilities permitted by the

Environmental Protection Agency;

(13) Other activities funded by the

U.S. Environmental Protection Agency,

Department of Energy, or any other

Federal agency.

Many of these activities sponsored by

Federal agencies within critical habitat

areas are carried out by small entities (as

defined by the Regulatory Flexibility

Act) through contract, grant, permit, or

other Federal authorization. These

actions are currently required to comply

with the listing protections of the Act,

and the designation of critical habitat is

not anticipated to have any additional

effects on these activities.

For actions on non-Federal property

that do not have a Federal connection

(such as funding or authorization), the

current restrictions concerning take of

the species remain in effect, and this

final determination will have no

additional restrictions.

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2))

In the economic analysis, we

determined whether designation of

critical habitat would cause (a) any

effect on the economy of $100 million

or more, (b) any increases in costs or

prices for consumers, individual

industries, Federal, State, or local

government agencies, or geographic

regions in the economic analysis, or (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S.-based enterprises to compete

with foreign-based enterprises. Refer to

the final economic analysis for a

discussion of the effects of this

determination.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

Mandates Reform Act (2 U.S.C. 1501 et

seq.):

(a) This rule will not ‘‘significantly or

uniquely’’ affect small governments. A

Small Government Agency Plan is not

required. Small governments will only

be affected to the extent that any Federal

funds, permits or other authorized

activities must ensure that their actions

will not adversely affect the critical

habitat. However, as discussed in

section 1, these actions are currently

subject to equivalent restrictions

through the listing protections of the

species, and no further restrictions are

anticipated.

(b) This rule will not produce a

Federal mandate of $100 million or

greater in any year, that is, it is not a

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

The designation of critical habitat

imposes no obligations on State or local

governments.

Takings

In accordance with Executive Order

12630, the rule does not have significant

takings implications. A takings

implication assessment is not required.

As discussed above, the designation of

9176 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

critical habitat affects only Federal

agency actions. The rule will not

increase or decrease the current

restrictions on private property

concerning take of the spectacled eider.

Due to current public knowledge of the

species protection, the prohibition

against take of the species both within

and outside of the designated areas, and

the fact that critical habitat provides no

incremental restrictions, we do not

anticipate that property values will be

affected by the critical habitat

designation. While real estate market

values may temporarily decline

following designation, due to the

perception that critical habitat

designation may impose additional

regulatory burdens on land use, we

expect any such impacts to be short

term. Additionally, critical habitat

designation does not preclude

development of HCPs and issuance of

incidental take permits. Landowners in

areas that are included in the designated

critical habitat will continue to have the

opportunity to utilize their property in

ways consistent with the survival of the

spectacled eider.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. The

designation of critical habitat within the

geographic range occupied by the

spectacled eider imposes no additional

restrictions to those currently in place,

and therefore has little incremental

impact on State and local governments

and their activities. The designation

may have some benefit to these

governments in that the areas essential

to the conservation of the species are

more clearly defined, and the primary

constituent elements of the habitat

necessary to the survival of the species

are specifically identified. While this

definition and identification does not

alter where and what federally

sponsored activities may occur, it may

assist these local governments in long

range planning (rather than waiting for

case by case section 7 consultations to

occur).

Civil Justice Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that the rule does not

unduly burden the judicial system and

meets the requirements of sections 3(a)

and 3(b)(2) of the Order. We designate

critical habitat in accordance with the

provisions of the Endangered Species

Act. The determination uses standard

property descriptions and identifies the

primary constituent elements within the

designated areas to assist the public in

understanding the habitat needs of the

spectacled eider.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501)

This rule does not contain any

information collection requirements for

which OMB approval under the

Paperwork Reduction Act is required.

National Environmental Policy Act

We have determined that an

Environmental Assessment and/or an

Environmental Impact Statement as

defined by the National Environmental

Policy Act of 1969 need not be prepared

in connection with regulations adopted

pursuant to section 4(a) of the

Endangered Species Act as amended. A

notice outlining our reason for this

determination was published in the

Federal Register on October 25, 1983

(48 FR 49244). This final determination

does not constitute a major Federal

action significantly affecting the quality

of the human environment.

Government-to-Government

Relationship With Tribes

In accordance with the President’s

memorandum of April 29, 1994,

‘‘Government-to-Government Relations

with Native American Tribal

Governments’’ (59 FR 22951) and 512

DM 2, we understand that we must

relate to federally recognized Tribes on

a Government-to-Government basis.

Secretarial Order 3206 American Indian

Tribal Rights, Federal-Tribal Trust

Responsibilities and the Endangered

Species Act states that ‘‘Critical habitat

shall not be designated in such areas [an

area that may impact Tribal trust

resources] unless it is determined

essential to conserve a listed species. In

designating critical habitat, we shall

evaluate and document the extent to

which the conservation needs of a listed

species can be achieved by limiting the

designation to other lands.’’ While this

Order does not apply to the State of

Alaska, we recognize our responsibility

to inform affected Native Corporations,

and regional and local Native

governments of this proposal. During

the open comment period, we

coordinated extensively with Native

communities, sought traditional Native

knowledge, extended the open comment

period on two occasions to

accommodate the traditional Alaska

Native lifestyle, and held 16 meetings

with Native organizations, in rural

Alaska Native communities, or that

were attended by Alaska Natives.

References Cited

A complete list of all references cited

in this rule is available upon request

from the Ecological Services Anchorage

Field Office (see ADDRESSES section).

Author

The primary authors of this document

are Greg Balogh and Terry Antrobus (see

ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. In § 17.11 (h) revise the entry for

‘‘spectacled eider’’ in alphabetical order

under ‘‘BIRDS’’ to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations 9177

Species

Historic range

Vertebrate population

where endangered or

threatened

Status When

listed

Critical

habitat

Special

rules Common name Scientific name

*******

BIRDS

Eider, spectacled ........ Somateria

(=Arctonetta,

=Lampronetta,)

fischeri.

USA (AK); Russia ..... Entire ......................... T 503 17.95 (b) NA

*******

3. Amend § 17.95 (b) by adding

critical habitat for the spectacled eider

(Somateria fischeri) in the same

alphabetical order as this species occurs

in § 17.11 (h) to read as follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(b) Birds.

* * * * *

SPECTACLED EIDER (Somateria

fischeri)

1. Critical habitat units are depicted for

Unit 1 (Central Yukon-Kuskokwim Delta),

Unit 2 (South Y–K Delta Unit), Unit 3

(Norton Sound), Unit 4 (Ledyard Bay), and

Unit 5 (the Wintering Unit in the Bering Sea

between St. Lawrence and St. Matthew

Islands) for reference only. The areas in

critical habitat are described below.

2. Within these areas, the primary

constituent elements are those habitat

components that are essential for the primary

biological needs of feeding, nesting, brood

rearing, roosting, molting, migrating and

wintering. The primary constituent elements

for Units 1 and 2 (the Y–K Delta units)

include the vegetated intertidal zone and all

open water inclusions within this zone.

Primary constituent elements for the Norton

Sound Unit (Unit 3) and the Ledyard Bay

Unit (Unit 4) include all marine waters

greater than 5 m (16.4 ft) in depth and less

than or equal to 25 m (82.0 ft) in depth, along

with associated marine aquatic flora and

fauna in the water column, and the

underlying marine benthic community.

Primary constituent elements for the

Wintering Unit (Unit 5) include all marine

waters less than or equal to 75 m (246.1 ft)

in depth, along with associated marine

aquatic flora and fauna in the water column,

and the underlying marine benthic

community. Critical habitat does not include

those areas within the boundary of any unit

that do not fit the description of primary

constituent elements for that unit.

3. Critical habitat does not include existing

features and structures, such as buildings,

roads, pipelines, utility corridors, airports,

other paved areas, and other developed areas.

4. This final rule designating critical

habitat for the spectacled eider uses

published coordinates of prominent

landmarks, when appropriate, obtained from

the Dictionary of Alaska Place Names.

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Unit 1. Central Y–K Delta Unit

Seward Meridian: T19N, R91W, Sections

24, 25, 26, 33, 34, 35, 36; T19N, R90W,

Sections 13, 14, 17, 18, 19–36; T18N, R90W,

Sections 1–24, 26–33; T18N, R91W, Sections

1–5, 7–28, 33–36; T18N, R92W, Sections 10–

30; T18N, R93W, Sections 21–27; T16N,

R91W, Sections 1–36; T16N, R92W, Sections

1–4, 10–15, 21–36; T16N, R93W, Section

36;T15N, R89W, Sections 1–36; T15N, R90W,

Sections 1–36; T15N, R91W, Sections 1–36;

T15N, R92W, Sections 1–36; T15N, R93W,

Sections 1,2, 11–14, 23–26, 36; T14N, R89W,

Sections 1–36; T14N, R90W, Sections 1–36;

T14N, R91W, Sections 1–29, 32–36; T14N,

R92W, Sections 1–18, 24; T14N, R93W,

Sections 1, 12; T13N, R87W, Sections 1–36;

T13N, R88W, Sections 1–36; T13N, R89W,

Sections 1–36; T13N, R90W, Sections 1–36;

T13N, R91W, Sections 1–5, 8–17, 20–29, 32–

36; T12N, R87W, Sections 1–36; T12N,

R88W, Sections 1–29, 31–36; T12N, R89W,

Sections 1–35; T12N, R90W, Sections 1–4, 9–

14, 23–25; T12N, R91W, Sections 1–36;

T12N, R92W, Sections 1–4, 9–16, 21–28, 34–

36; T11N, R87W, Sections 1–36; T11N,

R88W, Sections 1–36, T11N, R89W, Sections

1–6, 9–12, 25–36; T11N, R91W, Sections 1–

6; T10N, R88W, Sections 1–26, 29–33, 35, 36;

T10N, R89W, Sections 1–35; T10N, R90W,

Sections 1, 2, 11–14, 24, 25; T9N, R87W,

Sections 1–35; T9N, R88W, Sections 1, 4–10,

13–36; T9N, R89W, Sections 13, 14, 23–26,

35, 36; T8N, R89W, Sections 1–5, 7–24, 26–

34; T8N, R90W, Sections 1–2, 11, 13, 14, 23–

26, 36;

Unit 2. South Y–K Delta Unit

Seward Meridian: T4N, R90W, Sections

30–32; T4N, R91W, Sections 1–3, 8–17, 20–

28, 34–36; T3N, R89W, Section 19; T3N,

R90W, Sections 4–11, 13–28, 34–36; T3N,

R91W, Sections 1–3, 11–13; T2N, R88W,

Sections 4–9, 16–22, 26–30, 32–36; T2N,

R89W, Sections 1–6, 12, 13, 24; T1N, R88W,

Sections 1–4, 11–14, 24–25.

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Unit 3. Norton Sound Unit

The area bound by the following

description: From Cape Darby (64°19′00′′ N x

162°47′00′′ W) south along the line of

longitude 162°47′00′′ W to the opposite shore

of Norton Sound (63°12′51′′ N x 162°47′00′′

W), thence along the mean low tide line of

the Alaska coast north and east to Point

Dexter (64°32′00′′ N x 161°23′00′′ W), thence

along the great circle route to the southern

bank of the mouth of Quiktalik Creek

(64°36′00′′ N x 162°18′00′′ W), and from that

point along the mean low tide line of the

Alaska coast south and west to Cape Darby

(64°19′00′′ N x 162°47′00′′ W). The lands of

Stuart Island are excluded from Unit 3.

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Unit 4. Ledyard Bay Unit

The area bound by the following

description: from the point 1 nm true north

of Cape Lisburne (68°54′00′′ N x 166°13′00′′

W), remaining 1.0 nm offshore of the mean

low tide line (maintaining a 1.0 nm buffer

from the mean low tide line) of the Alaska

coast north and east to 70°20′00′′ N x

161°56′11′′ W (1 nm offshore of Icy Cape);

thence west along the line of latitude

70°20′00′′ N to the point 70°20′00′′ N x

164°00′00′′ W; thence along a great circle

route to 69°12′00′′ N x 166°13′00′′ W; thence

due south to the point of origin1 nm true

north of Cape Lisburne (68°54′00′′ N x

166°13′00′′ W).

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Unit 5. Wintering Area Unit

The area bound by the following

description: from 61°00′00′′ N x 174°30′00′′ W

east along that latitude to 61°00′00′′ N x

169°00′00′′ W, north along 169°00′00′′ W

longitude to the south shore of St. Lawrence

Island (at 63°10′18′′ N x 169°00′00′′ W; thence

west and north along the mean low tide line

of the south shore of St. Lawrence Island to

63°30′00′′ N x 171°50′13′′ W, west to the U.S.-

Russia border at 63°30′00′′ N x 173°22′45′′ N,

southwest along the U.S.-Russia Border to

62°58′10′′ N x 174°30′00′′ W, south along

174°30′00′′ W to 61°00′00′′ N x 174°30′00′′ W.

* * * * *

Dated: January 10, 2001.

Kenneth L. Smith,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 01–1342 Filed 2–5–01; 8:45 am]

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